The Law on Pepper Spray in New York
To the best of our knowledge, it is currently legal to purchase, sell and possess pepper spray as well as to carry it for personal use (subject to the laws explained in this post). That, however, has not always been the case. In 1986, a number of people who were convicted of the crime of carrying pepper spray for personal defense appealed their convictions to the New York State Court of Appeals (the highest court in New York State). They argued that the law banning the sale, possession and use of pepper spray for self-defense purposes was unconstitutional. Eventually, the Court of Appeals agreed and ruled in People v. Klen ([1986] 61NY2d 566) that S 265.01 (4) of the Penal Law, which prohibited the sale, possession, and use of "pepper spray," as well as S 265.10 (1) of the Penal Law , which prohibited possession of a "deceptively shaped dangerous instrument," and S 1212(5) of the Public Health Law, which prohibited possession of an "unregistered canister of mace or other gas, liquid or other material for offensive or defensive purposes was unconstitutional. To the Court, prohibiting the use of pepper spray for personal defense was the same as prohibiting a person from using a gun in self-defense. The Court further acknowledged that requiring the owners of the pepper spray to come forward and register these items (similar to the gun registration law which was passed after the decision was made to reinstate the ban on pepper spray) was vague, unreasonable and violated the due process and equal protection provisions of the State and U.S. constitutions.
Purchasing Pepper Spray Legally
In New York State, residents are permitted to purchase pepper spray without a permit, but there are some restrictions on where the spray can be acquired and how many can be purchased at one time. The law also calls for the purchaser to provide proper identification and, in some cases, undergo a background check. In 1998, the New York Department of State Division of Licensing Services began licensing establishments selling personal alarms and pepper sprays.
Licensed sellers have certain restrictions, and they must be able to sell only two units of pepper spray or personal alarm to an individual at one time. Additionally, they may only sell the units if certain criteria are met. First, the establishment must keep a written or electronic log containing the date of purchase, name and address of the purchaser, the amount paid, description of items, and the driver’s license number of the buyer or other means of personal identification. The regulations require that the seller maintain the log for five years.
The only individuals who may be eligible to purchase pepper spray are residents of New York State. The Regulations of the State of New York call for customers to provide their proof of residency before they can complete the sale.
Generally, sellers may require a valid state-issued form of identification like a driver’s license or New York-issued ID. They may also require a passport. When identifying a customer, sellers should ensure that the ID presented is a current or valid form of proper identification to avoid the sale of pepper spray to children.
According to Section 15-306 of the General Business Law, individuals under the age of 16 are prohibited from buying or selling pepper spray. However, this is not always enforced. Sometimes, underage persons may be able to access the product being sold by the seller if the seller does not enforce this requirement. Generally, sellers using proper diligence do not sell to any person that appears to be under the age of 21 because the law specifies that authorized purchasers must be at least 18 years of age.
Even if the seller declines to sell the spray to minors, there is no guarantee the potential buyer will be honest about their age. Some establishments use electronic scanners to reduce the risk of allowing underage buyers to obtain the spray. The durable records of the transactions can assist sellers in documenting their ability to verify the age of the customer and can show they were able to perform their due diligence by refusing the sale to the child.
When it is Legal to Carry Pepper Spray
Be it a neighbor dispute, a work conflict, an online altercation, or some other type of contact, many people have found that some form of human interaction, facilitated by some sort of communication, has resulted in enough of a threat or attempt to harass such that an act of physical self-defense is necessary. It is lawfully permissible in New York State for a person to carry pepper spray if that person has suffered a clear and credible physical threat against himself or herself, unless the alleged attacker has been convicted of a violent felony, in which case the pepper spray is not permitted until the victim is safely out of harm’s way.
Examples of situations where carrying and using pepper spray would be permitted by New York State laws include: If you have been threatened by someone who has made it clear that there will be physical harm done to you, your family/loved ones, or your property, it is in your best interest to keep a canister of pepper spray on your person at all times. And because this simple tool is non-lethal and non-chemical, no real lasting damage will be done to the assailant if you should happen to need to use it.
Penalties for Illegal Use of Pepper Spray
As with most issues of weapons control, the severity of the penalties corresponds to the type of charge and its classification. In New York State, the unlawful use of pepper spray is not something to be taken lightly, as both civil and criminal penalties may apply. The legal ramifications of using pepper spray in a violent or aggressive manner can lead to severe consequences, including lifelong criminal records and permanent termination of employment in some cases. In fact, one of the most common outcomes for this type of violation is loss of a firearm license, which can be nearly impossible to gain back. When pepper spray is used for purposes outside its intended purpose, such as self-defense, instead of technical assault, the defendant may be charged with the Class B misdemeanor of Reckless Endangerment under § 120.20 of the New York Penal Code. With a conviction of this level of misdemeanor, the defendants may face at least 90 days in jail. Of course, it also depends on other circumstances. For instance , in the case that the person assaulted utilizing the pepper spray suffers injuries requiring hospitalization, then the criminal charge will elevate to a Class A misdemeanor. Alternatively, if the defendant used the pepper spray to cause injury, the person will likely be charged with the Class A misdemeanor of Second Degree Assault under § 120.03 of the New York Penal Code. If the attack endangered the life of the victim, then the defendant necessarily will confront charges of the Class D felony of Attempted Aggravated Assault Upon a Police Officer or Peace Officer under § 120.11 of the Penal Law. The possible punishments become even more severe when the weapons in possession also included a firearm, as the defendants will be charged to carry a firearm on school grounds under § 265.01-a of the New York Penal Law. Based on my experiences, these cases are very serious, and one must exercise proper and sensible precaution when involved in a situation where pepper spray or any type of mace spray may become necessary.
