What is Bear Spray?
Bear spray is powerful deterrent intended to dissuade agitated or aggressive bears from charging, attacking, or otherwise wreaking havoc upon humans. Bear spray is non-lethal and it primarily employs a form of oleoresin capsicum—a sticky, oily, and spicy substance detached from the capsicum chili family of plants—to create its cloud of deterrent. Oleoresin capiscum has been reported as having an effectiveness between 90-92% , and studies have shown that bear spray is more effective at protecting people against aggressive bears than firearms are. Most experts believe that carrying bear spray if you are going to be in a bear-prone area, such as a national park, is a must. Yet, even if you are not particularly interested in attracting bears, the simple facts are that bear spray (when contained in an acceptable sized can) is not a significant self-defense tool.
Texas Statutes Related to Defensive Sprays
In the state of Texas, it is legal to possess defensive sprays that are used for purposes of protecting oneself from an imminent threat. However, there are laws and limitations in place to regulate the types of sprays that are permitted.
Under chapter 46 – Weapons, section 46.05(a), it is illegal to intentionally or knowingly use a chemical dispensing device against another unless the actor is the duly appointed agent or employee of an agency having a duty of protection for the general public, is permitted by law to access the chemical dispensing device on the agency’s premises, and the actor uses the device solely to protect the general public.
In layman’s terms, this generally means that you have the right to possess and use an aerosol spray to protect yourself in a situation where you feel threatened. This protection extends to both violent and non-violent attacks, not just those made with weapons.
Use of any of these items against a person in defense of yourself, your family or your home would be by definition self-defense, and therefore legal.
Is Bear Spray Legal in the State of Texas?
Bear spray is known for its use in the great outdoors as a way to deter Grizzly bears from making unwanted encounters with humans. However, if you’re not in a ranger-guided outdoor setting or camping site, you might be wondering where it stands in Texas. Is bear spray legal there? What about other types of similar sprays used for self-defense?
There are no specific laws against possessing or using bear spray in Texas. In fact, bear spray is not even specifically referenced in the law. However, because bear spray cans are configured similarly to pepper spray, some people ask if bear spray can be classified as a form of pepper spray.
Section 46.05 of the Texas Penal Code states that "a person commits an offense if the person intentionally, knowingly, or recklessly possesses or transports a chemical dispensing device." This law forbids carrying or having on your premises any chemical dispensing device containing a mixture of three percent (3%) or more by volume of methylene chloride.
Bear spray is not a common chemical dispensing device as described in the law, but some people could be tempted to claim that it is. This law does not apply to a device manufactured, imported, or sold for commercial purposes by using as its active ingredient a chemical contained in a product regulated by the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Section 136).
Most bear sprays contain natural deterrents such as capsaicinoids that cause inflammation, burning, and pain in the mouth and eyes. The label on most bear sprays indicates that it is not a "chemical weapon" or "chemical warfare agent" for military applications. The bear spray itself is not specifically mentioned in the law nor are these types of natural active ingredients. Therefore, the law does not seem to hinder the possession or use of bear spray in any way.
However, if a chemical dispensing device contains methylene chloride, it would be controlled by this law and would likely be banned. Methylene chloride is a colorless aromatic liquid whose vapors are highly toxic. It is used primarily as a solvent for paints, varnishes, and adhesives, as well as in the extraction of caffeine in decaffeinated coffee.
Methylene chloride can also be used in the thinning of pesticides because it is effective at penetrating past untreated sections of a surface to a depth capable of preventing sprouting. It can also increase the speed of penetration into weeds and thorns, making its use in herbicides and insecticides potent. However, due to its dangerous nature, there is a ban on the import or sale of methylene chloride and its mixtures.
Bear spray is just one type of spray designed to give you extra protection while out and about. As with other types of pepper sprays, it is ("almost") always legal for self-defense throughout Texas. Much like bear spray, these sprays mimic the effects of capsicum, the active ingredient in hot chili peppers, used to incapacitate an attacker.
