Mace/Pepper Spary - Texas Law

[srothstein]

By the way, MACE is not legal to carry. Pepper spray IS.

Mace is an entirely different chemical. Do not ever say that you are carrying mace. You carry pepper spray.

I beg to differ. The law does not differentiate between brands. Penal Code section 46.01(14) defines it as:

"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.

You can carry mace, pepper spray, CS, CN, tear gas, blister agent, etc. if it is a small can. Mustard gas and nerve agents might be going a little too far because of their lethality, but that is questionable.


Where the law refers to mace is in 46.01(1) where it defines clubs. This is the old knight's type of mace as seen here: http://en.wikipedia.org/wiki/Mace_%28club%29" onclick="window.open(this.href);return false;.

[srothstein]

In my opinion, in the above scenario, if the cops showed up, they'd potentially understand the potential fear of the woman, and since mace doesn't generally do any permanent damage, they'd probably let her go, unless the other guy was insistant about pressing charges. Even if he was, and the scenario was just as described, I doubt the police would charge her.

They'd probably tell the guy 'hey buddy, next time you approach a woman, alone, in the parking lot, how about you talk to her.. don't surprise her like that'

Just my personal opinion.

I'm not sure I agree with this part. If I was the guy and I was insistent upon pressing charges, how could the police NOT arrest her? My eyes are swollen and have been spewing water, she has a empty/semi-empty can of mace, and told the police that she used the mace because she (at the time) felt threatened. From the above hypothetical, I have not violated any law.

I am NOT a lawyer, but wouldn't this typically be much greater than reasonable suspicion and still likely far beyond probable cause that criminal activity has occurred? I understand that ultimately this use of force would/should be distinguished from a violent intentional assault, but that should be up to the DA and/or court system to decide. The whole premise behind calling the police (at least in this situation) is to make sure no further 'issue' arises, and they are also there to detect/determine if criminal activity has occurred.

She should not be arrested as she committed no crime. In this case, she has a defense that is based on two prongs. The first is the use of force under chapter 9 of the Penal Code that we are all familiar with. Clearly she thought she was defending herself from a possible attack. This chapter says not that it must be an attack, but that she must reasonably believe it to be. This defense, when combined with the defense in section 8.02, would let her walk on a case as described above. Section 8.02 says that it is a defense if the person makes a mistake on a fact involved in the case and the facts as she believed them to be would justify the actions.

I know chapter 9 is gone over around here and in CHL classes, but there are a lot of other defenses hidden in the Penal Code. Sometimes, we need to sit and read the whole book and try to fit it together as a coherent whole. Many sections interact with each other.

As to how the officers could not arrest, her guilt really means nothing to this. The only time officers are required to make an arrest is for violation of a protective order in their presence or view. Any other time, the law gives the officer discretion to arrest or not by saying they MAY arrest. You can commit a cold blooded murder right in front of a cop and he is not obligated to arrest you for it. He probably would then, but the law does not require it.

[Keith]

http://www.planodwilawyer.com/2009/11/c ... d-and.html" onclick="window.open(this.href);return false;

Watch this kinda scarry. There is no such thing as law enforcement grade its a sales tactic that alot of companys use to make there product seem stronger

[Dave2]

http://www.planodwilawyer.com/2009/11/c ... d-and.html

Watch this kinda scarry. There is no such thing as law enforcement grade its a sales tactic that alot of companys use to make there product seem stronger

I find two things about this worrying. First, that the officer thought it was illegal. Secondly, that there's no standard for what "small" means. I'd really prefer to not go to jail because one county's cops went to a different training facility than the neighboring county's cops.