Pepper Spray Alternatives
Pepper spray is arguably the most common and widely used self-defense tool in New York today. But it’s far from the only legal self-defense tool. Here’s an overview of some alternatives for New York residents.
Stun guns only emit a shock of electricity on contact. There is no chemical agent. But these devices are equally effective on an aggressor, issuing an electric shock that can cause serious adverse effects.
The pros – Stun guns come in a variety of sizes. Some are built to store in your pocket or purse, while others can even attach to your phone to keep it concealed. Even those that are visible throughout your day-to-day routine can act as a deterrent.
The cons – The vast majority of stun guns require a visible trigger to deploy an electric shock. When confronted, an aggressor may try to disarm you. Furthermore, the shock of an electric stun gun does not last very long. When the charge wears off, you’re still left with an aggressor.
Another popular alternative to mace and pepper spray. Available in-person or online, New York residents have no problem obtaining this defense tool. But does it work?
The pros – Like sting gel, these compounds will produce a burning sensation on contact. However, the gel-like consistency allows for controlled application. You can easily direct the gel toward an aggressor’s eyes or mouth, and use as much or as little as required.
The cons – What’s great about sting gel provides its greatest disadvantage. When sprayed from the nozzle, this gel reaches slow. Although most sting gels can reach several feet away, they don’t move to the speed you’ll find with other forms of mace or pepper spray. Furthermore, the gel may actually stick to the target longer. An aggressor may rub his eyes for some time, prolonging the spontaneous irritation. As stated by Cans of Defense – "It’s easier to re-apply pepper spray than it is to scrape sting gel off."
A close-combat method for repelling an aggressor, the Kubotan is a cylindrical rod made from hard plastic. It bears some resemblance to a wooden pencil – except it’s much denser. Used effectively, the Kubotan can be armed and poised to strike with the force required to push back an aggressor.
The pros – Kubotan rods are extremely small, and easy to carry. They can be clipped to a key ring, or simply placed in your pocket or purse. The portability of this self-defense tool helps deter unwanted attacks.
The cons – Perhaps what makes the Kubotan so convenient also allows for poor technique. New York City Police department recommends that officers possess "at least some moderate proficiency" before carrying the Kubotan. This tool can only be effective when applied with appropriate force, directed at vital pressure points. Improper application leads to failure of this tool.
One of the simplest self-defense tools around, keys are often viewed simply as a means for getting into one’s home. But they can also serve a practical purpose.
The pros – If you’re willing to get creative, your keys can be used as a teargas mace alternative. Simply grasp them between your fingers, with the sharpest end facing outward. After swinging with a punching motion, the sharp edge of your key should make contact with your assailant. While slight, this jabbing motion used to puncture the skin.
The cons – If your aggressor is wearing a jacket, your key may not penetrate through the material. Moreover, if your attacker uses the element of surprise you may not have time to think critically. You are much better off carrying an alternative that you can easily access.
Recent Amendments to the New York Pepper Spray Laws
In the past several years, New York State has made some significant changes to the laws and regulations regarding chemical sprays. The most important of which were enacted on August 5, 2019 with the signing of two separate bills into law by Governor Andrew M. Cuomo.
The first bill (S6472) made amendments to New York Public Health Law § 1399-ii, and requires sellers of pepper spray to provide warning and training to purchasers.
The second bill (S2276A) amended Penal Law § 265.20(1)(b) to make it illegal for anyone who is convicted of a drug offense in New York involving a narcotic drug, to own or possess pepper spray.
The Governor also signed into law a third bill (S2275) which was a necessary "clean-up" legislation designed to clarify that when an arrest or conviction occurs on or after the effective date of S2276A, the prohibition on ownership and possession of pepper spray will be in effect.
The enactment of S2275 leaves a very narrow window of time for any individual who has a prior misdemeanor conviction for any of NYS’s drug sale offenses under Amendment B of Penal Law §220.03, and Amendment A of Penal Law §220.39, to purchase or acquire pepper spray before being subject to a felony charge for ownership or possession of the spray.
Because of the time-sensitive nature of the bill, it does not become effective until January 1, 2020, and will remain in effect until December 31, 2020.
After December 31, 2020, anyone who has a prior drug sale misdemeanor conviction under Penal Law §220.03 or Penal Law §220.39 will no longer be subject to a felony charge for the ownership or possession of pepper spray.
S2277 contains certain amendments to §265.20(1)(b) that address the sale , transfer, and acquisition of chemical sprays that have recently become legal under the law. These amendments went into effect on October 7, 2019.
Interestingly, while chemical sprays are now legal to sell, transfer, and acquire, the only people who will be able to indulge will be those who are currently prohibited from any ownership or possession of pepper spray. This strange turn of events was the result of the Governor also signing a clean-up legislation (S2277) to address the ambiguity that arose in S2276A as to whether someone who had a prior misdemeanor drug sale and possession offense conviction in NYS would be permitted, or prohibited, from owning, possessing, or purchasing pepper spray, because on its face, S2276A did not address the issue of whether a person who had a prior conviction could purchase different kinds of chemical spray (e.g., mace) under the new law and transfer it from a non-prohibited party to a prohibited person.
While pepper spray is not considered a weapon, it is still classified as a firearm under current NYS laws.
As a result, the sale, transfer, and acquisition of chemical sprays could lead to a conviction of a firearm or weapon possession charge in NYS if the chemical spray product is transferred from someone who does not have a prohibited or restricted status, to someone who does have a prohibited or restricted status.
This is one of the drawbacks of the recent changes in NYS pepper spray laws, because the penalties for weapon and firearm possession in NYS are substantially more severe than those for mere criminal possession of pepper spray.