The September edition of our online journal featured an article discussing intermediate self defense options carried in addition to a gun or when not carrying a gun. State laws can impose restrictions on possession or use of pepper spray, TASER®s, force multipliers like Kubotans and even hand-to-hand defensive tactics, but those laws vary from state to state.
With many Network members already carrying pepper spray and other non-gun defense options, we started discussion of the below questions with our Affiliated Attorneys in last month’s edition of this online journal. This month we wrap up this discussion of laws affecting private citizens in various locales who employ alternative defense options.
We asked our Affiliated Attorneys these questions–
Do the laws in your state restrict carrying non-gun self-defense devices like pepper spray, TASER®s or Kubotans?
What laws affect the private citizen who stops an attacker by using a TASER®, pepper spray or Kubotan?
What violations might a member be charged with if authorities don’t believe the intermediate weapon was used lawfully?
Michael Whisonant, Jr.
Jaffe Hanle Whisonant & Knight PC
2320 Arlington Ave S., Birmingham, AL 35205
There are very few published criminal cases with non-lethal or intermediate defense weapons from which to give a concrete answer. However, in Alabama we also have one of the most expansive self-defense statutes in the country. In Alabama, the self-defense statute reads in part:
“(a) A person is justified in using physical force upon another person in order to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he or she may use a degree of force which he or she reasonably believes to be necessary for the purpose.”
So, each situation is an analysis of the facts on a case by case basis. I would say that a Kubotan and perhaps a TASER® would be considered a dangerous instrument in Alabama. This means that if the force is not deemed justified by law enforcement, an individual who uses one of these weapons would be subject to a felony charge of at least assault in the second degree, which is a class C felony.
Terry A. Nelson
Nelson & Lawless Law Offices
43537 Ridge Park Dr, Temecula, CA 92590
California does not consider pepper spray to be a “dangerous weapon,” but an effective self-defense tool, and therefore allows private citizens to legally purchase, carry, and use pepper spray for personal protection and self defense, without any state or federal permit.
However, to be legal for private citizens, the device cannot contain more than 2.5 ounces of pepper spray, and discharge [“shoot”] in aerosol form only, and the container must include a disclosure label with shelf-life date [they do age and deteriorate], usage instructions and first-aid instructions.
Several major reputable brands make palm-size containers around or under $10, some with marking dye included. Check your normal shopping websites.
Despite much “common wisdom” and misinformation to the contrary, California allows private citizens to legally purchase, carry and use TASER®s which “shoot” electrode wires 3-5 yards or more, and stun guns that are contact discharge devices [not my first choice for defense against someone attacking with a knife or gun]. Minors under the age of 16 must have parents’ consent.
However there are important restrictions to know. Purchase, use and possession are prohibited to essentially the same categories of people who are prohibited from possession of firearms, such as felony convictions, psychiatric commitment, adjudicated “incompetents,” have a Domestic Violence Restraining Order, habitual drug user, etc.
In addition, there are locations where possessing a TASER® or stun gun is prohibited, similar to firearms, such as secured airport areas, harbor passenger terminals, or port facilities, schools, local and state government buildings, courts, and jails, among others. Check your local laws before making any assumptions.
Unfortunately, CA makes it illegal for citizens other than police to possess any of a variety of devices in the category of a “baton,” which can be described as a “striking weapon,” such as a billyclub, blackjack, sandbag, sand club, sap, or slungshot. The consensus of opinion is that a normal-sized Kubotan falls into that category, but so does a baseball bat behind the driver’s seat unless on the way to or from a game with other gear demonstrating non-criminal intent.
The answer to a previous question explained that both pepper spray and TASER®s/stun guns, but not Kubotans, were legal to buy, carry and use in California as self-defense tools, subject to “justifiable use of force in self defense or defense of others” rules, the same as with firearms.
Interesting side note available as a legal defense in court, when used in justifiable self defense, any weapon available and appropriate can be used, from sticks and stones to even “illegal” weapons, such a Kubotans, or firearms “illegally” carried concealed by a “‘prohibited” person. The need for self defense to save lives overrides the “prohibition,” otherwise the law would leave such people “defenseless.” Just don’t count on easily winning that argument in court, it will be a challenge. The user would have to defend charges related to the “carrying” illegally, but not the justifiable use once established.
If not legally justified in the eyes of police, DA and court, then the use of the weapon could be considered and charged as “assault with a dangerous weapon” or whatever injuries the “now victim” suffers.
As always, know the rules and follow them to avoid legal problems, and avoid such confrontations if at all possible.
Thank you, affiliated attorneys, for sharing your experience and knowledge. Members, please return next month when we have a new question for our affiliated attorneys.
To read more of this month's journal, please click here.