Police puts Felony charge on pepper spray?

[rrruuunnn]

I just saw this on Texas news: Man admits that he is carrying pepper spray. It looked like 4 oz. But the label said law enforcement formula. The police arrested him and charged him with a felony. Now, that the grand jury declined to indict, the man wants to be expunged and compensated for law fees.

I am thinking of throwing away all my 4 oz. sprays. I have pepper spray labeled law enforcement fomula.

According to the news the law is vague about the size of bottle.

I heard someone got charged with an assissted knife as an automatic knife. So I don't carry that either.

It just seems safe to carry something with no gray areas. I am switching to 2 oz. sprays.

 

[rrruuunnn]

http://www.wfaa.com/news/crime/Possession-of-pepper-spray-lands-man-in-jail-on-felony-70591582.html

Maybe, the scanner also made the cop uncomfortable. I have a handheld scanner. But it looks like a transceiver. I've had a cop look at mine twice without a thought. Maybe, I should leave that home too.

 

[Eightball]

Each state has different laws on things like that. Just know the law.

 

[kanook]

Does your carry permit state "weapon" or just "firearm/pistol".

If it says "weapon", look to see what it defines as a "weapon".

In FL we have "concealed weapon or firearm license" (because there is really a differance) and we get to carry most of the goodies that other states can't. But as soon as we leave FL we have to abide to the next states laws.

 

[esquare]

All I have to say about this is : STUPID. Why is the public so willing to criminalize someone with a felony for possession of some common object? I used to think that this is all the government's fault, but clearly if the people of Texas don't get 'up in arms' because of something like this, then they only have themselves to blame.

Sorry, I'm a little grumpy today.

 

[rrruuunnn]

Texas CHL only gives right to carry handgun.

Texas penal code says chemical dispensing device is illegal unless it is a "small chemical dispenser sold commercially for personal protection." Apparently, the judge and police decides what is considered small and commercially available. I bought almost the exact spray can that the man was charged with (4 oz. "law enforcement formula."

BTW, all the websites selling on the internet will claim that the 4 oz. bottles are legal in Texas. Have you seen these bottles. They are not small.

I'm only posting this (logistcally and practically) so others can be forwarned that their record and CHL is at jeopardy. I am not willing to carry a legal device unless I'm sure there is no possiblity for prosectution.

I am going to throw away all my pepper sprays to replace them with smaller cans. I don't see the risk of having a $7000 lawsuit with a criminal record. I have a fabulous lawyer. I just don't see having an extra few ounces with the words "law enforcement formula" is worth all this trouble.

 

[KBintheSLC]

It is amazing how liberal TX is becoming. Everything is so backwards... NJ got sick of their liberals, and TX is becoming infested by theirs. What is the world coming to?

 

[kanook]

Don't throw away. Keep for home use, or is that wrong too?

 

[TexasRifleman]

You guys DID notice that he was no billed right?

That means he did NOT break the law.

What you have here is an LEO that is in need of some retraining.

That's all this is. The guy will win some money maybe and hopefully the department will make sure their people have a clue regarding the law.

 

[rrruuunnn]

The law says for "possess". I think possess also includes home. Correct me if I'm wrong.

Sec. 46.05. PROHIBITED WEAPONS. (a) A person commits an offense if he intentionally or knowingly possesses, manufactures, transports, repairs, or sells:

(1) an explosive weapon;

(2) a machine gun;

(3) a short-barrel firearm;

(4) a firearm silencer;

(5) a switchblade knife;

(6) knuckles;

(7) armor-piercing ammunition;

(8) a chemical dispensing device; or

(9) a zip gun.

14) "Chemical dispensing device" means a device, other than a small chemical dispenser sold commercially for personal protection, that is designed, made, or adapted for the purpose of dispensing a substance capable of causing an adverse psychological or physiological effect on a human being.

 

[BigMustard]

"He lost $6,200 in expenses related to the arrest and hiring an attorney, he said".

That's the part of our "justice" system that is so incredibly flawed. If he would have been stopped by any other officer, he would have been fine. It said there were four officers present and only one thought it was illegal. Police these days are out of control, it seems all they care about is making arrests and punishing people. What ever happened to "Protect and serve"?

