September 26, 1994

ATTORNEY GENERAL OPINION NO. 94- 114

The Honorable Jim D. Garner

State Representative, Eleventh District

601 East 12th, P.O. Box 538

Coffeyville, Kansas 67337

Re:	Crimes and Punishments; Kansas Criminal Code; Prohibited Conduct--Crimes Against the Public Safety; Weapons Control--Criminal Use of Weapons

Synopsis:	Purchase, sale and possession of tear gas or pepper mace devices for purposes of self-defense under K.S.A. 21-3211 is not proscribed by K.S.A. 1993 Supp. 21-
4201(a)(3). Cited herein: K.S.A. 1993 Supp. 21-3211; 21-4201.

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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.

Very truly yours,

ROBERT T. STEPHAN

Attorney General of Kansas

Julene L. Miller

Deputy Attorney General

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