Updated at 1:53 p.m.
Getting hit with pepper spray can be a painful experience, but the District of Columbia Court of Appeals ruled today the spray shouldn't automatically be considered a "dangerous weapon" under the law.
The D.C. Council made it legal in the early 1990s to carry pepper spray for self-defense. In the underlying case, the defendant challenged her conviction of attempted possession of a prohibited weapon, arguing pepper spray shouldn't fall into the category of "other" unspecified dangerous weapons covered by the statute.
A three-judge appeals panel agreed. Judge John Fisher, writing for the court, said that although the spray was a "destructive device," it didn't meet the high standard for "dangerous," which means a weapon could cause "great bodily injury" or death. He said the government also failed to prove that the injury in the case rose to the level of pain that might qualify the spray as dangerous under the law.
"[E]very indication from the Council's decision to authorize possession of self-defense sprays suggests that, although their effects are intended to be “incapacitating,” any pain is temporary, and would be unlikely to meet our standard for extreme physical pain," Fisher wrote.
He added, however, that the ruling didn't mean the spray could never be a dangerous weapon. "We do not foreclose the possibility that, on a different record, pepper spray might be shown to be dangerous in certain formulations, when used in a particular manner, or when resulting in the requisite degree of injury," he wrote.
In the underlying case, defendant Elaine Jones was found guilty of the weapons possession charge, along with assault and second-degree cruelty to children following a fight with the mother of her granddaughter. During the fight, the other woman and the child were knocked down, according to the complaint, and Jones sprayed the other woman with pepper spray. Jones claimed at trial she was trying to protect the child.
Jones didn't challenge the assault conviction, but did appeal on the cruelty and weapons possession charges. The court affirmed the cruelty charge but reversed the weapons charge.
Jones' lawyer, Maryland-based solo practitioner Matthew Leefer, said today he wasn't surprised by the court's decision on the pepper spray issue. "It was interesting it was prosecuted as a prohibited weapon, because pepper spray is so widespread," he said. "You can buy this stuff pretty much everywhere and its possession is expressly permitted by statute."
The U.S. attorney's office, through spokesman William Miller, declined to comment.
Judge Kathryn Oberly and Senior Judge John Steadman also heard the case.