“Drew to defend him when he was beset” – Antonio, Shakespeare’s Twelfth Night, V.i.83

“All right, tell them phasers on stun. Good luck. Kirk out.” – Admiral James T. Kirk, Star Trek IV: The Voyage Home

A first-year college student who is too young to obtain a concealed-carry license or to legally purchase and carry a handgun carries pepper spray in her purse when on campus after dark.

A new parent who is uncomfortable having a gun at home or in his vehicle buys a stun gun off the shelf at the local sporting goods store.

A military veteran who has a felony conviction for possessing drugs that he was using to self-medicate is clean now but struggles with stable housing, so he carries a short aluminum bat under his coat for protection.

A retired pastor who has deeply held beliefs against taking life volunteers in remote rural areas. After having had some close encounters with unfriendly strangers and wild animals, she is looking for nonfatal deterrents.

In each of these scenarios, the person is seeking to exercise the constitutional right to self-defense, guaranteed under both the Second Amendment to the U.S. Constitution and article I, section 25 of the Wisconsin Constitution.¹ Not everyone wishes to, or even is legally allowed to, carry and use deadly weapons like firearms or combat knives.²

Some people have religious, ethical, or philosophical objections to the use of deadly force.³ Others have concerns about the risk that children could access the deadly weapons. Firearms are also expensive, and ammunition has become scarce and often prohibitively expensive. Conceal-carry licenses (CCLs) require that the applicant be 21 years of age or older.⁴ Further, there are many strict state and federal laws restricting firearms possession for people convicted of certain crimes and for people deemed not mentally competent to be allowed to possess a firearm.⁵

As an alternative, less-than-lethal options like pepper spray and stun guns are inexpensive, widely marketed, and readily available, both online and off the shelf at brick-and-mortar retailers.⁶ Lawyers need to know the possible legal perils for their clients who buy, carry, and use these weapons, in two related areas: self-defense and concealed carry.

This article has two parts. First is a classification of weapons into lethal and less-than-lethal types. Second is an in-depth analysis of Wisconsin statutes regulating the three most commonly marketed types of less-than-lethal weapons: chemical irritants (for example, pepper spray); bludgeons (for example, bats and collapsible batons); and electric weapons (for example, stun guns). Overall, the applicable state regulations, especially for billy clubs (described below) and electric weapons, are not as clear and consistent as is warranted for an important constitutional right such as self-defense.

Defining Types of Weapons: Dangerous, Lethal, and Less than Lethal

Is it illegal to carry a baseball bat in a vehicle for protection? Even if an item is on a vehicle’s front passenger seat, it is considered concealed.⁷ But the crime of carrying a concealed weapon (CCW) also requires that the weapon be “dangerous” under Wis. Stat. section 939.22(10), which defines “dangerous weapon” for the criminal code – unfortunately, in two ways that are not internally consistent.⁸

The first definition in Wis. Stat. section 939.22(10) for “dangerous weapon” is a list of specific items, such as firearms, electric weapons, and ligatures. The second definition establishes the broad categories of items with either lethal design (“any device designed as a weapon and capable of producing death or great bodily harm”) or lethal use or intent (“any other device or instrumentality which, in the manner it is used or intended to be used, is calculated or likely to produce death or great bodily harm”). Of the list of specific items, firearms and ligatures are manifestly lethal in their design. In contrast, an electric weapon is expressly designed not to be lethal; likewise, a bat or a collapsible baton. But electric weapons and billy clubs require a CCL.⁹

The internal inconsistency in Wis. Stat. section 939.22(10) is definitional: “dangerous weapon” is a tautology. By design, intent, and use, all weapons are dangerous; that is their raison d’être.¹⁰ A “non-dangerous weapon” is either a wall-hanging replica, a toy, or a stage prop. To paraphrase George Orwell, all weapons are dangerous, but some weapons are more dangerous than others.

The more accurate taxonomy is the degree of danger: lethal weapons versus less-than-lethal weapons.¹¹ Following Wis. Stat. section 939.22(10), a less-than-lethal weapon is a device designed, or used or intended to be used, to produce less than death or great bodily harm. Its purpose is to “incapacitate a threat without death and minimize permanent damage” and “to deter, disrupt, disorient, and deny instead of destroy.”¹² Accordingly, section 939.22(10) should define “lethal weapon” instead of “dangerous” and should exclude electric weapons. Thus, a person should not be subject to a CCW charge for concealing an item (in a pocket or vehicle) that is not designed to be lethal per se, such as a bat or baton, unless there is evidence of lethal use or intent. Below is a summary of the specific regulations for three types of less-than-lethal weapons.

