Wednesday, January 11, 2012

Carrying a Self Defense Chemical Spray on School Property

Question:   Can a person carry a self defense chemical spray on school grounds:

Answer:    Such is not unlawful under Florida law.

In a recent email,  I was asked whether a 17 year old female could lawfully carry a self defense chemical spray on her college campus for defense.  My opinion on this issue,  as the law stands today – is a most definite “yes”.  My reasoning is as follows:

F.S.  790.01   allows carrying a “self defense chemical spray”  concealed without a CWP

F.S.  790.053  allows open carry of a “self defense chemical spray” .

F.S.  790.001(3)(b) – excludes a “self defense chemical spray” from inclusion in the definition of either a “tear gas gun” or a “chemical weapon or device”.

F.S.  790.001(13)  – does not mention a “self defense chemical spray” by itself, or within the definition of a “weapon”,  and therefore excludes it.

F.S.  790.115 – forbids the exhibition of any “weapon” and certain other specifically named devices at schools, and further forbids possession of such on school property.  The section does not mention or include “self defense chemical sprays”, and thus –  much like “common pocket knives” – it is not unlawful to be in possession of such on school property – including colleges.

Thus,  it is my opinion that carrying a “self defense chemical spray” on campus is not unlawful.  This is corroborated by the cases on “common pocket knives”  which treat the exact question in the same statute.   D.J. v. State,  36 Fla.  L.  Weekly D2781  (Fla.  4DCA 2011):  C.R. v.  State,  73 So.3d 825  (Fla.  4DCA 2011):  R.H. v. State, 56 So.3d 156 (Fla.  4DCA 2011).  Likewise,  the statutes make no limitation on age for carrying such a spray.  Only its intended use, and conformity to the size and content requirements.

Of course,  a “self defense chemical spray” is defined as a “device carried solely for purposes of lawful self defense that is compact in size, designed to be carried on or about the person, and contains not more than two ounces of chemical”.  F.S. 790.001(3)(b).   The consensus of opinion – although not in any case law –  is that the “two ounce” amount refers to the repellant spray – and not the propellant charge.

However,  let me urge caution on at least one aspect of this.   I strongly advise against open carry of a self defense chemical spray unless fully concealed within the hand – purely as a practical matter.  My opinion on this issue has not been addressed by the courts directly  (although the “common pocket knife” analogy would be next to impossible to get around) – and I seriously doubt that more than a handful of  school administrators and law enforcement have ever looked closely at the issue, or even thought about it -- thus, there is a large margin for them making a serious mistake thinking it's against the law -- when clearly -- it isn't.  Likewise,  I would urge students not to tell their friends they are carrying a self defense chemical spray for the same reason – and  also -- because it would be more to their advantage to have the element of “surprise” available if  the spray is needed in any self defense situation.  

Hope that helps.

copyright 2012 by jon gutmacher