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View Full Version : using bear spray on a person in san mateo county


marker
07-22-2011, 2:26 AM
I thought this was illegal statewide (and if it wasn't, I'm sure san mateo county would take care of that). What are the chances the homeowner gets burned by this?

http://www.mercurynews.com/ci_18527803

edwardm
07-22-2011, 3:46 AM
State law would apply here. I don't find anything in the SMC Ordinances about self-defense sprays, and the resident apparently lives in an unincorporated chunk of the county.

Assuming the facts are straight, I don't see her encountering any problems. There may be an issue with the size of the canister conflicting with the law, but (g) only punishes certain uses, not possession above the 2.5 oz limit. A gung-ho ADA might try to find some creative way to charge around the size issue, but I don't think it would happen.

12401. "Tear gas" as used in this chapter shall apply to and
include all liquid, gaseous or solid substances intended to produce
temporary physical discomfort or permanent injury through being
vaporized or otherwise dispersed in the air, but does not apply to,
and shall not include, any substance registered as an economic poison
as provided in Chapter 2 (commencing with Section 12751) of Division
7 of the Agricultural Code provided that such substance is not
intended to be used to produce discomfort or injury to human beings.


12403.7. Notwithstanding any other law, any person may purchase,
possess, or use tear gas and tear gas weapons for the projection or
release of tear gas if the tear gas and tear gas weapons are used
solely for self-defense purposes, subject to the following
requirements:
(a) No person convicted of a felony or any crime involving an
assault under the laws of the United States, the State of California,
or any other state, government, or country or convicted of misuse of
tear gas under subdivision (g) shall purchase, possess, or use tear
gas or tear gas weapons.
(b) No person who is addicted to any narcotic drug shall purchase,
possess, or use tear gas or tear gas weapons.
(c) No person shall sell or furnish any tear gas or tear gas
weapon to a minor.
(d) No person who is a minor shall purchase, possess, or use tear
gas or tear gas weapons.
(e) (1) No person shall purchase, possess, or use any tear gas
weapon that expels a projectile, or that expels the tear gas by any
method other than an aerosol spray, or that contains more than 2.5
ounces net weight of aerosol spray.
(2) Every tear gas container and tear gas weapon that may be
lawfully purchased, possessed, and used pursuant to this section
shall have a label that states: "WARNING: The use of this substance
or device for any purpose other than self-defense is a crime under
the law. The contents are dangerous--use with care."
(3) After January 1, 1984, every tear gas container and tear gas
weapon that may be lawfully purchased, possessed, and used pursuant
to this section shall have a label that discloses the date on which
the useful life of the tear gas weapon expires.
(4) Every tear gas container and tear gas weapon that may be
lawfully purchased pursuant to this section shall be accompanied at
the time of purchase by printed instructions for use.
(f) Effective March 1, 1994, every tear gas container and tear gas
weapon that may be lawfully purchased, possessed, and used pursuant
to this section shall be accompanied by an insert including
directions for use, first aid information, safety and storage
information, and explanation of the legal ramifications of improper
use of the tear gas container or tear gas product.
(g) Any person who uses tear gas or tear gas weapons except in
self-defense is guilty of a public offense and is punishable by
imprisonment in a state prison for 16 months, or two or three years
or in a county jail not to exceed one year or by a fine not to exceed
one thousand dollars ($1,000), or by both the fine and imprisonment,
except that, if the use is against a peace officer, as defined in
Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2,
engaged in the performance of his or her official duties and the
person committing the offense knows or reasonably should know that
the victim is a peace officer, the offense is punishable by
imprisonment in a state prison for 16 months or two or three years or
by a fine of one thousand dollars ($1,000), or by both the fine and
imprisonment.

mag360
07-22-2011, 4:12 AM
why the heck would bear spray be illegal? you can get it at Big 5 for petes sake. it is just pepper spray that shoots farther in bigger cans.

