Dear Representative Garner:
You request our opinion regarding the legality of buying, selling and possessing tear gas or pepper mace devices for personal safety purposes in light of K.S.A. 1993 Supp. 21-4201(a)(3).
K.S.A. 1993 Supp. 21-4201(a)(3) provides as follows:
"(a) Criminal use of weapons is knowingly:
. . . .
"(3) carrying on one's person or in any land, water or air vehicle, with intent to use the same unlawfully, a tear gas or smoke bomb or projector or any object containing a noxious liquid, gas or substance;"
This provision does not prohibit the sale, purchase or possession of the listed items, but rather the carrying of such items. Compare K.S.A. 1993 Supp. 21-4201(a)(1), (6), (7), (8), (9). Further, one element of the offense is "intent to use the same unlawfully." See e.g. State v. Lassley, 218 Kan. 752, 754 (1976). Pursuant to K.S.A. 21-3211, use of force to protect one's person is not unlawful in certain circumstances. Therefore, purchase, sale and possession of tear gas or pepper mace devices for purposes of self-protection under K.S.A. 21-3211 is not proscribed by K.S.A. 1993 Supp. 21-4201(a)(3). We note, however, that there may be local ordinances prohibiting the possession of such items.