 

[rrruuunnn]

Maybe, would be a good idea to keep a copy of the Penal Code with the weapon's section bookmarked in the car.

 

[KyJim]

Banning pepper sprays and the like is a sore subject for me. We sent one of my teenage daughters to Washington D.C. for a summer program a couple of years ago. We were driving her up there. My wife suggested we give her some pepper spray once we got there. When I researched D.C. law, I learned my daughter would be committing a misdemeanor for possessing it and we would have committed a felony for giving it to her in D.C. Needless to say, she didn't get any pepper spray.

I simply cannot fathom why possession of a potentially life-saving item like pepper spray would be criminalized.

 

[esquare]

I simply cannot fathom why possession of a potentially life-saving item like pepper spray would be criminalized.

Obviously, I agree! A felony, for giving someone pepper spray - that could make someone's life miserable for decades! A misdemenor for your daughter carrying it? Especially in DC with its crime rate?

We need to start bringing our legislators to justice for this nonsense. I would go for a federal bill that would criminalize any person in government at any level who votes for or signs a bill that the courts ultimately rule a violation of civil rights (or is unconstitutional in general - hey, they swore to uphold it in the first place!). This idea that legislators can just make laws without personal consequence is ridiculous and even when they are overturned by the court, there is no punishment for those who enacted them.

 

[kingpin008]

unless it is a "small chemical dispenser sold commercially for personal protection." Apparently, the judge and police decides what is considered small and commercially available.

Did you buy your spray at a commercial establishment? Do they still sell that type of spray, or a similar type (size, strength, etc)? If so, the judge can't "decide" what's considered what - it's plain as day.

And others have mentioned, the fellow was not convicted. That means he's not guilty. That means that he was falsely charged, and likely can regain the money he's out from having to fight the charge.

Go ahead and throw out your spray, if you want, but understand that by doing so, you're not helping anything, or yourself. If more people knew and understood the law and weren't afraid of "what might happen", the idiots who pull thse kinds of stunts might start to wise up.

 

[hankster]

The officers debated as to whether the container was "small". This is the result of stupidity by those in authority. I think the guy has good grounds for a lawsuit against the LEO and the town. Most juries would be sympathetic to a guy being out thousands of dollars to fight stuff like this.

Hankster

PS. I also think laws that use terms like small, large, etc. should be void for vagueness because what is small or large can be interpreted differently by everyone. It would be clearer to have the law simply say "less than 6 fluid ounces" for example.

 

[TexasRifleman]

I also think laws that use terms like small, large, etc. should be void for vagueness because what is small or large can be interpreted differently by everyone. It would be clearer to have the law simply say "less than 6 fluid ounces" for example.

No, the law is clear, it's the officers understanding of English that is the problem.

"Commercially sold". That's very easy to define. Sold to the general public, that's commercial. Items whose sale is restricted in nature would not be "commercial".

The meaning of 'small' doesn't really need to even come into the discussion.

No, this whole thing is about a cop who desperately wanted to arrest someone and made up a reason on the fly. He will pay for that, as will the department that he works for. This really is a simple thing.

 

[hankster]

The meaning of 'small' doesn't really need to even come into the discussion.

It's in the discussion already. Here's what the LEO's chief is saying:

"Is this one small?" Chief Duscio asked holding up a two ounce canister of pepper spray.

"Is this one small?" he asked holding up Simpkins' much taller four ounce black canister. "You might say it's small. I might say it's not. The law doesn't clearly state what small is or what a chemical dispensing device really is."

If these squirrel brains are going to argue about this stuff, then the law needs to be specific.

No, this whole thing is about a cop who desperately wanted to arrest someone and made up a reason on the fly. He will pay for that, as will the department that he works for.

I agree. I hope they do pay. Money is the one way to put a stop to this BS.


Hankster

 

[Grey54956]

The term small seems vague or largely irrelevant in this case. Small is a relative term.

The important phrase in the law is "sold commercially for personal protection". Basically, if it is being sold and marketed for personal protection, then it is legal. Even if it says "law enforcement formula". What does law enforcement do with the stuff... it's for their own personal protection. And if it was sold commercially, and not specifically banned from sale by Texas state law, it's good to go. Heck, if the packaging says for "personal protection" that should be good enough.