Kid Stanislaus
07-22-2011, 6:22 AM
By law there's a 2.5 oz. limiton the can size, HOWEVER she was in her domicile where lethal force would've been justified. The use of less lethal force show's prudence on the part of the homeowner. The DA would play hell ever getting a jury to convict.

yellowfin
07-22-2011, 6:30 AM
What are the chances the homeowner gets burned by this?The burglar already did.

Maestro Pistolero
07-22-2011, 7:53 AM
I think she will be fine. No DA is going to want to touch that.

The Shadow
07-22-2011, 9:11 AM
There's a few things to consider here.

1. The bear spray is not INTENDED for use against humans, so the size of the can is irrelevant.

2. It was in her home, and she was defending herself against an attacker.

3. She wasn't carrying bear spray in a place where it's unlikely she would encounter a bear, so no harm there.

One thing to note here, if a situation occurred in the parking lot of a sporting goods store, and the intended victim used their newly purchased canister of bear spray to fend off the attacker, I don't think anyone would make a big deal out of that either, or at least I would hope they'd have the common sense not to.

In a situation like this, I think the decision to prosecute or not prosecute goes to circumstantial evidence, and the mind set of the person who employed the bear spray. In other words, if it's obvious that the person carried it in a place where there are no bears, and the person didn't just purchase it from a store in the immediate vicinity of where they are, and if a person employed the bear spray at another person, even if they are an attacker, there is intent there to show that the individual wasn't carrying the bear spray for the sole purpose of defending themselves against bears. So maybe there is an argument there in favor of charging the person who used the bear spray, with the appropriate offense.

As for the little people not being allowed to carry pepper spray in an amount greater than 2.5 ounces, I would imagine that was one of those compromises that someone went with to get the regulation passed. I think it's stupid and should probably be removed from the law. It's kind of liker Taser's self imposed limit on taser cartriges for private persons, and those used by police and military. It doesn't make sense, but it did make someone feel better.

movie zombie
07-22-2011, 9:25 AM
he was hiding in a master bedroom closet: who's to say his intent was merely burglary?! DA would play shell getting any jury with women on it to convict.

Anti-Hero
07-22-2011, 9:50 AM
Mr. Aguiniga should be grateful all he got was a face full of pepper spray, rather than a face full of lead.

tyrist
07-22-2011, 9:56 AM
he was hiding in a master bedroom closet: who's to say his intent was merely burglary?! DA would play shell getting any jury with women on it to convict.

The charge of burglary covers the intent to commit any felony and theft prior to entering a structure. So murder, rape, mayhem, etc are all covered.

jdberger
07-22-2011, 10:11 AM
Necessity defense.

I also agree with the above discussion about the politics of prosecuting someone defending their home from within a closet.

movie zombie
07-22-2011, 10:18 AM
The charge of burglary covers the intent to commit any felony and theft prior to entering a structure. So murder, rape, mayhem, etc are all covered.

thanks!

the woman had great presence of mind to use the spray.

Decoligny
07-22-2011, 10:26 AM
Anybody actually have this written on their pepper spray as required by law?

"WARNING: The use of this substance or device for any purpose other than self-defense is a crime under the law. The contents are dangerous--use with care."

I looked at every single brand of pepper spray available at my local gun shop, and not one of them had the warning.

I printed out a sticky label and attached it to mine.

Big Ben
07-22-2011, 10:28 AM
The burglar already did.

Beat me to it.

Coded-Dude
07-22-2011, 10:31 AM
Mr. Aguiniga should be grateful all he got was a face full of pepper spray, rather than a face full of lead.

this.

Quser.619
07-22-2011, 10:46 AM
The sad thing is that the anti-2A mentality has reduced us to automatically worrying whether a woman who defended herself could be liable. If this doesn't illustrate the need we have as CA citizens for legitimate, clearly written laws, nothing else does. I could only wish that someone close to this brave lady tells her to file for a CCW & then pursue why she'd be denied.

nicki
07-22-2011, 1:36 PM
Lets find this woman has the mindset to "FIGHT", maybe we could find her and get her a "GUN".