Chemical Irritants (Pepper Spray)

Pepper spray, whose active ingredient is oleoresin of capsicum (OC), is the most common and least expensive option for less-than-lethal self-defense. OC spray devices can fit in the palm of a person’s hand and be attached to a keychain; many models sell for under $10.

OC is not defined in the Wisconsin Statutes. The only official definition is an administrative code provision for Department of Corrections guards at juvenile prisons: OC is “oleoresin extracted from fruits of plants of the genus capsicum. Oleoresin contains the active ingredient capsaicin and related compounds classified as capsaicinoids.”13 Capsaicin, a chili pepper extract with analgesic properties, is also a powerful chemical irritant that causes a burning sensation and pain when it contacts the eyes and skin.¹⁴

OC is not Mace, which is a trademarked brand name for self-defense spray.¹⁵ Chemical Mace, developed in the late 1960s, sprays the synthetic chemical phenacyl chloride or chloroacetophenone (CN).¹⁶ Members of the military and law enforcement shifted to less dangerous and faster-acting alternatives: OC spray for personal defense and opponent incapacitation and CS gas for control of crowds of people.¹⁷

It is illegal to sell, possess, use, or transport tear gas.¹⁸ 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).¹⁹ If the person acts in self-defense or defense of others, the penalty is reduced to a noncriminal, Class D forfeiture (with court costs, $389.50).²⁰ The Mace company sells a “triple-action” product that combines OC, tear gas, and an ultraviolet marker dye, so using this product even in self-defense can result in a costly ticket.

OC statutes have the same graduated penalties as statutes regulating tear gas.²¹ In contrast, though, using OC in self-defense or defense of others can be a complete affirmative defense, as allowed under Wis. Stat. section 939.48.²²

Changes in the statutes over the years have increased legal access to OC. Per 1993 Wis. Act 93, the legislature had delegated authority to the Wisconsin Department of Justice (DOJ) to promulgate and enforce regulations for OC, including potency, range, and weight, as well as rules governing safety packaging.²³ These DOJ regulations drew concerns from people who wanted to carry bear spray for protection in undeveloped areas.²⁴

In response, 2013 Wis. Act 77 made three major changes. First, it rescinded the DOJ’s power to regulate OC.²⁵ Second, it added an exception for minors to possess OC, as long as their parent, guardian, or legal custodian bought or gave them the OC.²⁶ A parent, guardian, or legal custodian who gives the child OC does not violate the statutes by doing so.²⁷ Third, 2013 Wis. Act 77 repealed the rules that OC be displayed behind a sales counter and have a highlighted caution statement on its packaging (the OC must still be properly labeled and sold with written safety instructions). In sum, OC is a cheap means of less-than-lethal self-defense even for minors.

Bludgeons

Though far less widely marketed than OC, some people choose bludgeons (weapons that deliver blunt force), such as bats or collapsible batons. Only billy clubs are explicitly regulated in Wisconsin, and the regulations are vague, raising due-process concerns.

Although a CCL is necessary to carry a concealed billy club, “billy club” is not defined in the Wisconsin Statutes.²⁸ Nor is there any guidance in any legislative drafting materials to 2011 Wis. Act 35 (“Act 35” or “the Personal Protection Act”), which legalized concealed carry. There is also no relevant Wisconsin case law defining “billy club.”²⁹

Merriam-Webster defines billy club as “a heavy usually wooden club, specifically: a police officer’s club.”³⁰ An etymological origin could be the French bille, “a short, stout stick.”³¹ One imagines the Victorian constable’s foot-long wooden truncheon, which he might twirl on its lanyard as he walked his foggy London beat. Modern police officers still carry a variety of this straight fixed-length wooden baton, often called a “straightstick.” In contrast, the “nightstick,” which may have originated as a name for the standard straight baton carried by police on night duty, has come to mean a baton with a side-handle.³² Perhaps the most popular bludgeons today are straight collapsible batons (also called expandable or telescopic batons). The genericized trademark is the ASP, derived from the name for the “flagship” law enforcement product from Armament Systems and Procedures.³³ This easily concealable model is apparently standard issue to FBI special agents and the Secret Service. There is no relevant case law analyzing straight collapsible batons.³⁴

