A newly filed lawsuit in San Diego federal court is challenging the constitutionality of California laws that prohibit state residents from buying and owning weapons that fire pepper projectiles, arguing that banning the less-lethal weapons violates the Second Amendment.
Such weapons are known as pepper projectile launchers and typically resemble a pistol or rifle, using CO₂ cartridges to fire pepperballs, which are about the size of paintballs and are filled with a chemical irritant powder designed to temporarily incapacitate the person being shot.
“Pepper projectile launchers are a commonly-used arm that many Americans choose as a non-lethal alternative to firearms,” the lawsuit argues. “California doesn’t just deny its citizens this choice; it criminalizes the act of selling or possessing such an arm. This inexplicable ban violates the Second Amendment.”
The lawsuit argues that a unanimous U.S. Supreme Court decision from 2016 held that less-lethal stun guns qualify as arms protected by the Second Amendment. “The non-lethal arms at issue here are similarly protected,” the lawsuit contends.
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The named plaintiffs in the suit are a woman who lives in San Diego County, a man who lives in Orange County and Byrna Technologies, described in the complaint as the manufacturer and seller of “the most popular pepper projectile launchers in the nation.” Byrna’s website informs would-be buyers that it does not ship its pepperballs to California.
They are suing Rob Bonta in his capacity as California’s attorney general. Bonta’s office did not immediately respond Tuesday to a request for comment.
Weapons that fire pepper projectiles are banned in California because the projectiles fall under the state’s definition of tear gas and the launchers fall under the state’s definition of tear gas weapons. State law makes it illegal to own and possess such weapons — with exceptions for law enforcement officers and some certified security personnel — as well as illegal to sell such weapons.
“The primary advantage of a less-lethal weapon is its ability to neutralize a threat and protect one’s family without the risk of causing permanent harm or death to either,” the lawsuit argues. “… For many law-abiding citizens, carrying a firearm for self-defense is not a practical or desirable option, yet these individuals have the same fundamental right to defend themselves. Pepper projectile launchers provide this critically needed defensive capability.”
The lawsuit also argues that pepperball weapons are a safer alternative to real firearms because the blunt impact of a pepperball is “comparable to a recreational paintball impact” and only about one-tenth of the force of a 12-gauge beanbag round. The suit argues that serious injuries from the weapons are rare “since they are specifically engineered to incapacitate through controlled irritation, and are not designed to inflict significant blunt trauma.”
While the Southern District of California has been a popular venue for firearms-rights groups to challenge California’s various firearm restrictions, the San Diego federal court is also where Second Amendment groups have often turned to challenge California laws banning other weapons such as billy clubs and switchblades.
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A San Diego federal judge ruled last year that California’s ban on switchblades is lawful. The plaintiffs appealed that decision to a three-judge panel from the 9th U.S. Circuit Court of Appeals, which heard oral arguments in October.
A different federal judge in San Diego ruled that California’s ban on billy clubs, batons and other similar weapons violated the Second Amendment. Bonta’s office appealed that ruling to the 9th Circuit; that case has been placed on pause until the U.S. Supreme Court decides if it will hear another San Diego-based weapons case.
Under precedent set by the Supreme Court in 2022 in New York State Rifle & Pistol Association, Inc. v. Bruen, California must be able to prove that its laws restricting weapons are “rooted in the Second Amendment’s text, as informed by history … (and are) consistent with the nation’s historical tradition of firearm regulation.” The state must also prove that pepper projectile weapons are “dangerous and unusual” and not in common use.
The lawsuit contends that Byrna has sold more than 750,000 of its pepperball weapons, proving that they’re in common use and neither dangerous nor unusual. It also argues that “there is no other historical tradition that could possibly justify California’s ban on pepper projectile launchers.”