Then if in the future someone breaks into her home, she won't have to worry about having "tear gas" that is too big.:eek:

Of course there is the possibility that she was "anti gun", but perhaps she may have had a change of mind after this close call.:rolleyes:

I am curious to how long it took the police to arrive, even if it was minutes, those minutes probably seemed like an eternity to her:43:

Nicki

dantodd
07-22-2011, 1:57 PM
There is a world of difference between carrying a can of bear spray in San Mateo county and using it in your home for self-defense.

Curley Red
07-22-2011, 2:01 PM
Anybody actually have this written on their pepper spray as required by law?

"WARNING: The use of this substance or device for any purpose other than self-defense is a crime under the law. The contents are dangerous--use with care."

I looked at every single brand of pepper spray available at my local gun shop, and not one of them had the warning.

I printed out a sticky label and attached it to mine.

I'll check my bear spray when I get home tonight and post a pic of what it says.

Wherryj
07-22-2011, 2:22 PM
he was hiding in a master bedroom closet: who's to say his intent was merely burglary?! DA would play shell getting any jury with women on it to convict.

I think that same DA might have a hard sell to many of the men as well.

Wherryj
07-22-2011, 2:25 PM
thanks!

the woman had great presence of mind to use the spray.

Yes, it is a shame that she didn't have a 16 ton weight handy for dispatching the fiend.

http://www.youtube.com/watch?v=piWCBOsJr-w

Glock22Fan
07-22-2011, 2:28 PM
I think that same DA might have a hard sell to many of the men as well.

Me included!

And the same if it was a male householder spraying a male intruder.

There must be a pun here somewhere about our right to keep and bear sprays, (or spray bears).

golfrj
07-22-2011, 3:44 PM
Hell, all she has to say is " He was Bare"....

Paul S
07-22-2011, 4:41 PM
The sad thing is that the anti-2A mentality has reduced us to automatically worrying whether a woman who defended herself could be liable. If this doesn't illustrate the need we have as CA citizens for legitimate, clearly written laws, nothing else does. I could only wish that someone close to this brave lady tells her to file for a CCW & then pursue why she'd be denied.

+1 on this ^...and good on the lady for taking care of business.

movie zombie
07-22-2011, 6:42 PM
oh, geez, that monty python was funny!

gunsmith
07-22-2011, 7:08 PM
I used to carry bear spray all the time in SF, once a fed LE at the fed building told me "you cant use this on people" my reply? "it seems to work fine!"

1911_sfca
07-22-2011, 7:21 PM
Someone needs a home defense shotty and some firearms training.

yellowfin
07-22-2011, 8:22 PM
I wonder if anyone has ever used a chainsaw for self defense @ home if it was the first available thing nearby (e.g. they were in or near the garage).

Curley Red
07-22-2011, 8:39 PM
Ok here is what my "Counter Assult" bear spray says:

"It is a violation of Fedral law to use this product in a manner incosistent with its labeling"

And on the front it says:

"NOT FOR USE ON HUMANS"

Paul S
07-22-2011, 9:46 PM
I wonder if anyone has ever used a chainsaw for self defense @ home if it was the first available thing nearby (e.g. they were in or near the garage).


Not likely..I don't think there's a chainsaw in the world that'll fire first lick when it is cold. :D I know mine sure as heck won't.

TKM
07-22-2011, 10:43 PM
Chainsaw makes a fine impact weapon, running or not.

I've been a fan of gel type attitude adjustment mousse for a while now. No more macing the entire damn bar while wrestling with Drinky McDrinksalot.

In a home situation the bad guy gets what is handy. Fire extinguisher all the way up to flame thrower.

Easy-Off if something comes through the kitchen window.

The shiny pink facial area makes picking them out of the six pack a lot easier.

vantec08
07-23-2011, 3:55 AM
I STILL dont get what makes more than 2.5 oz. inherently wicked, bad, evil, caca.

johnny_22
07-23-2011, 4:12 AM
Anybody actually have this written on their pepper spray as required by law?

"WARNING: The use of this substance or device for any purpose other than self-defense is a crime under the law. The contents are dangerous--use with care."

I looked at every single brand of pepper spray available at my local gun shop, and not one of them had the warning.

