Understanding the Laws Governing the Use of Pepper Spray in Maryland: A Legal Guide

An In-Depth Look at the Legality of Carrying Pepper Spray in Maryland

In the United States, laws governing the use of pepper spray vary by jurisdiction. As they place restrictions on, or otherwise regulate, its use or access, those jurisdictions can be placed into three general categories: (1) highly restrictive states that allow for no or little access to the public; (2) those that permit access for use in self-defense situations only; and (3) practioners that permit private use and do not distinguish between purposes. Maryland is one of the majority of states that falls into the second category. Specifically, the law in Maryland provides a broad definition of "asphyxiants" and renders unlawful their import, distribution or manufacture within the state. The law specifically places pepper spray in that category of materials which may not be manufactured, imported into, or distributed within the state except under certain tightly controlled conditions.
Maryland law considers the term "asphyxiants" to include, without limitation, the following substances when used in a manner in which they could impede the normal breathing of any individual:
Subsequently, the law prohibits any individual from importing, distributing or manufacturing "asphyxiants," as defined above, within the state, or possessing or using those products while intoxicated, although there are certain carefully defined exceptions. In practical terms this makes pepper spray illegal to manufacture, distribute or sell in the state without the appropriate license and permits. With regard to non-lethal projectile weapons, including pepper spray, these weapons may be purchased or possessed by those 18 years of age or older, or those under 18 years of age with parental consent.
Additionally, the law generally prohibits "asphyxiants," including pepper sprays, from being possessed or used in Maryland, or by Maryland residents, unless those materials are specifically for use in teaching chemical agents in educational institutions, or teaching or training individuals who are in Maryland for military, security, law enforcement, industrial or fire department purposes . Penalties for violation of this provision generally range from fines of $25 to $1,000 or imprisonment not to exceed 12 months or both.
In contrast to the general prohibition on possession and use of pepper spray, however, there is an exception for personal self-defense: An individual may possess pepper spray, as defined above, for a legitimate self-defense purpose by one of two means. First, any person who is 18 years or older may possess and use pepper spray for a legitimate self-defense purpose if that individual has not been convicted of a crime of violence. A "crime of violence" is a conviction for:
Second, An individual under the age of 18 may possess and use pepper spray for a legitimate self-defense purpose if that student is authorized by a teacher or other adult employee of the school, as well as by a parent or guardian of the student, in accordance with rules adopted by the local board of education of the county in which the school is located.
An important point to consider, however, is the fact that pepper spray is not the only form of self-defense spray available for private use. There are many commercially available, and legal, options that have very similar compositions to many commercially available pepper sprays. However, because these sprays do not have the intended purpose of protecting against physical attack, and therefore are not necessarily meant to impede normal breathing, those products may be more likely to contain generally approved propellants, such as compressed air. Further, these alternative sprays may be registered at the federal level with the Environmental Protection Agency as substantially less toxic and of less environmental hazard than the propellants found in many commercially sold pepper sprays.

Who is Allowed to Carry Pepper Spray in the State of Maryland?

Maryland law does not require a permit or any particular permit to purchase and possess pepper spray. There are however age requirements. In Maryland, you must be at least 18 years old to legally purchase and possess pepper spray. However, even without age restrictions, it is a good policy to do the research on pepper sprays to figure out which one would be best to keep in your home or travel with. Having pepper spray does not mean that you are licensed or trained to use it. Being able to rely on self-defense as a defense to a charged crime requires more than just possessing a weapon.
Both Maryland and the federal government have weapons laws that restrict the conduct of certain individuals with respect to various dangerous weapons, including pepper spray. In Maryland, prohibited individuals include: a person who: (1) has previously been convicted of a crime where you were sentenced to imprisonment for 1 year or more; (2) is under 18 years old (except for those in the military); (3) is under guardian; or (4) is a habitual drunkard (alcoholic).
Similarly federal law prohibits people that are subject to certain domestic violence protection orders or people who were previously convicted of certain domestic violence offenses from preparing or purchasing certain weapons, including pepper spray.
Although not prohibited by law, pepper sprays should be used with caution – especially around children.

Legal Uses for Pepper Spray Under Maryland Law

In most circumstances, the legal use of pepper spray in Maryland as a self-defense tool is permitted and should largely remain free from potential criminal liability. The law, however, does not condone the intentional or reckless use of pepper spray where no immediate threat of injury arises. In these situations, the use of pepper spray will not qualify as "justifiable self-defense" and charges such as second-degree assault (CR § 3-203) or maliciously releasing a gas that causes harm (CR § 3-1004) may result.
By way of example, using pepper spray against an animal who has aggressively approached you may be lawful but spraying the same animal when it poses no threat of injury would not be. Once the immediate threat no longer exists, any such use of pepper spray would likely be characterized as an unlawful act.
Under Maryland law, in any investigation, police are generally required to include evidence that the defendant’s use of defensive force was reasonable or justified under the circumstances. This requirement ensures that even the police know when the use of a chemical spray is lawful under current state law and when it is not.
The law goes on to define the circumstances that warrant a finding of justifiable self-defense within a criminal punishment proceeding as "the use of force against another that the actor believes to be necessary to defend himself … against that other’s imminent use of unlawful force" (CR § 3-404). Within the context of pepper spray, imminent and unlawful force must be indicated for a use of this kind of chemical agent to be characterized as "reasonably believed" or "justifiable" self-defense.

