§ 18.2-312. Illegal use of tear gas, phosgene and other gases.I was amazed that the 3d charge actually got through the preliminary hearing. I was certain that when I pointed out to the judge that the Halt! bottle introduced into evidence described its contents as "liquid" the charge would get dismissed. However, the general district court judge certified the case. In circuit court I moved for an expert and got told to talk to someone at the State forensic lab and see if he could help first (and actually, he was a great deal of help). Then came the trial. Here's the motion to strike the evidence at the close of the prosecution's case in chief:
If any person maliciously release or cause or procure to be released in any private home, place of business or place of public gathering any tear gas, mustard gas, phosgene gas or other noxious or nauseating gases or mixtures of chemicals designed to, and capable of, producing vile or injurious or nauseating odors or gases, and bodily injury results to any person from such gas or odor, the offending person shall be guilty of a Class 3 felony.
If such act be done unlawfully, but not maliciously, the offending person shall be guilty of a Class 6 felony.
Nothing herein contained shall prevent the use of tear gas or other gases by police officers or other peace officers in the proper performance of their duties, or by any person or persons in the protection of person, life or property.
THE COURT: The Commonwealth rests, Mr. Lammers.
MR. LAMMERS: Your Honor, at this time I have a motion to strike. In particular, I have a motion to strike on the 18.2312, illegal use of tear gas - the use of gas charge. I believe if you look on the side of the container that was entered into evidence, it will identify itself as a liquid. I remember reading that in general district court. It is spray. It's not something like a tear gas canister or such thing where you set it off and smoke erupts from it. It is a liquid. Now, I believe what the Commonwealth is going to rely on, Your Honor, would be that it is a chemical capable of producing such an odor for gas. And if you look at the evidence as stipulated, sir, if this stuff is sitting at room temperature - well, 212 degrees centigrade before it boils. And 175 -
THE COURT: It's 175.
MR. LAMMERS: It is 175 before it lets off major fumes, Your Honor. Now, while it may have some odor, all things have an odor. I mean, if I smell this podium, it's going to have an odor. The only gas that is going to be released is the H2O in the form of evaporation, and the expert, the man from forensic science couldn't say whether or not some capsaicin might evaporate with that. But it's not a major evaporation. Your Honor, I would say to you that the entire purpose of this is to stay a liquid so it does spray. It is inhaled, and that's the purpose of the item. It's not meant to become a gas. [note: I swear, I remember saying something about it being liquid because it was meant to be a persistent agent but it's not in the transcript] It's not a tear gas bomb. It's not mustard gas or anything. I think the purpose of the chemicals, as it states in there, would have to be something along the lines - I don't know how - in many volatile gases, you may store the inert qualities, the inert chemicals separately and put them together to form a volatile gas; that would be my - what I would believe is what they're trying to reach there. If you have what's meant to become this type of poisonous, dangerous gas, then you violate the statute. That's our first argument for striking it, Your Honor. The second argument would be there's no injury to the officer. Now. I realize the officer testified, and I do have -
THE COURT: Do you see my head cocking?
THE COURT: I see your head Your Honor. I looked into what injury is precisely under Virginia law. And as frustrating as it is to try to pinpoint, the Court of Appeals believes an injury is, "everyday ordinary meaning of injury." Crying a little bit, or however it would affect crying, or your nose stuffing up, or something along those lines, obviously since the officer is able to continue the pursuit, he wasn't stopped. He wasn't injured. I looked around at the various cases. Your Honor, and an injury - the widest definition I could find of injury is in the case of Luck against the Commonwealth. And in that case, Your Honor, it's a soft issue tissue injury. I think that there are a number of cases that - a number of cases which hint at the possibility that a mere bruise would be an injury, but I could never pin that down in a specific case. The entire purpose of this type of fluid, this type of liquid is to disable without injury. This is something that was created for mailmen to spray at dogs so you didn't have to hit the dog or hurt the dog, you just disable it for a short period of time and you could go, move away. And the dog would recover. It's not meant to injure anyone, sir. And I think at the very best, at the very best, that might be an ambiguous part of the statute. And as always, I would argue the fact that all statutes are to be construed strictly against the Commonwealth, it would call for it to be construed as I just did, sir. However, I don't think that we really need to reach that point. I think that it's a liquid, and I think that it's - I don't think that it falls under the statute, sir. I'll let the Commonwealth speak, sir.
THE COURT: Mr. Smith?
PROSECUTOR: Your Honor, in looking at 18.2-312. that statute. Judge. I've got copies if the court requires one. Basically there are six elements, the release in a place of public gathering, a mixture of chemicals that are produced causing nauseating odors and resulting in bodily injury. This statute is silent. It doesn't contemplate - it doesn't care about whether this item is in a gas form, a solid form, a liquid form, a plasma form. It doesn't matter. An odor in the common meaning of the term is the property or quality of a thing that stimulates or is perceived by the senses if smelled. Mr. Lammers is absolutely correct. A cup of coffee will have a distinct smell about it while it's in a liquid form. A rose is a rose. It smells like a rose, it is solid, and it has a distinct smell. Of course, those are not smells that are nauseating, at least to most people. Now, in this case, Judge, we have a chemical mixture, and that is illustrated by all of the materials that were supplied by the manufacturer itself. So when you look under the first sheet of the material safety data sheet, it lists component or material chemical name, and a percentage, 35.35 percent of a capsaicin, and that is one of the chemical components of this chemical mixture contained in this spray, which was released by the defendant in a parking lot at a public gathering that produced certainly a nauseating odor and bodily injury to Officer Jones. It caused a burning sensation, which I don't think anyone would question, being some sort form of hurt, which resulted in his eyes watering and his difficulty in breathing.