I printed out a sticky label and attached it to mine.

None of the pepper spray containers had that wording or even close. So, now, they have a label attached with that wording.

dbldblu
07-23-2011, 3:43 PM
I keep a can of wasp and hornet spray handy (for wasps and hornets).

gunsmith
07-23-2011, 3:51 PM
I keep a can of wasp and hornet spray handy (for wasps and hornets).

LOL! well, hopefully you do not have to use it on anyone bugging you.

Jack Straw from Wichita
07-23-2011, 6:54 PM
I STILL dont get what makes more than 2.5 oz. inherently wicked, bad, evil, caca.

Same thing that makes 11 or more rounds in a magazine inherently wicked: an arbitrary limit that makes the blissninnies feel better.

Mesa Tactical
07-23-2011, 7:04 PM
Mr. Aguiniga should be grateful all he got was a face full of pepper spray, rather than a face full of lead.

From what I have heard about the effects of pepper spray, maybe not so much.

yellowfin
07-23-2011, 9:44 PM
Originally Posted by vantec08

I STILL dont get what makes more than 2.5 oz. inherently wicked, bad, evil, caca.

Same thing that makes 11 or more rounds in a magazine inherently wicked: an arbitrary limit that makes the blissninnies feel better.It's about time we stopped catering to their feelings. They've had their time, now play time with them should be over, back to real people who live in reality running things.

Quake0
07-23-2011, 9:46 PM
Mr. Aguiniga should be grateful all he got was a face full of pepper spray, rather than a face full of lead.

Well that may be true, but it looks really painful.

http://www.youtube.com/watch?v=uAzMHydNxaU&feature=related

mag360
07-23-2011, 9:53 PM
hmmm how to bolt a chainsaw to a trenchgun w/bayonet lol

ojisan
07-23-2011, 9:56 PM
LOL! well, hopefully you do not have to use it on anyone bugging you.

http://www.youtube.com/watch?v=E0PIdWdw15U

Peter.Steele
07-24-2011, 10:05 AM
I wonder if anyone has ever used a chainsaw for self defense @ home if it was the first available thing nearby (e.g. they were in or near the garage).

Not likely..I don't think there's a chainsaw in the world that'll fire first lick when it is cold. :D I know mine sure as heck won't.

I've got a key-start setup on my lawn mower, and I've been looking at how they did it. Doesn't look like it'd be that complicated to set up my chainsaw the same way ... Hold down the trigger, push the button, and VROOM!


I keep a can of wasp and hornet spray handy (for wasps and hornets).


Most insect spray is simply a low-concentration nerve agent. Not reqlly pleasant to get shot in the face with it, I suspect ...

vincewarde
07-24-2011, 11:33 PM
As others have pointed out, when you are in your home and must defend your self, you may have to resort to using whatever is at hand: Baseball Bat, Tire Iron, Hammer or in this case Bear Spray. As long as the force is appropriate there should not be any problem.

The guy is lucky he was not shot!

Hunt
07-25-2011, 10:46 PM
Anybody actually have this written on their pepper spray as required by law?

"WARNING: The use of this substance or device for any purpose other than self-defense is a crime under the law. The contents are dangerous--use with care."

I looked at every single brand of pepper spray available at my local gun shop, and not one of them had the warning.

I printed out a sticky label and attached it to mine.

good point I will make a sticky back for ours as well

Patrick Aherne
07-25-2011, 10:56 PM
It is illegal to use bear spray on a human being in California. However, she has a great necessity defense. She could have stabbed, stomped, beat with a rock, etc mr. Burglar. I don't see her being charged.

advocatusdiaboli
07-26-2011, 6:24 PM
The sad thing is that the anti-2A mentality has reduced us to automatically worrying whether a woman who defended herself could be liable. If this doesn't illustrate the need we have as CA citizens for legitimate, clearly written laws, nothing else does. I could only wish that someone close to this brave lady tells her to file for a CCW & then pursue why she'd be denied.

+1 A sad state of affairs for certain in this formally great, rapidly declining state.