Given the lack of a statutory definition for billy club, it is not clear that a CCL is legally required for concealed carrying of any of these bludgeons: straight fixed-length batons, side-handle batons (fixed or expandable), straight collapsible batons, or even homemade flails (for example, a sock with batteries or coins inside). And there are additional blunt-force items marketed and carried for self-defense, such as the kubotan,³⁵ the tactical pen,³⁶ and the tactical flashlight; the Roman cestus (gladiator boxing glove) and metal knuckles, both off limits for minors;³⁷ hickory “tire-thumpers,” which some truckers carry to test the air pressure in their vehicle tires; and “fish knockers” (or fish bats) used to stun fish once caught. None of these items are marketed as billy clubs.

Furthermore, three standard canons of statutory construction argue against defining billy clubs to include any of these bludgeons. First, just as a weapon by definition is dangerous, a CCL by definition should cover weapons that are actually concealable on one’s person. Two of the three types of weapons that require a CCL (handguns and electric weapons such as stun guns) by design can be easily concealed, in a pocket or waistband, for example.³⁸ Under the canon ejusdem generis (“of the same kinds, class, or nature”), a billy club should thus be in the class of weapons that are small and easily concealable. Not in this class would be the bigger non-collapsible batons, such as the 24-inch fixed-length variety, which would be impossible to hide in a pocket and difficult to effectively conceal on one’s person (unless one is wearing a long coat).

Second, the canon of plain meaning requires that readers take the statutory language at face value; one should not add words not actually in the statute.³⁹ If the legislature had wanted to require a CCL for any type of bludgeon, it could have said so.

Third, because of the criminal penalties, the rule of lenity should apply: the only conduct clearly covered is possessing billy clubs, not all bludgeons.⁴⁰ Thus, as noted above, carrying a concealed bludgeon like a collapsible baton on one’s person or in a vehicle should not mean a CCW charge per se, unless there is evidence of lethal intent or use.

Electric Weapons

Of the non-lethal weapons discussed in this article, electric weapons are subject to the strictest regulations in Wisconsin, but their regulation also involves the most issues. Remarkably, there is no substantive case law.

Electric weapon means any device that is designed, redesigned, used, or intended to be used, offensively or defensively, to immobilize or incapacitate persons by the use of electric current.⁴¹ This definition encompasses all varieties of commercially available electric weapons that work on direct contact, for example, stun guns, stun flashlights, and stun batons. Also included are products, sold by the TASER company, that shoot probes, which upon impact and the operator’s trigger pull deliver a cycle of electric current to disable an opponent. Unlike the class A misdemeanor for a CCW charge (for example, carrying a loaded firearm without a CCW permit), it is a Class H felony for a person to sell, transport, manufacture, possess, or go armed with any electric weapon.⁴² The weapon does not have to be concealed; even open carrying is illegal.

There are three key exceptions: for people with CCLs, in certain occupations, and while carrying in certain places.⁴³ As noted above, one must have a CCL to carry concealed any electric weapon. Thus, given the age restriction to obtain a CCL, unlike with OC, no one under 21 can legally carry a concealed stun gun in public. Three types of professionals are exempted from the restrictions on electric weapons: on-duty licensed private detectives, private investigators, and private security personnel.⁴⁴ For everyone else without a CCL or an occupational exemption, Act 35 created specific locational allowances: a person can carry an electric weapon “in his or her own dwelling or place of business or on land that he or she owns, leases, or legally occupies.”⁴⁵ A person without a CCL can transport the electric weapon “if the electric weapon is enclosed within a carrying case.”⁴⁶

However, there are some statutory ambiguities. First, the statute does not define key terms, such as “dwelling” and “land that he or she owns, leases, or legally occupies.” It is unclear how the statute would apply to a person who is an invitee of the legal owner. Similarly unclear is whether a person who is camping can keep an electric weapon in the tent and whether a person who is hiking can carry a stun walking stick on the trails. Second, it is unclear whether the safe transportation exception is only for motor vehicles. A person who buys a stun gun off the rack and bikes or walks home would seemingly be committing a felony.

