Attorney Peter R. Heyne discusses the legality of Byrna self-defense products in Wisconsin. Are these "less than lethal" options a good choice for you and are they effective for personal protection?

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A company called Byrna Technologies, Inc., https://byrna.com, from Andover, MA, markets a variety of less-than-lethal products for self-defense (the website uses the term “less-lethal”). The company sells traditional chemical irritant pepper sprays and also CO2-powered pistols and rifles, which look like traditional firearms but fire (at speeds up to 330 feet per second) two different types of 68 caliber round ball ammunition.¹ The first type of Byrna “less-lethal” ammunition are balls containing chemical irritants that explode on impact (more commonly called “pepper balls,” but that is the trademarked product name of a competing company PepperBall, https://pepperball.com/). The second type of Byrna “less-lethal” ammunition are hard, solid plastic balls advertised as capable of breaking auto glass at 30 feet (this company calls them “Kinetic Projectiles”).² Are these products legal in Wisconsin? What are the legal risks?

Product Description

The Byrna pistols resemble the popular Glock handguns. Their most powerful model, the Byrna LE has an advertised muzzle velocity of 330 fps and a 5-round magazine; it can fire both chemical projectiles and the plastic balls. It is marketed as legal in all 50 states.

Ex. A. Bryna LE (also comes in orange)³

One of the Byrna rifles, the Mission 4, looks like an AR-15 semiautomatic rifle. It has an advertised muzzle velocity of 325 fps and two 19-round magazines; it can fire both the plastic and the chemical projectiles (one type in each magazine).

It features accessories like vertical fore grips, AR-15 style M-LOK shroud with 4-sided picatinny rails, flip-up adjustable front and rear sights, and an AR-style stock. It is advertised as “the next level of home-defense badassery.”⁴

As “badass” as these products may appear, are they legal for the private citizen to use for self-defense in Wisconsin?

Short Answer: Buy Beware - Illegal Tear Gas, and Risk of Unreasonable Force

Of the chemical irritant ammunition, the variety that has only OC (Oleoresin Capsicum, a/k/a pepper spray) is legal; the other variety “Max” is not, because those balls contain both OC and “tear gas” (CS in powder, not gel form). (A detailed analysis of the tear gas issue follows in the next section.)

Even if the Max balls were reformulated to contain the legal CS gel, both the chemical and the “Kinetic Projectiles” (plastic balls) could still likely expose their user to serious legal liability (civil and criminal) if they exceed the privilege of self-defense. Because chemical irritants work by direct contact with mucous membranes (eye, nose, throat), to be most effective, the user would need to fire the projectiles to explode into the attacker’s face. Multiple law enforcement officers have told this author that they are trained to shoot at the attacker’s chest and/or a wall/ground, with the intent that on impact, the chemical projectiles spread a cloud that can contact to the attacker’s eyes/nose/throat area. But this good aim presupposes sufficient training and experience; in the heat of the moment, with fear and adrenaline pumping and less-than-ideal environmental conditions (dark, rainy/foggy, etc.), the shooter may not hit the attacker’s chest but the face. It is one thing to spray OC into an attacker’s eyes/nose/mouth; the person sprayed feels intense burning, but there is not blunt force impact trauma. It is something else to shoot a large round projectile, even one designed to burst into a cloud of smoke, at 330 fps into someone’s face. It is something entirely next level to shoot a hard, solid plastic ball advertised as capable of breaking auto glass at 30 feet into someone’s face.

Especially when fired into a person’s face, there is a real risk of “great bodily harm,” defined in Wisconsin law as “bodily injury which creates a substantial risk of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily injury.” Wis. Stat. § 939.22(14). If the projectile hits the eye, for instance, there could be permanent or protracted loss or impairment of sight; if the projectile hits the mouth, there could be fractured teeth. In comparison, Wisconsin courts have held that a pump pellet rifle was a “dangerous weapon” per Wis. Stat. § 939.22(10), capable of producing great bodily harm, both as a compressed air weapon and, even when unloaded, a bludgeon. Rafferty v. State, 29 Wis. 2d 470, 138 N.W.2d 741 (1966).⁵

Indeed, “less-lethal” projectiles are capable of inflicting not just great bodily harm, but also death. In 2004, after the Boston Red Sox defeated the Yankees, the Boston Police tried to control an unruly crowd outside Fenway Park with “less-lethal” projectiles. A police officer shot an innocent bystander, Victoria Snelgrove (a college student), in the eye with a “less-lethal” pepper projectile, killing her.⁶ Under standard Wisconsin law of reasonable force, the privilege of self-defense would apply only if the person reasonably believed that such force is necessary to prevent imminent death or great bodily harm to himself or herself. Wis. Stat. § 939.48(1).

