11 Things You Should Know About Carrying A Loaded Firearm In Public

By: Diana Aizman

It is illegal in California to carry a loaded firearm in public or on a public street in an incorporated area1 or in a vehicle unless you are an exempt person or under certain circumstances pursuant to Penal Code Section 258502. This also includes being in a public place or street in an unincorporated area or prohibited area therein. The prohibition is clear about not having a loaded weapon in a car3

Whether you are guilty of this code section depends on whether your actions or the weapon fits certain definitions.

What is Considered a Firearm?

The definition of a firearm under California law is found in PC 16520. It is a revolver, rifle, shotgun, Taser, flare gun, handgun, pistol, machine gun, rocket launcher, AK-47 or any other device from which a projectile may be expended through a barrel by combustion or force of explosion.

It does not include a pellet or BB gun.

What Is Considered A Loaded Firearm?

A loaded firearm4 has certain characteristics under this law. The definition consists of:

  1. An unexpended cartridge or shell, that is,
  2. In a case holding a charge of powder with a bullet or shot, that is,
  3. In or attached to the firearm such as in the firing chamber or magazine or clip attached to the firearm, OR,
  4. If a muzzle loader, then if it is capped or primed and has a powder charge and ball or shot in the barrel or cylinder

Even if your firearm is not capable of being fired, it is still considered loaded if it fits within the above characteristics5.

Public Place

A public place is not private property from which the public is generally not allowed to be on absent the consent of the property owner but a location or area generally accessible to members of the public.

Unincorporated Area

Cities, towns and villages are typically incorporated but not every public location is part of such an entity though it will be part of a township, borough or county. Taxes are usually lower in unincorporated areas but there are usually less services as a result. These areas are still subject to state and county laws and ordinances in the areas where they exist including those pertaining to firearms.

Prohibited Place

A prohibited area is any location where discharging a firearm is prohibited. This would include a school, post office, federal building and state building or any other area where local ordinances prohibit discharging a firearm.

Who Can Carry Loaded Firearms In Public?

There are exceptions to the prohibitions against carrying a loaded firearm in public. The following individuals are exempt from this code section:

  • California peace officers, active or honorably retired6
  • Peace officers from another state who are carrying out official activities here
  • Federal law enforcement officers or agents
  • Anyone authorized or summoned by any of these officers to assist in making an arrest or in preserving the peace
  • Members of the armed forces7
  • Animal control persons8
  • Zookeepers9
  • Harbor police10
  • Target shooters11
  • Hunters12
  • If you have a concealed weapons permit
  • Security officers13
  • Private investigators14
  • Lawful business owners in the place of business15
  • Private property owners on their property

For some of these individuals, carrying a loaded firearm must be under certain conditions and if they have had certain training. Hunters may carry loaded firearms to a designated hunting location if they are in a locked container. Target shooters may only have loaded guns at the target range area.

For private property and business owners, the loaded firearms may only be on the premises and not be carried on their person unless for self-defense purposes.

If you are an honorably retired federal officer or agent, such as from the FBI, ATF or DEA, then you may carry a loaded firearm so long as you are authorized by the sheriff in the county where you live.

Legal Defenses

There are any number of defenses to this code section violation based on knowledge of the defendant and if the characteristics of the weapon are within the law’s definition.

You Were Unaware Of The Firearms Presence

There are situations where you may not have known that a firearm was even in your possession. This might be the case where a package containing a firearm is mistakenly delivered to you, or you pick up a briefcase or bag identical to your own but belongs to someone else and there is a loaded firearm in it16.

You Were Not In A Public Place Or Prohibited Area

You have to be carrying the loaded firearm in a public place or street in an incorporated area or in a prohibited area in an unincorporated location. While most prosecutors are aware of this element of the offense and take pains to make sure the arresting officers are aware of it, a young DA or an inexperienced or unprepared police officer may well be unaware of this element. If the officer does not know if you were arrested with a loaded firearm on a public street in an incorporated area or if you were in a prohibited area in an unincorporated location, then the court should dismiss all charges.

Self-Defense

Self-defense is available to exonerate many defendants in certain situations where they might otherwise be breaking the law. Regarding possession of a loaded firearm, you must have possessed a license or permit to own the gun or not be a felon or you are subject to arrest even if self-defense applies.

You may raise the defense under the following circumstances:

  1. You have a reasonable belief that you or someone else, or the property of anyone,
  2. Is in imminent or immediate danger and,
  3. You need to carry a weapon or firearm to protect yourself or other person or property from such threats or danger

Another circumstance is:

  1. There exists a restraining order
  2. And you are under the reasonable belief that you are in imminent or grave danger
  3. By the person who is the subject of the existing restraining order who poses the imminent or grave threat to your life or safety

Your belief must be a reasonable one or be one where a jury or trier of fact would interpret as how a reasonable person would act or believe under similar circumstances.

Violation of Search And Siezure Laws

No law enforcement officer can search you, your car, place of business or residence without a valid search warrant or without probable cause. They can search your person or the immediate area where you are if you are lawfully arrested. Pat-down searches are also legal under certain circumstances.

Even if your loaded firearm is seized pursuant to a search warrant, the search by the officers or agents cannot have exceeded the scope of the warrant. Firearms or any other incriminating evidence seized without probable cause or which exceeded the scope of a search warrant are not admissible evidence in a court of law.

Penalties & Sentencing

Generally, absent certain other circumstances of situations under which you would unlawfully possess or carry a loaded firearm, violation of PC 25850 is a misdemeanor.

