Using pepper spray on another person in California is a crime whenever it happens outside genuine self-defense, and it is prosecuted under Penal Code 22810 as either a misdemeanor carrying up to a year in county jail or a felony carrying 16 months, two years, or three years. If prosecutors treat the canister as a deadly weapon and file under Penal Code 245 instead, the exposure climbs to as much as four years in state prison. An assault with pepper spray in California is one of those charges where the statute you are booked under matters as much as what you actually did.
The Two Statutes Prosecutors Use
California wrote a statute specifically for tear gas and pepper spray misuse, and it also has a broader assault statute that can apply to the same conduct. Which one you face changes the sentencing range significantly.
Penal Code 22810: Misuse of Tear Gas
Penal Code 22810 governs the purchase, possession, and use of tear gas and pepper spray. It confirms that any qualifying adult may carry and use these products for self-defense, then sets out penalties for using them any other way.1California Legislative Information. California Code PEN 22810 – Tear Gas Weapons Under subdivision (g)(1), using tear gas or a tear gas weapon for any purpose other than self-defense is a wobbler, meaning prosecutors can file it as either a misdemeanor or a felony. Most pepper spray assault cases start here because the statute was written for exactly this situation.
Penal Code 245: Assault With a Deadly Weapon
Penal Code 245(a)(1) covers assault with a deadly weapon, and 245(a)(4) covers assault by means of force likely to produce great bodily injury.2California Legislative Information. California Code PEN 245 – Assault With Deadly Weapon Pepper spray is not inherently a deadly weapon, but prosecutors sometimes argue that the way it was used made it one: spraying directly into the eyes at close range, targeting someone known to have asthma, or using an oversized or modified canister. If a court accepts that framing, the sentencing range jumps well past what PC 22810 provides. Pepper spray does not qualify as a caustic chemical under Penal Code 244, since it doesn’t disfigure flesh, so that separate charge is off the table.
Where Self-Defense Ends and Assault Begins
The line is whether you reasonably believed you faced an immediate physical threat at the moment you sprayed. A past grievance doesn’t count. A vague sense of unease doesn’t count. A verbal argument that might escalate later doesn’t count. The danger has to be happening, and the force you use has to be proportional to it. Spraying someone who shoved you during a parking dispute reads very differently from spraying someone charging at you with a raised fist.
Situations that consistently land on the wrong side of the line:
- Retaliation after a confrontation has ended. Once the threat is over, force becomes offensive rather than defensive.
- Arguments where nobody has made a physical threat. Words alone, however aggressive, don’t justify chemical spray.
- Pranks, intimidation, or provocation.
- Using bear spray on a person. Bear-deterrent formulations are regulated differently, and using one on a human is illegal regardless of the circumstances.
Prosecutors evaluate these cases by asking what a reasonable person in the same situation would have done. If the answer is that a reasonable person would not have reached for the canister, charges are likely.
Penalties
What you face depends on which statute is filed, whether the wobbler goes misdemeanor or felony, and whether the person you sprayed was a peace officer.
Misdemeanor Under PC 22810
A misdemeanor conviction for misuse of tear gas carries up to one year in county jail, a fine of up to $1,000, or both.1California Legislative Information. California Code PEN 22810 – Tear Gas Weapons Courts often impose probation in place of or alongside jail, with conditions like anger management classes or community service. This is the more common outcome when the spray caused no lasting injury and the defendant has no criminal history.
Felony Under PC 22810
Charged as a felony, PC 22810(g)(1) carries a sentence of 16 months, two years, or three years, plus a possible fine of up to $1,000.1California Legislative Information. California Code PEN 22810 – Tear Gas Weapons Because the statute references Penal Code 1170(h), the time is typically served in county jail rather than state prison, unless the defendant has prior convictions for serious or violent felonies.3California Legislative Information. California Code PEN 1170 – Determinate Sentencing Prosecutors push for felony filing when the victim suffered significant injury, when the defendant targeted someone vulnerable, or when the act appears premeditated.
