Small Chemical Dispenser? Thoughts

[jframe.38]

I think that the Texas laws on pepper spray are terribly defined. I like the asp key defender but would like to have something with a little more range than 5 feet for my jogs to defend myself from dogs. I want to make sure I don't run a foul of

Sec. 46.05. PROHIBITED WEAPONS. (a) A person commits an offense if the person intentionally or knowingly possesses, manufactures, transports, repairs, or sells:
(7) a chemical dispensing device;

Sec. 46.01. DEFINITIONS. In this chapter:
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.

I think that the 1.8 oz sabre cans (stream and gel) for joggers should be fine as they are sold on amazon and academy (commercial) for personal protection. I certainly think they are small as they fit in a pocket or in the palm of my hand. The marketing materials certainly look like they are for personal protection.

I'd sure hate to end up like this guy from Wylie who was eventually no billed at considerable personal legal expense. http://www.wfaa.com/story/local/2014/08/30/13457508/" onclick="window.open(this.href);return false;

The case law doesn't specifically address size either http://law.justia.com/cases/texas/fourt ... 78353.html" onclick="window.open(this.href);return false;

What do those of you on this board think is kosher using the key words of "small", "sold commercially" and "for personal protection" means? Do you think a 1.8 oz can is okay? Do you think a 3/4 oz can is okay? Do you think a 1/2 oz key chain is okay? Do you think an asp key defender with 4 grams of spray is okay? Who is to say which of these are "small", "sold commercially" and for "personal protection"

Is anyone trying to get this changed in the next legislative session? What can be done to try to get this vague portion of 46.05 off the books so no one else ends up like the guy from Wylie?

[Keith B]

There is no definition on what is 'small', but there was a case where someone was arrested for a 'large' canister. The Grand Jury agreed to prosecute, but didn't indict, so charges were dropped. As such, no case law really exists, but the guy was out $6200 in legal fees

http://www.wfaa.com/story/local/2014/08/30/13457508/" onclick="window.open(this.href);return false;

As for what the Wylie police were trying to say, the 'key chain' sizes are what they called 'small' and not a stand-alone canister. However, it is still all discretionary from one officer to another. I really don't think the little small pepper spray cans you get on a key chain would be an issue, but if you got an overzealous officer, they might try to make it one.

[ripnbst]

Buy Bear Spray. It will typically go 20' or more. Cans tend to be about the size of a Nalgene waterbottle.

Chest Rig to hold the can, which could also be used as a belt or sling. I realize this may be the equivalent of tactical vest carry of a handgun but it will definitely keep you safe.

http://www.cabelas.com/product/Counter- ... 462&rid=40" onclick="window.open(this.href);return false;

This is the spray itself

https://www.google.com/shopping/product ... PwBEKYrMAg" onclick="window.open(this.href);return false;

Then of course there is this spray about the size of a pen

https://www.google.com/shopping/product ... MsBEPMCMAU" onclick="window.open(this.href);return false;

I doubt very highly that the pen has the capacity or range you are seeking but it undoubtedly fits the definition of small.

[TexasVet]

Does that mean that the mail carriers who carry the large cans of chemical sprays are carriying prohibited weapons ?

[jframe.38]

I think cases like this are exactly why we need legislation so that all pepper spray is legal for carry. There is no reason for legitimate honest people to get ensnared in legal system for merely trying to a) have a less lethal form of self-defense and b) have protection from aggressive animals while enjoying the outdoors.

Does anyone no of any attempts to legislatively correct this injustice in the next legislative session. I don't even know what lobbying group to go through. I am an endowment lifetime member of the NRA but I don't even know if they would do anything about a poorly worded state pepper spray statute.

Is TSRA looking at this or is there an equivalent organization for less lethal rights that is effective?

[jframe.38]

Texas Vet:

Looks like overzealous law enforcement and prosecuters in Wylie certainly thought that personal sized canisters not on key rings are a quote unquote "No-no" and as such they'd think that every mail carrier is a felon breaking the prohibited weapon statuse. See link in posts above.

Which leads me to think that we need legislation to make it abundantly clear what is and is not a chemical dispenser. We simply can not have everyday people being accused of felonies for trying to protect themselves from aggressive dogs or having a less lethal form of defense.

A few legislative solutions could include

- Ideally I'd like that section of prohibited weapons removed that references chemical dispenser
- exclude all pepper sprays from the definition of chemical dispenser
- or I'd like the definition to specify that any EPA registered spray is okay (dog repellent and bear repellent pepper sprays that the EPA has approved) and also specify that any personal defense spray under say 4 oz is okay (this is the FAAs rule for what you can put in checked baggage.

[mikeloc]

I think cases like this are exactly why we need legislation so that all pepper spray is legal for carry. There is no reason for legitimate honest people to get ensnared in legal system for merely trying to a) have a less lethal form of self-defense and b) have protection from aggressive animals while enjoying the outdoors.

Does anyone no of any attempts to legislatively correct this injustice in the next legislative session. I don't even know what lobbying group to go through. I am an endowment lifetime member of the NRA but I don't even know if they would do anything about a poorly worded state pepper spray statute.

Is TSRA looking at this or is there an equivalent organization for less lethal rights that is effective?

In 1996 when I took the DPS CHL instructor class in Austin the Officer said, "If you have to strap it to you back like the flame throwers in WWII; it's probably too big." I only know of one case, and that was in Wylie where someone was arrested. It was thrown out and I don't think anyone has ever been convicted. What was intended when the law was passed is for us not to carry large cans like the police use for tear gas etc.

