Legalities of the Byrna
by Marty Hayes, J.D.
This is a message I have been wanting to do for some time, ever since the Byrna pepper gun came on the market. In fact, you cannot listen to conservative radio without hearing advertising for the Byrna. Those ads are well done, but in my opinion, somewhat misleading. Why?
First, the Byrna is not all that effective. It is only as effective as pepper spray, and the delivery systems of a good can of pepper spray is much better than the Byrna. I went on YouTube and looked at a few Byrna videos, and do not see the disabling effects of Byrna, as I see after a good shot of OC-10.
Second, while it may be LEGAL to own and carry the Byrna in all 50 states because it does not meet the legal definition of a firearm, when you pull it out of the holster and threaten someone with it, you have committed the crime of assault. Assault – the threat of physical force – depends on the mindset of the person assaulted. If they reasonably believe you are threatening them with physical force, then the elements of the crime have been fulfilled. It is only your claim of self defense which, if deemed reasonable to the trier of fact, would make your threatening to use the Byrna legal.
What about mistaken identity? If you decide someone is a threat and pull your Byrna and tell them to back off, the person who was just harassing you may believe you just pulled a gun on them. If they then decide to pull their own stolen 9mm and shoot, it is going to be a bad day for you. How about that orange color? That helps with the mistaken identity issue, but your posture, a classic shooting stance, will be more convincing than the color of the gun you are holding.
Another issue not discussed in the promotional material is the effectiveness of the projectile, which is more or less a modified paint ball projectile. If the person is wearing soft, bulky clothing the pepper balls will likely not burst. That relegates it to the use during warm weather, when no bulky coats are worn.
For the reasons above, for me personally, I will be staying away from it. Still, it is not all bad.
For the person who lives in a state where concealed carry is not an option, then it probably has a lot of merit. It still is not a fight stopper, although it perhaps is a reasonable deterrent to a non-lethal attack. For women who also face the threat of kidnapping and rape, it would make a pretty good deterrent, especially when the attacker(s) are not deploying deadly weapons, but instead relying upon size and strength. A Byrna in a “gun purse” with your hand on the Byrna while walking to your car in the dark parking lot makes a lot of sense.
Lastly, while it is advertised as non-lethal, you better be prepared to justify the person dying or suffering debilitating injury. A Byrna projectile in the eye socket will likely permanently blind the subject in that eye. If the person you shot stumbles out into traffic and gets run over by a truck, can you justify your use of force? It had better have been a serious attack against you, where use of a real firearm would have also been legal.
If you have first-hand experiences with the Byrna, I would love to hear about them. Contact me at