It would have to be a life-or-death situation, and if so, would you really trust your life shooting pepper balls into the attacker’s eyes? What if they were wearing eye/face protection? What if they were covering their eyes with one hand, or turning their head away as they attacked? If you were firing the “Kinetic Projectiles,” what if the attacker was wearing not only eye/face protection, but also law enforcement- or military-grade body armor which could surely deflect plastic balls? Even foam or plastic “body armor” used in AirSoft and paintball games might provide projection. The “kinetic projectiles” work on pain reception as a deterrence, so what if the attacker was high on illegal controlled substances like PCP?

There are other practical considerations that can render these items less than ideal for self-defense. These products all use compressed CO2 cartridges as a propellant. As anyone who has used CO2-powered cartridges (e.g., in a pellet pistol) can attest, before firing, the user has to insert the cartridge and then break its seal (often by twisting a knob on the butt of the pistol grip). In an emergency, those are precious seconds that you may not have to spare. Once the seal is broken, the cartridge will slowly leak the compressed gas and soon need to be replaced.⁷ Another company that sells pepper spray guns states that once penetrated, its cartridges will last 24 hours or 21 shots.⁸ The user should be prepared to reload a new C02 cartridge every single day that it is carried, a task that can be tedious and expensive.

In sum, these products may be “tacti-cool, but without the proper training and careful application, they appear just too risky—legally and physically—for use by the average citizen for self-defense. This “badassery” is more sizzle than steak.

Long Answer: "Tear Gas"/CS

The official Byrna company website lists six items that they will not ship to Wisconsin:⁹

1. Byrna BGR Hell Pepper (1lb)
2. Byrna BGR MAX (1 lb)
3. Byrna BGR MAX (2 oz.)
4. Byrna BGR MAX (0.5 oz - 2 Pack)
5. Byrna Max Projectiles (5 count)
6. Byrna Max Projectiles (25 count)

The chemical irritant sprays (the first four items—BGR Hell Pepper and MAX items, in any size, from 0.5 oz. to 1 lb.) should not pose any problems for those who can otherwise legally carry OC spray products in Wisconsin (e.g., those without felony convictions; those not subject to specific conditions of bond for a pending criminal case; or after conviction, to specific rules of community supervision). These items by their own product descriptions contain capsaicinoids and UV dye, but not CS gel or tear gas (as the Mace “Triple Action” product does—not legal in Wisconsin for private citizens because it has OC, UV marker, and tear gas). If the sprays contain no CS powder, it is unclear why the company will not ship legal OC products to Wisconsin.

The last two items (Max Projectiles, 5 and the 25 count varieties), however, are not legal in Wisconsin for private citizens, because by their own product description contain both OC and “tear gas,” specifically 8% Ortho-chlorobenzylidene malonitrile (CS) in powder, not gel form.¹⁰

Videos of the Byrna Max projectile found on YouTube show that the pepper balls fired impact with a cloud of smoke, not a splatter of viscous liquid (as with a traditional paintball marker).¹¹ In contrast to CS powder, CS gel is legal in Wisconsin. Per Wis. Stat. § 941.26(1c)(a), “CS gel” means “nonatomizing, gel-form chlorobenzalmalononitrile.” “Nonatomizing” is not defined in any Wisconsin statutes, but in federal environmental regulations, for example, “atomizing” means to turn a substance into very small particles (think scattering into tiny atoms).¹² Items with CS gel, which does not atomize, are lawful for private citizens to use for self-defense. Wis. Stat. § 941.26(4)(a).