I think this might be a good case for false arrest or infringement of civil rights. Lawyer up and squeeze them for the money. The guy may be a little paranoid or slightly off, what with the description of his truck, but wearing a tinfoil hat isn't illegal...

As far as size goes, I would happily argue that anything man portable would qualify as suitable for personal protection. Whether it's 2 oz., 4 oz., or a fire extinguisher full of pepper spray. Never know, you may need to hose down four or five guys at the same time. Once it's truck mounted or crew served, it's no longer small and probably doesn't really fit for "personal" protection, but more suited for "area denial" or "crowd control"...

 

[Zoogster]

I always thought laws on pepper spray were silly.

I can still recall when there were almost no laws on it in most states.
They didn't have any restrictions on the strength, concentration, or amount.
Pepper spray was released widespread in 1991, and there was very few restrictions most places until the late 90s.


4oz was the standard size before they started making smaller key chain versions.
It is the size mailmen have been carrying for as long as they had some form of chemical spray. Mace, CS, and related products before pepper spray replaced them.



The bear sprays at 16 oz commercially available for self defense against animals are where they get large.
These are also about the same size as the typical Law Enforcement foggers.

(16 oz bear spray)

(17.4 oz LEO fogger)

Some civilian sprays are also sold for RV and home protection in similar sizes:

(16 oz spray)

There is actually many sizes available. They even have huge fire extinguisher containers full of it. They use such things in law enforcement and especially corrections:

(46 oz spray)

(25 and 50 oz tanks)


I have also made extract from my own habanero peppers stronger than anything sold and concentrated it, for a food additive. A couple drops goes a long way. Food additive OC is actually sold at the commercial level which is much stronger than any spray, and it is where most of the OC spray manufacturers obtain theirs.
They then dilute it and add a carrier.

Pepper spray can be dangerous. It can harm eyes even causing permanent damage to the cornea through inflammation and irritation in some cases if not promptly treated. If any sizable quantity gets into the lungs it can also inflame the lungs, preventing breathing. These are just risks for someone sprayed, never mind if you add choke holds or other restraint techniques in combination.

However such sprays are widely used in prisons, and inmates continue to fight and stab each other even drenched in amounts and concentrations far greater than anything typically carried on a keychain or in a pocket. The only thing it can be reliably expected to do is blind and allow for escape.

 

[TexasRifleman]

Well let's just say that if I'm on the jury, and the device is "man portable", it will be a walk assuming it wasn't used in a crime.

 

[Zoogster]

Half of a container is also gas propellant, not actual spray. So what actually comes out of a given size container is much less than you would expect based on the size.

Those 1-2oz size containers in mild concentrations are nearly worthless in my opinion. That is as much as your typical shot glass.
The only person those are going to deter was someone who was all talk and not going to cause problems anyways. Its like splashing a shot glass of tabasco sauce on them. Sure 1 minute later they might be in pain, but deterrent or immediate stop?

The laws have limited most civilians to pepper spray concentrations and sizes that are not really suitable for self defense. To punish some bum or drunk irritating someone? (illegal if not in compliance with the law) Sure. But that is not stopping an attack. That is inflicting pain on someone bothering the individual.
Not much different than slugging (actually more like slapping, a punch might actually do some damage) them over the same thing, just with the appearance of being cleaner and more civilized.

 

[Howaido]

I for one think it is irresponsible to carry a deadly weapon like a handgun without the training in, and availability of, less than deadly options to handle situations that require less than deadly force. Why do police officers carry it? So they can better handle situations that require less than deadly force.

Pepper spray IMO is nearly a must if you are going to carry.

If you are in fear for your safety from some homeless nut who is blocking your way, shoving you, etc. you would be far better off spraying than shooting him under most conditions.

A crazy law, all in all.

 

[Deanimator]

Why do police officers carry it?

So that they can subdue and arrest people with less lethal force.

I don't want to subdue anyone and have no powers of arrest.

 

[Howaido]

As a former peace officer and use of force trainer, it is my opinion that it is a wise choice to have a less than lethal option available.

There are many, many situations where lethal force is not justified when one is faced with a threat. If you would rather handle such situations with empty hands, feel free.

I am just saying that a law that curtails this option is a bad one.