Commentary on Judgment No. 14608 of 2023: Carrying Pepper Spray and Regulatory Differences
Judgment No. 14608 of March 14, 2023, issued by the Court of Cassation, provides important clarifications on the issue of carrying canisters containing pepper spray based on oleoresin capsicum, the active principle derived from chili pepper plants, in public places. In particular, the Court has established that carrying such sprays can constitute a misdemeanor if the circumstances of time and place demonstrate their illicit use.
The Relevant Regulatory Framework
Law No. 110 of 1975 governs the carrying of weapons and instruments capable of causing harm. Specifically, Article 4, paragraph 2, provides for penalties for carrying instruments considered dangerous in public places. The Court also referred to the penal code, particularly Article 699, which punishes the unlawful carrying of weapons. It is crucial to understand the differences between these two regulations, especially in relation to the concept of self-defense.
Canister containing "pepper spray" based on "oleoresin capsicum" - Carrying in a public place - Misdemeanor provided for by Article 4, paragraph 2, of Law No. 110 of 1975 - Configurability - Misdemeanor under Article 699 of the Penal Code - Differences. The carrying in a public place of a canister containing "spray" based on "oleoresin capsicum" (principle extracted from chili pepper plants) constitutes the misdemeanor referred to in Article 4, paragraph 2, of Law of April 18, 1975, No. 110, where the particular circumstances of time and place of possession indicate that the "item" is intended for unequivocally illicit purposes (in this case, to harm robbery victims) and is entirely incompatible with self-defense, for which carrying in a public place is legally permitted.
Conditions for Constituting a Misdemeanor
The Court emphasized that the possession of pepper spray can constitute a misdemeanor only if specific conditions of offensiveness exist. It is necessary to evaluate the characteristics of the context in which the carrying occurs, distinguishing between situations of legitimate defense and scenarios where the use of the spray is intended to commit a crime, such as robbery.
- Presence of circumstances of time and place suggesting illicit use.
- Incompatibility of the intended use with self-defense.
- Ascertainment of the offensive characteristics according to the combined provisions of laws and ministerial decrees.
Conclusions
Judgment No. 14608 of 2023 represents an important precedent regarding the carrying of pepper spray. It clarifies that merely possessing such instruments is not sufficient to justify carrying them in public; a comprehensive assessment of the specific circumstances of the case is required. This judgment calls for a broader reflection on legality and individual responsibility in the use of potentially dangerous instruments. Therefore, it is essential for citizens to be informed about the legal risks associated with carrying such sprays, especially in public contexts.