It is illegal in Wisconsin to sell, possess, use, or transport “tear gas,” or “any similar substance.” Wis. Stat. § 941.26(1g)(b). The penalty is up to nine months in jail for violations prosecuted as Class A misdemeanors and up to six years in prison for violations prosecuted as Class H felonies (if the tear gas is used against a peace officer acting in an official capacity or used in the commission of another crime against another person). Wis. Stat. § 941.26(2)(c), (f), (g). One first imagines the classic “tear gas” CS canisters thrown or launched by police SWAT teams, military units, and border patrol for riot control. This tear gas is not gas per se (contrast with, say, nitrogen or oxygen in true gas form); instead, the canister releases smoke from an ongoing burning chemical reaction; the CS fine powder binds to this smoke.¹³ This CS-infused smoke can thus spread quickly in the wind and cover a much larger area than a sprayed gel. By analogy, think of a billowing cloud of smoke from a campfire/bonfire, versus a thin stream of hornet spray.

Thus, as the Byrna Max projectiles contain CS powder, not gel, they still qualify as “tear gas” and are thus illegal in Wisconsin. The company prudently does not ship them to Wisconsin.

Conclusion

In sum, the Byrna “less-lethal” products are a mixed bag. The chemical irritant sprays should all be legal, as they contain only OC and not tear gas. However, the “Max” chemical projectiles are illegal, as they have CS-powder/tear gas. The OC-only projectiles and the hard plastic “kinetic projectiles” are legal, but there is a significant risk of causing great bodily harm or even death, so unless it is a life-or-death situation, they appear to be just too risky to be worth it.

Instead, if you can get a Concealed Carry License (CCL), then get one and carry a firearm. If you do not want to carry a lethal weapon, as long as you are not a convicted felon or otherwise not barred by conditions of bond or community supervision, consider OC spray, an electric weapon, knife, or bludgeon instead.¹⁴ If you cannot yet get a valid CCL (e.g., you are under 21), then right now you are likely limited to OC and knives. In any case, CCL or not, you should study an evidence-based martial-arts system like Gracie jiu-jitsu; when it counts, weapons can fail you, and your life, and the lives of your loved ones, are all worth defending.

Sources

[1] For reference, 68 caliber is .68 inches in diameter—the same size as traditional paintball pellets (a dime, for comparison, is .705 inches in diameter).

[2] https://byrna.com/collections/less-lethal-self-defense-ammo. The company also sells a “kinetic less lethal 12 gauge” round that fits in standard 12-gauge shotguns.  https://byrna.com/products/less-lethal-12-gauge-round-10ct

[3] https://byrna.com/products/le-kit

[4] https://byrna.com/collections/less-lethal-self-defense-rifles/products/mission-4-by-byrna

[5] See also State v. Antes, 74 Wis. 2d 317, 325, 246 N.W.2d 671, 675 (1976) (superseded by statute on other unrelated grounds) (citing Rafferty, the state supreme court held once again that “the unloaded pellet gun qualifies as a dangerous weapon… when used as a bludgeon, is capable of producing death or great bodily harm”). 

[6] https://www.washingtonpost.com/archive/politics/2004/10/24/boston-police-suspend-use-of-pepper-ball-guns/dd773f5d-1651-4c2a-8a82-b967d77958b5/

[7] See the Byrna product page: https://byrna.com/collections/byrna-co2/products/byrna-12-gram-co2-cartridges : “It is recommended to keep an unpunctured cylinder in your launcher at all times for self-defense purposes. Punctured cylinders within your Byrna Launcher will leak over time.” (bold and underlining in original)

[8] https://www.saltsupply.com/pages/co2-cartridge-informatio 

[9] https://byrna.com/pages/restrictions (searchable by state).

[10] https://byrna.com/products/byrna-max-oc-cs-projectiles?_pos=1&_psq=max%20projv&_ss=e&_v=1.0 ; on the right side of the page, under the tab ”Quick Links,” click on the link “Byrna Max SDS (download)” to pull up the PDF of the SAFETY DATA SHEET V1.0 (pop up window, not separate URL).

[11] See, e.g., https://www.youtube.com/watch?v=v_m6rt8xeJA “Byrna Pepper / CS Gas Handgun - How does it work?” at time mark 6:17 and on.

[12] See, e.g., “Spray gun means a device that atomizes a coating or other material and projects the particulates or other material onto a substrate.” 40 CFR § 63.742 – Definitions for the EPA’s National Emission Standards for Aerospace Manufacturing and Rework Facilities.