Most concerning, in contrast with OC, there is not an explicit statutory self-defense exception for electric weapons. Those people who cannot legally obtain a CCL (that is, they are subject to a firearms ban or are under age 21) are out of luck. Consider the example of the college student from the start of the article; if she decided that OC was not sufficient for self-defense and so carried a stun gun that she bought from a hardware store, she faces a six-year prison sentence and the lifetime stigma of a felony conviction, which would bar her from ever possessing a firearm and ever getting a CCL, among many other serious lifelong collateral consequences.⁴⁷ She would be better off packing a loaded pistol (that she cannot legally obtain until she is 21) and risking being convicted of a misdemeanor CCW violation and its associated maximum of nine months in jail.

Overall, electric weapons need clearer regulations – terms like “dwelling” and “transport” need definitions to satisfy due process, and there should be an express exception for self-defense.

Conclusion

A variety of inexpensive less-than-lethal options are available, from pepper spray to bludgeons to stun guns, for people who cannot or do not want to carry firearms for self-defense. However, the applicable Wisconsin laws, especially for the latter two types of weapons, are not as clear and comprehensive as a fundamental constitutional right deserves. A person who wants to be prepared for self-defense and can obtain a concealed carry license should do so; a CCL is a must for electric weapons and advised even if not required for collapsible batons. For all weapons, lethal and less than lethal, one must be sure not to exceed the scope of the privilege of self-defense; even OC can be excessive if used disproportionally to the threat – as Kirk advised, set phasers to stun. Then as Shakespeare sagely penned, “[s]till you keep o’th’ windy side of the law.”⁴⁸

Endnotes

¹ Wis. Stat. § 939.48. For a summary of self-defense law, see Mark R. Hinkston, Home Safe Home: Wisconsin’s Castle Doctrine and Trespasser Liability Laws, 86 Wis. Law. 18, 20-21 (June 2013).

² For an in-depth analysis on Wisconsin knife laws, see Knives Out: Regulating Blades in Wisconsin, 94 Wis. Law. 12 (July-Aug. 2021).

³ “Countless people may have reservations about using deadly force, whether for moral, religious, or emotional reasons – or simply out of fear of killing the wrong person.” Caetano v. Massachusetts, 577 U.S. 411, 421 (2016) (Alito, J., concurring).

⁴ Wis. Stat. § 175.60(3).

⁵ Wis. Stat. § 941.29; 18 U.S.C. § 922(g)(1)-(9). There is a lifetime firearms ban for a person convicted in any court for a misdemeanor crime of domestic violence. 18 U.S.C. § 922(g)(9); 18 U.S.C. § 921(a)(33).

⁶ See A.J. Peterman, Second Amendment Decision Rules, Non-Lethal Weapons, and Self-Defense, 97 Marq. L. Rev. 853 (2014), https://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=5202&context=mulr.

⁷ State v. Walls, 190 Wis. 2d 65, 526 N.W.2d 765 (Ct. App. 1994).

⁸ Wis. Stat. § 941.23.

⁹ Wis. Stat. § 175.60(1)(j).

¹⁰ See Peterman,supra note 6, at 873, critiquing Justice Scalia’s mention in District of Columbia v. Heller, 554 U.S. 570, 627 (2008), of the “historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons’”: “A problem is that all weapons are inherently dangerous, so allowing bans on ‘dangerous weapons’ could allow a ban on all weapons.”

¹¹ “Non-lethal weapon” is less accurate, as that term implies that the weapon is not, nor even can be, lethal. See Peterman, supra note 6, at 860.

¹² Id. at 860.

¹³ Wis. Admin. Code section DOC 396.17(1) Chemical agents and weapons. This regulation is in the Administrative Code chapter for Type 2 Secured Correctional Facilities for juveniles adjudicated delinquent.

¹⁴ https://pubchem.ncbi.nlm.nih.gov/compound/Capsaicin.

¹⁵ See Tuba Sarosh, Mace vs Pepper Spray: What’s the Difference? Tech Sherlock (Nov. 26, 2021), https://techsherlock.com/mace-vs-pepper-spray/.

¹⁶ Daniel A. Gross, The Forgotten History of Mace, Designed by a 29-Year-Old and Reinvented as a Police Weapon, Smithsonian Mag. (Nov. 4, 2014), www.smithsonianmag.com/history/forgotten-history-mace-designed-29-year-old-and-reinvented-police-weapon-180953239/.