Mike

[WildBill]

When I took my first CHL course the instructor brought in a little keychain size of pepper spray.

It was still in its cardboard bubble packaging.

He told of his story of when he bought it from the gun store.

When he took it to the counter, the clerk told him that he didn't want to buy that.

The instructor, said "Yes I do. I want to show it to my students, what NOT to buy."

[ScottDLS]

What about the backpack my termite guy wears when he sprays around the house? Is there a defense to prosecution if you have a Texas Pest control license?

The mailman can get the Feds to force the DA to back off since delivery of the mail (and presumably the equipping of personnel doing so) is clearly a constitutional power of the Federal Government, unlike the other 90% of what they do. In some areas, they ought to give the letter carriers MRAPS to drive . Well, I guess that's what the armed Postal Inspectors are for. Now the USDA's tactical unit....mmmm....can't find that one in the Constitution.

[WildBill]

What about the backpack my termite guy wears when he sprays around the house? Is there a defense to prosecution if you have a Texas Pest control license?

The mailman can get the Feds to force the DA to back off since delivery of the mail (and presumably the equipping of personnel doing so) is clearly a constitutional power of the Federal Government, unlike the other 90% of what they do. In some areas, they ought to give the letter carriers MRAPS to drive . Well, I guess that's what the armed Postal Inspectors are for. Now the USDA's tactical unit....mmmm....can't find that one in the Constitution.

Almost any law can be misused by an unscrupulous prosecutor.

[tyree]

Knife law preemption is a higher priority for me, but I'd really like to see the small container restriction removed in the next session.

[ScottDLS]

What about the backpack my termite guy wears when he sprays around the house? Is there a defense to prosecution if you have a Texas Pest control license?

The mailman can get the Feds to force the DA to back off since delivery of the mail (and presumably the equipping of personnel doing so) is clearly a constitutional power of the Federal Government, unlike the other 90% of what they do. In some areas, they ought to give the letter carriers MRAPS to drive . Well, I guess that's what the armed Postal Inspectors are for. Now the USDA's tactical unit....mmmm....can't find that one in the Constitution.

Almost any law can be misused by an unscrupulous prosecutor.

Sure. You can indict a sitting governor (or a ham sandwich) for performing a constitutionally authorized veto. Maybe they could even indict the entire Legislature for NOT passing an appropriation, based on whatever they publicly stated their reason was.

Oh and Travis County voters, you'd better not publicly state that you'll vote out the DA, she might get a Special Prosecutor to indict you. Intimidation of a Public Official.... 99 years Republicans...SO THERE! Then again there is always that cliche "concealed means concealed"...better apply it to your votes and official actions Repubs

[Seburiel]

Maybe they could even indict the entire Legislature for NOT passing an appropriation, based on whatever they publicly stated their reason was.

Come on, now, let's not give them any ideas...

[EEllis]

Knife law preemption is a higher priority for me, but I'd really like to see the small container restriction removed in the next session.

There is no small container restriction. The only issue is that small can mean different things to different people. In reality sprays in sizes up to about 3 oz are for sale everywhere and are easily obtainable for self defense. A prosecutor would have an almost impossible time convicting someone for carrying something of that size. Realize that carrying something not meant for human deference, chatting about it online, then being arrested and prosecuted may be much easier than getting a conviction for a normal pepper spray. Some other sprays that are advocated as self defense tools may not be as effective in initially stopping someone but have a greater chance of longer term health risks, or not IDK which is the point. The biggest issue with someone looking to charge you for spray would have to be if and how you use it. If you use it and the authorities don't think it was appropriate then a illegal device charge might be added on to an assault charge. Can someone be charged with crime for having a 1 oz container on them? Sure but you could also be charged with an illegal knife for having a 3 inch folder. There just has to be a limit on what is reasonable to worry about.

[tyree]

There is no small container restriction.

I was just referring to 46.05.7 & 46.01.14, which together prevent us from carrying anything other than a "small chemical dispenser". You could also refer to it as a "small container".

Sec. 46.01. DEFINITIONS. In this chapter:
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.

The only issue is that small can mean different things to different people.

Yep, that's the problem we are already in agreement about.

A prosecutor would have an almost impossible time convicting someone for carrying something of that size.

Maybe so, but no one should have to be worried about forking over hundreds or thousands of dollars in legal fees when they are carefully following the law just because they drive through Wylie, TX. The law should be written in such a way that it is difficult for an LEO to misinterpret, much less for such a situation like this to ever make it to a prosecutor.

... you could also be charged with an illegal knife for having a 3 inch folder. There just has to be a limit on what is reasonable to worry about.

Yes, clarifying the existing limitation is one way to handle it. But there are two ways to address these types of grey areas in the law:
1) clarify the restriction
2) remove the restriction

In the spirit of adjusting our laws to be more in line with Constitutional principles:
More clearly defining the size of a "small chemical dispenser" is fine, but removing the size adjective is better. And removing any inclusion of legitimate self defense tools (arms) in that restriction is best. The same goes for knives. And municipalities should be explicitly forbidden from attempting to override constitutionally protected rights as well (San Antonio, I'm looking at you...)

In short:
Since the 2nd amendment protects our God given individual right to bear arms, specifically mentions that lawmakers are not permitted to restrict that right, and by using the word "Arms" points out that this right is not restricted to revolvers, semi-auto handguns & rifles (i.e. Knives and pepper spray are included in that right) i favor trending our laws toward removing restrictions on firearms, knives, and pepper spray. Clarifying the law is fine, but i favor attempting removing restrictions whenever/wherever possible.