Consequences of Misusing Pepper Spray in the State of Maryland

While the vast majority of people who carry pepper spray in Maryland do so in accordance with the law, some choose to use it for illegitimate reasons. In fact, some use it as an alternative to traditional "non-lethal" weapons such as tasers and stun guns, which are illegal to own or carry in Maryland. The potential penalties for using pepper spray are certainly severe enough to deter most people from even risking it.
Because OC oil is classified as "tear gas" or "noxious gas", individuals found in possession of pepper spray or mace without a valid handgun permit will be charged with the crime of possession of a prohibited weapon under Criminal Law § 4-101. This is a misdemeanor that carries a potential sentence of 3 years in jail and a $5,000 fine.
Even when a person possesses pepper spray, it’s still illegal to use it for unlawful purposes. This can include dissipating a crowd or dispersing a line without permission to do so. This is often treated as a form of disorderly conduct. Thus, the criminal penalties for disorderly conduct can be imposed in addition to the penalties of possession of a prohibited weapon.
If someone is seriously injured by the pepper spray because it was used intentionally , then the person who used the pepper spray may be charged with assault. If the victim was a police officer who was intentionally targeted, the charge is typically first-degree assault of a police officer, which is a felony punishable by 25 years in prison and a $25,000 fine.
As is the case with many other alleged crimes, the charges for illegal possession and use of pepper spray may be expanded if the person who committed the crime is a juvenile. In fact, juveniles may face restricted placement to the Department of Juvenile Services until the juvenile reaches 21 years of age, or they may be incarcerated if they are charged as an adult. It’s also worth noting that juveniles who are charged with a crime as a minor will have a record sealed when they reach adulthood, which will not be the case for an adult who has been arrested for a crime such as illegal possession and use of pepper spray.
It’s also possible for someone who uses pepper spray for self-defense purposes to be arrested. Just because someone is charged with a crime does not mean the person committed a crime. There are many legitimate and successful defenses to possession and use of pepper spray in Maryland, which will be discussed in the next section.

Maryland Pepper Spray Laws versus Those of Surrounding States

When examining the states that share a border with Maryland, we see some marked similarities in their pepper spray laws. In Virginia, D.C., West Virginia, and West Virginia the only real regulation is the restriction of the quantity of active ingredient in the spray.
However, in Pennsylvania, there are additional regulations on the type of sprays that are permissible. As in Maryland, all pepper sprays must be:
So, while the actual law is written with an eye towards restricting the chemical only, it’s clear that the legislature intended any propellent to be excluded from the 18% cap. Pennsylvania also bans chemical sprays that have been deemed unlawful by the courts. The Pennsylvania State Police manages a list of prohibited sprays and advises that retailers verify that their products fall within the parameters of the law.

Tips on How to Safely and Legally Carry Pepper Spray

When it comes to safely carrying and using pepper spray, there are several best practices that every Maryland resident should be aware of. As previously discussed in this blog, it is pocket-sized, easy to conceal, easy to operate and provides a non-lethal alternative to other methods of self-defense. However, you need to make yourself familiar with how to carry and properly store pepper spray so that you do not accidentally deploy it.
First, it is generally a good idea to carry your pepper spray in a spot that is easily accessible, but out of sight from the prying eyes of thieves or other offenders. For example, you may wish to carry pepper spray on your belt (if you choose a product that comes with a belt clip) or in the pocket of your jacket or purse.
When it comes to properly storing pepper spray, there are certain factors that you should keep in mind. First, you should avoid storing pepper spray in areas of your home that may be subject to extreme temperatures. Extreme high or low temperatures can cause the contents of a canister to become pressurized or depressurized , making it more likely that your pepper spray will leak. Additionally, you should keep your pepper spray far away from children or other pets.
When you do use pepper spray, it is important to take certain precautions to remain safe. First, you should only use your pepper spray if absolutely necessary. Doing so will both help prevent injury to yourself and increase the chance that prosecution of an offender will succeed.
If you do need to use your pepper spray, you should consider using it as a last resort. You should also avoid spraying pepper spray near food, as this will endanger not only the other people in the area, but you as well. If you can help it, you should also avoid emptying a bottle of pepper spray on the ground. Doing so could severely injure someone or, at the very least, damage their clothes or property. You should also avoid discharging your pepper spray in the home or in small, enclosed spaces, as this may result in injury to yourself or other people.