¹⁷ CS, or chlorobenzalmalononitrile, was first synthesized in the 1920s by Ben Corson and Roger Stoughton, whose initials give the compound its name.

¹⁸ Wis. Stat. § 941.26(1g)(b).

¹⁹ Wis. Stat. § 941.26(2)(c), (f), (g).

²⁰ Wis. Stat. §§ 941.26(2)(c), (d), 939.52(3)(d). SeeWisconsin Circuit Court Fee, Forfeiture, Fine and Surcharge Tables (updated April 19, 2021), www.wicourts.gov/courts/circuit/docs/fees.pdf.

²¹ Wis. Stat. § 941.26(4)(b), (d), (e).

²² Wis. Stat. § 941.26(4)(c)1.

²³ Wis. Stat. § 941.26(4)(i)2., (4)(j)2. Among the regulations are Wis. Admin. Code section Jus 14.05 (more than 10% OC unlawful), section Jus 14.06 (range must be less than 20 feet), and section Jus 14.08 (no camouflage OC product may be sold).

²⁴ Documents regarding Act 77 drafting are at https://docs.legis.wisconsin.gov/misc/lc/hearing_testimony_and_materials/2013/ab119/ab0119_2013_05_02.pdf.

²⁵ Wis. Stat. § 941.26(4)(m).

²⁶ Wis. Stat. § 941.26(4)(k)2. Otherwise, per Wis. Stat. section 941.26(4)(k)1., the minor is subject to a maximum $25 Class E forfeiture (with court costs $169).

²⁷ Wis. Stat. § 941.26(4)(g)1m. Otherwise, the person is subject to a Class C forfeiture of $500 (with court costs, $767.50) per Wis. Stat. section 939.52(3)(c).

²⁸ Wis. Stat. § 175.60(1)(j).

²⁹ See, e.g.,State v. Oimen, 184 Wis. 2d 423, 429, 516 N.W.2d 399 (1994) (a robber went armed with “a pool cue butt, a small billy club and a pocket knife,” but there is no description of length or design of this “small billy club.”).

³⁰ www.merriam-webster.com/dictionary/billy%20club.

³¹ www.etymonline.com/word/billy.

³² The origin may be the Japanese melee martial arts weapon called the “tonfa,” which may have come from ancient China or Thailand as a tool inserted into a millstone to grind rice.

³³ www.asp-usa.com/pages/history-heritage.

³⁴ State v. Martin, 2012 WI 96, ¶ 6, 343 Wis. 2d 278, 816 N.W.2d 270 (“the defendant had an expandable baton in his pocket. That baton was approximately six inches in length when collapsed, but was capable of expanding to a length of over 15 inches.”). The CCW charge for the defendant’s carrying of the baton on his person was not litigated on appeal. Id. ¶ 14 n.14.

³⁵ A self-defense weapon that can fit on a keychain ring, it is a metal or high-impact plastic rod around six inches long with finger-grooves for better grip. Some models have a tapered end or rounded point to focus force on impact.

³⁶ One aluminum model is marketed to shatter glass (for example, to knock out a window to escape from a vehicle).

³⁷ Wis. Stat. § 948.60(1).

³⁸ See, e.g.,State v. Popenhagen, 2008 WI 55, ¶ 47, 309 Wis. 2d 601, 749 N.W.2d 611.

³⁹ State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110.

⁴⁰ See, e.g., State v. Guarnero, 2015 WI 72, ¶ 26, 363 Wis. 2d 857, 867 N.W.2d 400.

⁴¹ Wis. Stat. § 941.295(1c)(a).

⁴² Wis. Stat. § 941.295(1m).

⁴³ Wis. Stat. § 941.295(2)(a-c).

⁴⁴ Wis. Stat. § 941.295(2g)(c).

⁴⁵ Wis. Stat. § 941.295(2g)(b).

⁴⁶ Wis. Stat. § 941.295(2r).

⁴⁷ Wis. Stat. §§ 941.29(1m)(a), 175.60(3)(c).

⁴⁸ Twelfth Night, III.iv.154.

» Cite this article: 95 Wis. Law. 26-31 (July/August 2022).