THE COURT: If I fill up a squirtgun with a mixture of water and Mr. Clean, and I squirt it at Officer Jones, would I be violating the statute?
PROSECUTOR: You have created a chemical mixture, Judge, with Mr. Clean, or whatever chemical agents you may add to it, if you release it in that form upon a person, yes.
THE COURT: So my example, if I put Mr. Clean in the water and put it in a squirtgun and squirt it at Officer Jones, I have violated the statute?
PROSECUTOR: Whether we call a homemade mixture. Judge, or whether we call it professionally produced tear gas, it doesn't matter. The point is, its an agent, a chemical mixture that is being used as a weapon. In this case, that is the purpose for which this statute was created. It doesn't care whether you make it in your bathtub, at your home, or you go to the store and purchase it. And some of these mixtures, some of these chemical compounds have legitimate uses, and that is why they're not all bad. And certainly pepper spray, as the case may be, has legitimate uses that it's carried by most police officers, most of the time. And, in fact, the statute contemplates its appropriate use there at the bottom. Nothing herein shall prevent the use of tear gas by a police officer or by other peace officers or by other persons in the protection of person, life or property. Unlawful use of this compound, we don't have that here. We have an unlawful use. We have a malicious use, as the defendant is using it to - employing it to further his escape and prevent being arrested.
THE COURT: Well, at this juncture of the evidence, in the light most favorable to the Commonwealth, the court the overrules motion to strike. Mr. Lammers.
[Important practice note for new lawyers: When the judge says this you've won. He's basically stating that the prosecutor may have squeaked past his prima facie case but (unless you screw up) there's not enough evidence for a conviction. Take the signal. Don't argue with the judge that this is a statutory argument and should be decided right here. Don't introduce evidence in your case in chief which could screw up your case.]
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After my client testified in order to contradict the officer's statement as to whether he knew the man chasing him was a police officer and whether he sprayed him (there was no new evidence as to the chemical composition since all that had been introduced during the prosecutor's case) I made a renewed motion to strike the evidence:
THE COURT: Go ahead.
MR. LAMMERS: Yes, sir.
THE COURT: Keep it brief, please. I've been paying attention, so just keep it brief.
MR. LAMMERS: Yes, sir. Well, I think you hit upon the crux of my argument or the weakness of the Commonwealth's when you said you put water into something with - I don't remember what you said exactly, but I would say lemon juice. You could spray that at somebody and that would be an irritant. And in construing the statute. Your Honor, I direct you to the doctrine of interpretation, [note: I absolutely know I said the words noscitur a sociis here; the court reporter just seems to have ignored it] which says that when there's a list in a statute you look towards that list when you interpret the statute. I have it here, if you want to see it, sir.
THE COURT: The statute?
MR. LAMMERS: No. I actually have the doctrine that I'm talking about.
THE COURT: I'm familiar with it, Mr. Lammers.
MR. LAMMERS: Okay. And as you look at this statute, there's very serious gases here, including tear gas, which is not as the Commonwealth has somewhat indicated, the same thing that officers carry on their side. They carry capsaicin which is similar to what my client had, but it's not tear gas. Tear gas is clearly a gas. Well, it can be released any number of ways. But it is a debilitating gas, if exposed for too long a period of time. The seriousness of the gas is not what this - is not the same category as what my client had, sir. Thank you.
THE COURT: Mr. Smith?
PROSECUTOR: Judge, to amplify my earlier point, the court should not lose sight of what this statute is trying to cover. Just by looking at well, if you have an item that has some kind of commercial or applicable use, there are a number of household chemicals and cleaners that we use that are great for cleaning floors, but when you put them in somebody's eye, you do permanent damage. The statute is drafted broadly enough so that whatever mixture of chemicals you put together, if it creates this effect, and it is used in such inappropriate fashion as described in this statute, it is a crime. It is a Class 3 felony, and I would ask you to find him guilty. Judge.
THE COURT: Although it's a nasty thing that Mr. Green did to Officer Jones, I can't find that this substance is the substance that is addressed in 18.2-312. I have read the exhibits. I have read the lab analysis. I read the statute, I can't find that. I think the consequence of Mr. Green's behavior is addressed in the assault, or would be addressed in the assault. I grant your motion to strike as to that charge. Mr. Lammers. Any comment as to the remaining charges?
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To this day I'm not sure why the prosecutor pushed this charge. I suspect it was because the officer was extremely upset and had gone to the trouble (along with the neutral magistrate) of looking up this charge because he wanted my client buried under the prison. Not terribly difficult to understand if things occurred as the officer said they did.
It was a stretch to try and get this under that statute. Mind you, this was kind of a Pyrrhic victory since my client's conviction on the other two charges and his prior record got him over three years. Still, if he'd been convicted of the gas charge as well I shudder to think what kind of time he might have gotten.
Any errors in the above come from my OCRing this and a ton of small errors which were in the transcript. I think I've fixed most but sure I missed some. Sorry if it causes any confusion.