What Are Pepper Balls?
Pepper balls are devices used primarily by law enforcement for controlling crowds or as a less-lethal alternative to more traditional means, such as tasers or pepper spray. Essentially, pepper balls function much like paintballs. The device is a plastic container with an inner ball of pepper powder, which, when fired, bursts upon impact with a hard surface, releasing the powder into the air and on/in the target’s body. Pepper balls can be loaded to fit in various weapons, including .68-caliber paintball guns.
Pepper balls are designed for a number of uses. Percussive pepper balls are intended for dispersing unwanted crowds through "carpet bombing" areas with pepper powder. They consist of a fragile shell and an inner packet of powder. When a pepper ball collides with a hard surface, the inner packet explodes and the powder migrates across a broad area. Percussive pepper balls are easy to use and only require one shooter for a single shot, or two shooters, if an incendiary propellant is too ((note to self: is the term "propellant" appropriate when it comes to incendiary devices? Check on that. 2/20/16)) .
Also intended primarily for crowd control are incendiary pepper balls. These pepper balls are filled with chemical additives, rather than powder, which will ignite upon collision, creating a flame. Incendiary pepper balls create a ball of fire to distract and disperse crowds, but can also be used to start fires in a controlled environment, such as in burning brush or demolishing dangerous buildings. These pepper balls are harder to use than standard pepper balls, as they have a limited range, they require two people to load, and the fire hazards may pose a risk for fire-hazardous materials in the vicinity. Like standard pepper balls, incendiary pepper balls are also intended for short-range use.
Pepper balls can also be used in self-defense situations. The same general principle applies as with self-defense spray—when the chemical in the spray contacts the target’s eyes, throat, nose, or other exposed skin, it irritates the affected areas, causing the target to lose his/her focus and temporarily impair his/her vision. At the same time, the chemical in the spray can be easily washed away with a small amount of water.
CA Laws About Pepper Balls
In California, pepper spray and other "chemical irritants" are legal for individuals to possess and use in self-defense as long as the product meets certain requirements. However, the legality of pepper balls has remained somewhat unclear, with many manufacturers still unsure whether they fall under the general category of approved chemical irritants.
Section 12403.7 of the California Penal Code includes key provisions for the legality of non-lethal self-defense sprays within the state:
Penal Code § 12403.7. Exemptions and regulations for use and purchase of tear gas or tear gas weapons
(a) The provisions of Section 12403.5 shall not apply to any of the following:
(1) Any purchase of a self-defense spray…
(2) Any person authorized by a local, state, or federal agency to possess tear gas for legitimate purposes. However, such spray or device shall not be used for other than legitimate purposes.
(b) (1) No person shall purchase or acquire any tear gas canister…unless it is in a container specific to that product and designed to be used as, and which is identified on the label as, a self-defense spray…
(2) A person who violates this section is guilty of a misdemeanor.
(c) The Legislature finds and declares that all self-defense sprays for use by the general public that are legal as of January 1, 1999, are exempt from authorization under subdivision (a).
(d) The Department of Justice shall adopt regulations specifying standards for each permitted self-defense spray that shall include the following:
- (1) Each spray shall contain an identification dye.
- (2) Each spray shall contain a disabling substance that is not an inhalation agent.
- (3) Each spray shall contain an inert practice version that is the same size and shape as the lawful form of the tear gas.
- (4) Each spray shall contain a safety mechanism that shall prevent accidental discharge.
- (5) Each spray shall be issued with a warning that states that the product, if used for any purpose other than self defense, may cause harm.
- (6) Each spray shall meet the following labeling requirements:
(A) The label shall state, in 12 point uppercase type, "SHALL ONLY BE USED FOR LEGAL SELF DEFENSE."
(B) The label shall state, in 12 point type, "SHALL NOT CAUSE GREAT BODILY INJURY OR DEATH."
(C) The label shall state, in 12 point type, "WILL NOT BE SHIPPED TO CALIFORNIA."
(D) The label shall state, in 12 point type, "UNLAWFUL TO USE IN CRIME."
(E) The label shall state, in 12 point type, "PENALTY -6 MONTHS/ $1,000 FINE."
