Pepper Spray and Other Personal Protection Devices

Pepper spray is not a firearm. It is, howewver, a weapon. Accordingly, New Jersey law regulates carriage and use of pepper spray, although not, of course, in the same way it regulates firearms.

This page discusses that regulation.

N.J.S. 2C:39-1 defines weapon as ”Anything capable of lethal use or of inflicting serious bodily injury. The term includes...any weapon or other device which projects, releases, or emits tear gas or any other substance intended to produce temporary physical discomfort or permanent injury through being vaporized or otherwise dispensed in the air.” So under New Jersey law, pepper spray is a weapon.

The principal New Jersey law that makes carrying weapons illegal is N.J.S. 2C:39-5. N.J.S. 2C:39-5 controls all weapons, including pepper spray. A different law, however, specifies exceptions that apply to pepper spray. New Jersey specifies the conditions under which pepper spray (oleoresin capsicum) and similar devices may be carried without violating laws relating to weapons. Those exceptions are in N.J.S. 2C:39-6i(1). N.J.S. 2C:39-6i(1) provides a laundry list of conditions and requirements. When these conditions and requirements are satisfied, the prohibitions contained in N.J.S. 2C:39-5 do not apply. ALL of the requirements in N.J.S. 2C:39-6i(1) must be satisfied in order to excuse compliance with the requirements of N.J.S. 2C:39-5. When one or more of these requirements are not met, the person carrying the pepper spray can be charged with a New Jersey disorderly persons offense. The minimum fine upon conviction would be $100.00.

Here are the requirements of N.J.S. 2C:39-6i(1):

The person carrying the pepper spray (or similar device) in New Jersey must be at least eighteen years old;
The person carrying the pepper spray must never have been previously convicted of a crime;
The reason for carrying the pepper spray must be personal self-defense;
The quantity of the pepper spray must not exceed three-quarters of an ounce;
The substance (whatever it is) must be not ordinarily capable of inflicting lethal injury;
The substance must be not ordinarily capable of inflicting serious bodily injury;
The substance must be intended to produce nothing more than temporary physical discomfort or disability;
The means by which these substances become activated must be through being vaporized, or otherwise dispensed in the air.

Substances having all of these qualities, by definition, are not firearms, as New Jersey defines that word. When all of the conditions above are satisfied, New Jersey laws that regulate weapons do not apply. For example, the device may be possessed even “under circumstances not manifestly appropriate for such lawful uses as it may have.” Even when all requirements of N.J.S. 2C:39-6i(1) are satisfied, however, difficulties can still arise. Here are some examples:

The “pass” that N.J.S. 2C:39-6i(1) provides applies only to N.J.S. 2C:39-5. Laws outside of N.J.S. 2C:39-5 that relate to carrying weapons still must be followed. Thus, for example, N.J.S. 2C:39-6i(1) does not excuse compliance with New Jersey state and local laws that may relate to bringing weapons to places like schools, churches, court houses, correctional facilities, and other sensitive areas. Similarly, federal laws must still be observed;
N.J.S. 2C:39-6i(1) specifies only when pepper spray can be carried. It does not affect the conditions under which pepper spray can be used. Thus a person who uses pepper spray can still be charged with simple assault, or other offenses as may apply, if the circumstances did not justify that use;
Even when used properly (and certainly when used improperly), the person who discharges pepper spray can be sued civilly. The law suit may ultimately be unsuccessful, but the wasted time and expense and anguish that every law suit causes will still exist. When intentional misuse is alleged, insurance policies that offer protection from negligent activities may not cover the event.

Tear gas is not pepper spray. Tear gas is readily capable of causing severe and permanent injury. A court could find that tear gas does not satisfy the requirements of N.J.S. 2C:39-6i(1).

Allan Marain has been representing persons charged with weapons offenses for forty-five years. He knows his way around the system. If you are charged with a weapon-related offense, including pepper spray and even tear gas, call him. He can help.

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Pepper Spray and Other Personal Protection Devices
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