Enhanced Penalty for Spraying a Peace Officer
Using pepper spray against a peace officer performing official duties, when the defendant knew or should have known the person was an officer, eliminates the misdemeanor option. Under PC 22810(g)(2), it is a straight felony punishable by 16 months, two years, or three years, plus a fine of up to $1,000.1California Legislative Information. California Code PEN 22810 – Tear Gas Weapons There is no path back to a misdemeanor here.
Assault With a Deadly Weapon Under PC 245
When prosecutors file PC 245(a)(1) instead of or alongside the tear gas statute, the stakes climb. The sentence is two, three, or four years in state prison, or up to one year in county jail, or a fine of up to $10,000, or both the fine and imprisonment.2California Legislative Information. California Code PEN 245 – Assault With Deadly Weapon This route is reserved for the most serious cases, typically ones where the spray caused severe injury or was used alongside other violent conduct.
Consequences Beyond the Sentence
Jail time and fines are only part of what a conviction brings.
Firearms Prohibition
Any felony conviction bars you from owning or possessing firearms in California. Even a misdemeanor conviction for assault (PC 240), battery (PC 242 or 243), or assault with a deadly weapon (PC 245) triggers a 10-year prohibition on owning, purchasing, receiving, or possessing any firearm under Penal Code 29805.4California Legislative Information. California Code PEN 29805 – Persons Prohibited From Owning Firearms Violating that prohibition is itself a criminal offense.
Loss of Pepper Spray Rights
A conviction under PC 22810(g) for misusing tear gas permanently bars you from purchasing, possessing, or using pepper spray in the future. The same lifetime ban applies to any conviction for a crime involving assault.1California Legislative Information. California Code PEN 22810 – Tear Gas Weapons One incident of misuse eliminates the self-defense tool you may want later.
Employment and Record
Both misdemeanor and felony assault convictions appear on background checks. Employers in healthcare, education, law enforcement, and security are particularly likely to screen for assault-related offenses. A felony conviction carries additional weight that can affect housing options and professional licensing.
Defenses That Come Up
Self-defense is the most common and the most effective. If you reasonably believed you faced imminent harm and the force you used was proportional, the deployment was lawful under PC 22810. The question is not whether you were scared, but whether a reasonable person in your position would have been scared enough to spray. California imposes no duty to retreat before using force in self-defense, but the threat still has to be real and immediate.
Defense of others is treated identically. Spraying someone to protect a third person from imminent physical harm, with proportional force, is lawful on the same terms.
Accidental discharge can defeat the intent element. The prosecution must prove the use was willful. A canister that went off because it was jostled in a bag, or that was grabbed by mistake, does not involve an intentional act. This defense weakens quickly if there is any evidence the canister was aimed.
False accusation or mistaken identity comes up in chaotic scenes involving crowds or poor lighting, where witnesses may identify the wrong person. Alibi evidence, surveillance footage, and independent witnesses support this defense.
Lack of knowledge that the victim was a peace officer applies specifically to the PC 22810(g)(2) enhancement. If you genuinely did not know and had no reason to know the person was an officer performing official duties, the straight-felony enhancement should not apply. The underlying misuse charge still stands.
Civil Liability Runs on a Separate Track
Criminal charges aren’t the only exposure. The person you sprayed can sue in civil court for assault and battery, seeking compensation for medical bills, lost wages, pain and suffering, and potentially punitive damages if the conduct was especially egregious. Civil cases run on a lower burden of proof (more likely than not, rather than beyond a reasonable doubt), so an acquittal in criminal court does not prevent a loss in civil court.
Bystanders who get hit when spray drifts may have their own civil claims. In cases involving security personnel or law enforcement, claims under federal civil rights law (42 U.S.C. ยง 1983) can arise when the use of spray amounts to excessive force, particularly when authorities fail to provide medical treatment afterward. Private citizens won’t face Section 1983 claims themselves, but they are not insulated from state-law liability for injuries to unintended victims.