(F) The label shall state, in 12 point type, "PUNISHMENT FOR USE IN A CRIME, INCLUDING BUT NOT LIMITED TO PETTY THEFT, SHOPLIFTING, THEFT, ASSAULT, etc., WILL BE PROSECUTED UNDER SECTIONS 1203.05 TWO TO FOUR YEARS IN PRISON AND A $10,000 FINE."
(G) The label shall state, in 12 point type, "IMPORTANT: IF YOU INTEND TO USE THIS PRODUCT FOR SELF DEFENSE, YOU MUST BE TRAINED IN ITS USE."
(H) The label shall state, in 12 point type, "Effective APRIL 1, 1999, this product is illegal in California to anyone who is prohibited to possess any of the following: a. Shotgun, rifle or pistol with less than a six-inch barrel, b. Any knife over five inches, c. Any blackjack, d. Any billy club, e. Any knife belt buckle, f. Any blow-gun or blow-darts, g. Any belt buckle firearm, h. Any "non-stun gun," i. Any Nerve Discharge Weapon." Otherwise, the self-defense spray may be purchased and used for self-defense purposes only."
(G) The label shall state, in 12 point type, "IMPORTANT: DO NOT ACCEPT THIS PACKAGE IF IT IS OPEN OR TORN."
Having examined the relevant provision of the Penal Code, we can conclude that pepper balls do not appear to be restricted under California law. If you are still in doubt, have an attorney or a licensed firearms dealer look into the matter for you, but there are no indications from either the Penal Code or the State Department of Justice that there is any limitation on the sale, possession, or use of pepper balls for self-defense purposes.
Differences in State and Federal Laws About Pepper Balls
The legality of pepper balls varies significantly at the state level. For example, in Texas and Virginia it’s completely legal to own a pepper ball canister. While the state surrounding California has a more patchwork approach. In Nevada, you can possess pepper spray but can’t carry it concealed. Arizona is even more permissive, with regulations on sub-lethal weapons that resemble tasers more than weapons. Moving northward, Oregon law dictates that you need a permit to possess certain types or concentrations of OC spray. Washington permits possession of pepper spray, but not for use in self-defense. In Utah, possession is legal but sales are prohibited. And the list goes on, with significant differences from state to state on this matter.
While all of this may seem confusing, your best strategy is to check in with the local authorities in your jurisdiction to confirm what’s necessary. If you want to travel around with your pepper ball canister, you probably need to consult the laws of those states as well. However, if you live in California, it’s safe to assume that there are a number of requirements or restrictions on your canister of pepper spray.
Using Pepper Balls in the State of California
Under California law, it is illegal to use a pepper ball on another person or to use one in self-defense. If a person uses pepper balls against someone else, they could be facing assault charges, battery charges, or even attempted murder charges. Even if the accused didn’t intend for the victim to be harmed or barely even touched by the pepper balls, the prosecutor could still pursue criminal charges against them. This is what you need to know about criminal charges and penalties associated with criminal use of pepper balls in California: If the accused used pepper balls to try to kill someone, they would likely be charged with attempted murder – a felony that can be punished by 5, 7, or 9 years in jail, as well as hefty fines. If the accused used pepper balls to injure someone – which was not their intention – they could be charged with assault with a deadly weapon or assault with force likely to produce great bodily injury – both misdemeanors punishable by one year in county jail. If the accused threw a pepper ball in the vicinity of a person and accidentally harmed them, they could be charged with battery – a misdemeanor, punishable by up to 6 months in county jail. In addition to these penalties, the accused will likely have to pay fines for their conduct. Depending on the crime they’re charged with, the accused may have to pay anywhere from several thousand to several hundred thousand dollars in fines. Finally, all of these criminal charges would be reported to the accused’s employers in law enforcement, whether they worked in one of California’s many local police departments, the California Highway Patrol, or the Federal Bureau of Investigation (FBI). As a result, their reputation as a law enforcement officer and the trust that the public has in them would be inevitably damaged.
Other Options for Self-Defense
Just as there are legal options for self-defense shotguns or stun guns, there are many other legal, non-lethal or traditional tools Californians can possess to protect themselves, and the state generally allows all of them as long as they are not brandished or used in a reckless or unlawful manner.
Stun guns
These are legal in California, but only when used for self-defense. While carrying one openly or as a concealed weapon is permissible—but only with a license — it’s likely that a stun gun would cause a great deal of alarm if seen in public, increasing the risk of prosecution for brandishing a weapon.