Section 46.01(13) of the Texas Penal Code defines a "chemical dispensing device" as a "device that releases a substance intended or designed to immobilize a person."
Unless specifically prohibited by law, pepper sprays are legal for sale everywhere in Texas.
How Does It Compare to Other States?
While Texas has relatively lax laws regarding bear spray, other states have more stringent regulations or even enacted outright bans. For instance, New York and Maryland have among the most restrictive bear spray laws in the United States.
New York imposes restrictions on the possession and sale of bear spray, with some exceptions. Under New York environmental regulations sections 11-0933 through 11-0941, New York bans the sale and possession of bear spray for use in New York. However, there is an exception for "bear biologists" and others who can provide verification that they require bear spray as part of their occupation and have been trained in its use.
Oregon’s Department of Fish and Wildlife prohibits the use of "anhydrous ammonia, acetone, bleach, automatic transmission, power steering or windshield washer fluids, or any other product not manufactured as an animal deterrent" in the state.
In a similar fashion, Minnesota requires permits for the sale and possession of bear spray. Minnesota statute section 609.9452 prohibits anyone but "[t]he manufacturer or supplier" from possessing bear spray "without a permit issued by the commissioner of natural resources." The requisite permit requires the applicant to: Most other states allow for the use of bear spray and do not impose strict legislative regulations surrounding its sale.
The Uses for Bear Spray In Texas
In addition to its namesake purpose, bear spray can find utility in deterring a range of unwanted encounters. One such situation could be an encounter with an aggressive bobcat encountering your pets or livestock, while on the other side of the size spectrum, a full-grown moose can be deterred with close-range bear spray as well. Use of bear spray to deter a moose would likely not result in criminal charges assuming it was done in a reasonable manner and only as a protection measure.
While legal bear deterrence is limited to these wildlife encounters, inside the state of Texas there are, of course, many other situations where bear spray could be utilized for protection and self-defense. The most obvious legal use for bear spray in Texas is for self-defense against human attackers. The number one self-defense use for bear spray that I see in Texas is for women and elder people who may not have the ability to carry and utilize a firearm. I have seen a number of elderly clients across my desk in the thousands of Texas gun trusts I have drafted over the past ten years who have opted for bear spray as their primary means of self-defense. Also in this same realm, the Houston area has had a lot of assaults by aggressive coyotes as well as by aggressive stray dogs . A situation like that is a perfect opportunity for bear spray. There are other uses for bear spray as well as far as self-defense goes, but those uses require issuance of a permit such as pepper sprays sold for law enforcement purposes. If you want to carry and use bear deterrent spray as a self-defense issue, you are limited in what sort of bear spray you can use.
Legal bear deterrence does not stop with "self-defense." Bear deterrence can also be used for defensive property purposes in the state of Texas as well. Take the previously mentioned situation where a moose is attacking your livestock. Oftentimes, when a moose or other wild animal gets after your livestock, they do the most damage to the structures around them. Bear spray can be utilized to protect your livestock and yourself from being harmed by the wild animal, thus preventing the need to destroy your livestock, your home, and any other property that may have gotten in the way in line-of-fire. Similarly, bear deterrence spray can be utilized for the same property protection purposes when it comes to aggressive stray dogs or coyotes. It would have been useful during the recent coyote attack in Houston.
Alternatives to Bear Spray for Self-defense
While bear spray is illegal to carry in Texas, there are a host of self-defense weapons that a Texan can carry without running the risk of breaking state laws. There are two key rules that determine if a weapon is legal to carry in Texas: it cannot be a prohibited weapon AND it cannot be designed, made, or adapted for the purpose of causing serious bodily injury or death by shooting another person. Basically, if you consider a coffee cup and a handgun, most people would agree that the latter is designed, made, and adapted for shooting people.
Under the second rule, there are a few grey areas. The intent of the manufacturer is very important here. But, in the case of bear repellent spray, it could pass the test. Some people have argued with me that bear spray is equivalent to mace, which is considered a prohibited weapon because it is made for the purpose of causing bodily harm. Bear spray, however, is manufactured as a show of force to deter bears, not attack humans. Since manufacturer’s intent is a litmus test for determining legality, bear spray could pass for committed individuals.
