Navigating the Legal Use of Pepper Spray in Virginia

Virginia’s Laws on Pepper Spray

As with any chemical agent used for self defense purposes, possession and use of pepper spray is legal in Virginia. Code of Virginia §18.2-312 specifically states that no person shall possess or transport mace or other noxious substance for unlawful purpose. Because self-defense applications are not unlawful, the language of the statute is somewhat persuasive in determining whether or not pepper spray is considered a noxious substance. Further, the Virginia General Assembly has made a specific exception for pens that emit noxious substances by amending Code of Virginia § 18.2-312.01 to allow possession of pens that emit noxious substances, with restrictions. This falls into line with other laws that permit the carrying of guns for self-protection, but prohibits the carrying of pen guns with active projectiles, otherwise known as "zip guns . " Code of Virginia § 18.2-308.3 is a non-technical explanation of the exceptions granted to felons with respect to use of force, defensive products, deadly weapons and/or firearms. With a handful of exceptions, a person who has ever been convicted of a felony in Virginia cannot even possess a firearm or knife with a blade exceeding three inches on it. However, with regard to pepper spray, a felon may possess oleoresin capsicum in a container that contains less than 2 oz. of the product by weight, if there are no aggravating circumstances in using said product, such as committing crimes of violence. The Certificate of Restoration of Rights a convicted felon obtains in order to restore his/her civil right to bear arms after they have served their time excludes pepper spray containers with capacity in excess of 1.5 oz. by weight.

Who is Allowed to Carry Pepper Spray?

Virginia has overall taken a liberal approach towards self-defense tools such as pepper spray. However, there are some restrictions that are placed on who is able to legally carry pepper spray. Any citizen of Virginia is able to carry pepper spray except for those individuals who have been convicted of a violent felony. These individuals are essentially prohibited from carrying any kind of self-defense spray while in the Commonwealth of Virginia. The only additional restrictions that are placed on individuals are on those who are under 18. In addition to not being able to purchase there is also a legal restriction on those individuals not being able to carry pepper spray. Essentially the Virginia code prohibits minors from using and carrying pepper spray. While there are some exceptions listed in the code, minors who wish to use pepper spray for self-defense purposes must be accompanied by their parent or guardian. Unlike stun guns and tasers, which can only be used on specific individuals, the permitted users of pepper spray is much wider. The only exception is that individuals who are unable to prove that they have a good and just reason are prohibited from carrying pepper spray. Pepper spray may be carried by almost anyone in Virginia as long as a person can show that it is needed for their protection.

Permits and Limitations

Generally, those armed with a valid Virginia handgun permit may carry pepper spray in public without a need for a permit. Additionally, certain persons are exempt from the general prohibition of carrying a firearm at schools, parks, etc.; exemptions for personal protection devices like pepper spray are less common. The law on exempt persons must be reviewed on a person-by-person basis to determine if an exemption exists.
Unlike firearms, Virginia does not require a permit to sell or possess pepper spray. However, it does regulate sales and possession in certain contexts. For example, while no license is needed to sell pepper spray, vendors must maintain an inventory list showing the names and addresses of all purchasers. The purchaser must sign and date the list attesting that they are over 18 years old and the pepper spray is intended for self-defense purposes only. This inventory list may be inspected by law enforcement officers during normal business hours.

Penalties for Improper Use

As with any self-defense tool, when misused, legitimate self-defense rights can result in severe legal consequences. In Virginia, if a person uses their pepper spray while committing a crime, his or her claim for justifiable self-defense will be lost. As a general rule, Virginia law recognizes that the use of deadly force or physical violence to protect oneself or another is justified only when a person reasonably believes that he or she or another is about to be (1) killed, (2) seriously injured, or (3) wrongfully deprived of a thing of value, and the use of force is necessary to avert that danger. In addition, an accused person will be denied a claim of self-defense if he started or provoked the incident. Therefore, it is very important for anyone carrying a pepper spray canister to be careful about where, when and how they use the spray. For example, a person who engages in a verbal argument at a bar or grocery story and uses a strong asphyxiating product such as FS (which is pepper spray used by police and military forces) and completely incapacitates his assailant, not being able to breathe for several minutes, may possibly be guilty of a crime if the incident is serious enough for a grand jury to decide that there was no justifiable self-defense . Even if the alleged assailant is the aggressor and the pepper spray was deployed to repel him, the aforementioned theory of provocation may apply because the action of provoking the assailant by yelling, pushing, shoving or cursing could easily be considered "commencement of an altercation." Nevertheless, a citizen who believes that he is genuinely in danger of (1) being killed, (2) suffering serious bodily injury, or (3 being wrongfully deprived of property may rely on section 18.2-280 of the Virginia Code which says: If a person is attacked … with intent to kill, to inflict bodily injury or to commit robbery, rape or other crime, and the attacker has no right, under the laws of the Commonwealth, to the privilege of self-defense, the attacked person may stand his ground and defend himself … by the use of such force as shall appear necessary to his personal safety. Of course, if a jury finds that the alleged assailant drove the other party to error by threatening violence, then the theory of provocation does not apply. Furthermore, a violent act by the alleged assailant needs to be observed in order for the attacked party to have the right to defend himself. If the alleged victim acts without provocation, the defense of self-defense will most likely be argued successfully in court. With that being said, the use of pepper spray is certainly justifiable in self-defense.

How to Legally Obtain Pepper Spray

Under Virginia law, sellers must be licensed by the Department of Agriculture and Consumer Services to sell pepper spray. Once licensed, they may sell pepper spray to people 18 years of age and older without requiring identification, verifying whether the person has committed crimes involving assault or non-consensual sex, or recording the person’s name or any other information.
Cumulative annual sales of pepper spray exceeding $5,000 require a license from the Department of Agriculture and Consumer Services.
Pepper spray can be purchased from many merchant retailers in Virginia (including gun shops, sporting goods stores, convenience stores, etc.), by mail order, or via the internet. The seller must be able to legally sell pepper spray in Virginia (that is, they should have proper permits, any licenses, etc.).

Using Pepper Spray for Self-Defense

This all begs the question – even if you have permission to possess pepper spray in Virginia, can you use it for self-defense? In short, yes. Most Virginia self-defense law applies equally to self-defense by pepper spray as it would with a handgun or other weapon. When can I use pepper spray to defend myself? As a general rule, you can only legally use force against another person if you have a reasonable and good-faith belief that doing so is necessary to avoid death or serious injury to yourself or another person. You also cannot use more force than you reasonably believe is necessary to avoid the threat. In some states, this rule is called the rule of "equal force." For example, if you think someone is going to slap you, you cannot stab them in the neck to defend yourself because your response is disproportionate. In Virginia, self-defense law does not differentiate from the manner in which the force is used (handgun, knife, hot sauce, etc.). that is , the law says that you can use reasonable force to defend yourself; it does not say that you can use reasonable force in a particular manner. Using pepper spray for self-defense. Let’s say you are in a bar. You notice a stranger walking toward you in a hurry. They are not carrying a weapon, but they still pose a threat to your safety. In that case, you might use your pepper spray. Or, let’s say someone trips you and kicks you while you are down. You may also legally use your pepper spray in that situation. It’s important to note that you cannot use your pepper spray to ‘get even’ or to retaliate against someone who just punched you in the face 15 minutes earlier. In other words, your use of pepper spray must be as necessary at the time you use it as it was at the moment you were threatened. If you wait until someone stops paying attention to you and then pepper spray them from behind, it will appear that you are retaliating rather than defending against an immediate threat. Thus, your use of force would be considered excessive and unreasonable.