Mace and tear gas
Similar to a stun gun , these devices are legal in California for self-defense use only, and they’re kept in a self-defense bag. They have a significant advantage over stun guns: Incapacitation achieved by stun guns is temporary, while the incapacitation provided by mace or tear gas can last for hours.
Taser
The difference between a stun gun and Taser is that, in addition to delivering a jolt, a Taser is also designed to incapacitate by disrupting the process of communication from the brain to the muscles. Tasers are legal for self-defense and, like stun guns and mace, can only be carried openly or concealed with a permit. Tasers carry the same social implications of a stun gun or mace to many people.
Recent Case Law and Enforcement Trends
In 2017, Citizens Against Lawsuit Abuse filed a lawsuit against the City and County of San Francisco, the San Francisco Police Department, and the San Francisco Recreation and Parks Department for violating Article 1, Section 26 of the California Constitution, which allows law-abiding citizens to acquire, own, possess, and utilize firearms for various lawful purposes. In this case, San Francisco prohibited all individuals from carrying pepper balls on the grounds of any San Francisco park or portion thereof, as ground for arrest. Article 1, Section 26 does not specify a lawful purpose for pepper balls, and San Francisco maintained this equitable SAKI system for discharging pepper balls.
San Francisco declared that anyone carrying pepper balls on City property, including City owned state parks, would be cited and/or arrested for carrying a concealed weapon. City Code, Section 7.13.2(j) provides an exception for an otherwise prohibited carry for a person who "(1) has a concealed weapons (CW) license issued by one of the following: (A) a local police chief; (B) the county sheriff; or (C) a state agency authorized to issue a CW license." However, issuance of a license was contingent upon San Francisco’s approval of the firearm. Because persons possessing pepper balls were not eligible for a permit, they were subject to unlawful arrest and incarceration as discussed above.
This policy unfairly prevented law-abiding citizens from exercising their state constitutional right to possess a firearm, including pepper balls. The Citizens sued San Francisco in the Northern District Court of California, alleging the City violated the right to bear arms, including pepper balls. The case settled in favor of the plaintiff, with San Francisco paying a total of $172,500 to the plaintiff’s attorneys in fees and costs. San Francisco also agreed that in order to carry pepper balls, an individual need not first demonstrate need, nor shall San Francisco question individual need to carry pepper balls.
Outside of administrative decisions and lawsuits like these, pepper ball use and regulation may be inconsistent. As mentioned in the case of Johnson v. Project 1999, Regardless of rules and regulations for acquiring a concealed carry permit for a pepper ball guns, such as carrying a concealed firearm under Penal Code Section 25400(a), officers tend to exercise discretion in regulating individuals using pepper balls for self-defense equipment and utilize other means of enforcing laws depending on the circumstances. For example, we found that although the Pomona Police Department refused to quote a report on the use of pepper ball guns as they were not considered firearms, whereas Simi Valley Police Department was more than happy to provide their record on pepper balls guns.
Safety Issues and Public Perception
Public debate surrounding the use of pepper balls in law enforcement has been prevalent in recent years. Based on these discussions, concerns have arisen about their safety and whether they are being used ethically and responsibly. Leaders, advocacy groups, and legal experts have weighed in on the matter, which has had a significant impact on both public perception and policy.
Across California, some community leaders and watchdog organizations have voiced their concerns about how harmful pepper balls can be when they explode. They have raised flags about their potential to inflict severe eye damage, skin irritation, and other injuries. The use of pepper balls against children and non-violent offenders have also been met with apprehension, leading many to call for stricter regulations in their usage by police departments .
In light of such controversies, the American Civil Liberties Union (ACLU) California chapter issued a statement condemning the use of pepper balls as harmful and potentially deadly. According to the Los Angeles chapter, "the use of force is the problem, not the tool." Other civil rights and community groups have endorsed similar statements against police departments’ use of pepper balls.
In California, the legality of using pepper balls is upheld through Assembly Bill 2977, which recognizes pepper balls as "expanding plastic projectile ammunition" for law enforcement. With this designation, the practice is legal and assumed to be responsible. However, many groups argue that pepper balls risk aggravating the very problems they are meant to address, specifically those related to police misconduct and abuse.