The second rule also seems to imply that swords are legal since they were originally made for the purpose of injuring or killing other humans. I’ll blog more on that later.
Here are some other self-defense options that would be entirely legal for a Texan residing in Texas.
Pepper spray
Pros: Most people will have no problem with you carrying pepper spray. It is highly effective at subduing an attacker and has a very low chance of causing serious injury.
Cons: Pepper spray ironically works better on bear than humans. If you have ever accidentally sprayed yourself with the stuff you know that it burns like the devil. However, with a degree of adrenaline pumping, a human may not feel it for a while. A bear will care about the sting immediately, which is why it works so well on them.
Hands
Pros: Your hands are always on you! Also, if an attacker doesn’t blow the drug test, he also won’t blow his own fight. This means a little jiu-jitsu could go a long way.
Cons: Unless you’re a trained fighter, you really shouldn’t fight anyone unless absolutely necessary. You do not want to find yourself in a serious legal battle with an attacker because you threw a punch or two. Also, keep in mind that you are at a huge risk of serious bodily injury even when you have the element of surprise on your side.
Debugging stick
Pros: There are plenty of sticks on the ground wherever you go and you can almost always find a good one to heft as your self-defense weapon of choice. Also, a stick allows you the distance you need to perform a strong, lethal strike without putting you in danger of the attacker’s potential strikes. It also allows you to easily escape.
Cons: A stick will at best do what a great hard slap could do to an attacker. That is, cause enough pain to give you time to escape. However, if at any time you think you may need to hit an attacker with a stick for self-defense, that attacker has already moved into deadly threat territory and you should act like it.
Pocket knife
Pros: A pocket knife is super cheap and legal to carry anywhere in Texas. It can present you with a thousand different self-defense opportunities depending on the situation and elevation of the knife itself.
Cons: The legal definition of "deadly weapon" makes it unclear exactly how you should use the knife to defend yourself before it becomes a prohibited weapon. If you stab someone, it looks a lot like murder. If you slash, it looks like you were going for a ten but landed a three.
Consequences of Misuse of Bear Spray
While using bear spray may be legal, misuse can lead to a number of legal consequences. Texas Penal Code (Tex Penal § 9.41) addresses "the use of force or immediate retaliation." The law states:
(a) A person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful force.
(b) A person is justified in using deadly force against another:
(1) if the actor would be justified in using force under Section 9.31, and when and to the degree the actor reasonably believes the deadly force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful deadly force; or
(2) if the actor would be justified in using force under Subsection (a), and when and to the degree the actor reasonably believes the deadly force is immediately necessary to prevent the other’s imminent commission of ‘aggravated abduction,’ ‘arson,’ ‘burglary,’ ‘criminal mischief,’ ‘criminal trespass,’ ‘homicide,’ ‘kidnapping,’ ‘ robbery,’ ‘sexual assault,’ or ‘terroristic threat,’ as those offenses are defined by Texas Penal Code § (Tex Penal § 1 . 07).
A crime of assault under § 22.01 of the Texas Penal Code states:
(a) A person commits an offense if the person:
(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse; or
(2) intentionally or knowingly threatens another with imminent bodily injury.
…
(b) An offense under this section is a Class C misdemeanor, except that the offense is a Class B misdemeanor if the offense is committed against a person the actor knows is a public servant, as defined by Section 1.07, and the actor:
(1) carried a deadly weapon during the commission of the assault; or
(2) previously been convicted of assaulting the same victim,
Even if the municipal ordinance on bear spray does not address improper use of bear spray, the legal consequences of using bear spray against people who are not a threat are real. If the case is brought to trial, the defense would not be able to argue that Texas law permits the use of bear spray as a self-defense mechanism, or as a means of deterring a threat, because their actions were not in response to a use or attempted use of unlawful force.