Wobbler

In many instances, there are certain aggravating circumstances that, if present, renders a violation of PC 25850 as a “wobbler” offense so that the DA has discretion to charge you with either a misdemeanor or a felony. These circumstances include:

  • You are not the owner of the firearm or it was not registered with the Department of Justice17
  • You have a prior misdemeanor conviction against another person or property
  • You have a prior conviction concerning narcotics or for a dangerous drug offense18
PenaltiesMisdemeanorFelony
FineUp to $1,000Up to $1,00o if a “wobbler,” Up to $10,000 for a straight felony
ProbationSummary ProbationFormal probation
Jail or PrisonUp to 1 year in county jail16 Months, 2 or 3 years in county jail
Felony

You can also be convicted of a felony under circumstances where the charge is a straight felony and not a wobbler:

  1. You have a prior felony conviction
  2. You have a prior conviction for a gun crime19
  3. The firearm was stolen and you knew or reasonably should have known it was stolen20
  4. You were not in lawful possession of the firearm21
  5. You are an active criminal street gang member participant22

Expungement For Penal Code 25850

  • Find Out if You Are Eligible To Have Your Record Expunged
  • Stop Worrying About Employer Background Checks
  • Start Worrying About Landlord Background Checks

Immigration Consequences

Many gun crimes are considered crimes of moral turpitude or otherwise deportable offenses if you are not a US citizen, especially if you are convicted of a felony, which carries a jail sentence of one year or longer. A felony can be charged if you did not lawfully own the firearm or you come under any of the other aggravating circumstances listed herein, exposing you to serious immigration consequences.

What You Should Do Now

If you have been arrested for carrying a loaded firearm in public and would like to learn more about what attorneys charge.

If you want to understand why its important to have an attorney represent you.

If you are ready to discuss a pending firearms case with an attorney contact the Aizman Law Firm at 818-351-9555 for a free confidential consultation.

Get Legal Help

Request A Free Consultation 818-351-9555 

Footnotes

  1. People v. Knight (2004) 121 Cal.App.4th 1568, 1575 [18 Cal.Rptr.3d 384 []
  2. California Penal Code 25850(a) – A person is guilty of carrying a loaded firearm when the person carries a loaded firearm on the person or in a vehicle while in any public place or on any public street in an incorporated city or in any public place or on any public street in a prohibited area of unincorporated territory. []
  3. “It is illegal for the driver of any motor vehicle, or the owner of any motor vehicle irrespective of whether the owner is occupying the vehicle to knowingly permit any person to carry a loaded firearm into the vehicle in violation of Penal Code section 25850,” California Department of Justice: Firearms Laws Summary. []
  4. Loaded Firearm “Under the commonly understood meaning of the term ‘loaded,’ a firearm is ‘loaded’ when a shell or cartridge has been placed into a position from which it can be fired; the shotgun is not ‘loaded’ if the shell or cartridge is stored elsewhere and not yet placed in a firing position.” [CALCRIM 2530] People v. Clark (1996) 45 Cal.App.4th 1147, 1153 [53 Cal.Rptr.2d 99]. []
  5. People v. Taylor (1984) 151 Cal.App.3d 432, 437 [199 Cal.Rptr. 6] []
  6. Pen. Code Section 12031(b. []
  7. California Penal Code 26000 – Section 25850 does not apply to members of the military forces of this state or of the United States engaged in the performance of their duties. []
  8. California Penal Code 26025 – Section 25850 does not apply to any of the following who have completed a regular course in firearms training approved by the Commission on Peace Officer Standards and Training:(b) Animal control officers or zookeepers, regularly compensated in that capacity by a governmental agency, when carrying weapons while acting in the course and scope of their employment and when designated by a local ordinance or, if the governmental agency is not authorized to act by ordinance, by a resolution, either individually or by class, to carry the weapons. []
  9. California Penal Code 26025 – Section 25850 does not apply to any of the following who have completed a regular course in firearms training approved by the Commission on Peace Officer Standards and Training:(b) Animal control officers or zookeepers, regularly compensated in that capacity by a governmental agency, when carrying weapons while acting in the course and scope of their employment and when designated by a local ordinance or, if the governmental agency is not authorized to act by ordinance, by a resolution, either individually or by class, to carry the weapons. []
  10. California Penal Code Section 25850 does not apply to any of the following who have completed a regular course in firearms training approved by the Commission on Peace Officer Standards and Training:(d) Harbor police officers designated pursuant to Section 663.5 of the Harbors and Navigation Code. []
  11. California Penal Code 26005(a) –  Section 25850 does not apply to the following: (a) Persons who are using target ranges for the purpose of practice shooting with a firearm. []
  12. California Penal Code 26005 –  Section 2585(b) does not apply to the following: Members of shooting clubs while hunting on the premises of those clubs; Additionally California Penal Code 26040: Nothing in Section 25850 shall prevent any person from carrying a loaded firearm in an area within an incorporated city while engaged in hunting, provided that the hunting at that place and time is not prohibited by the city council. []
  13. California Penal Code 26030(a) Section 25850 does not apply to any of the following who have been issued a certificate pursuant to subdivision (d):Pen. Code Section 26030(a)(9) Uniformed security guards or night watch persons employed by any public agency, while acting within the scope and course of their employment. []
  14. California Penaa Code 26030(a) Section 25850 does not apply to any of the following who have been issued a certificate pursuant to subdivision 26030(d):(4) Private investigators licensed pursuant to Chapter 11.3 (commencing with Section 7512) of Division 3 of the Business and Professions Code, while acting within the course and scope of their employment. [Penal Code 26030(d)(5) Uniformed employees of private investigators licensed pursuant to Chapter 11.3 (commencing with Section 7512) of Division 3 of the Business and Professions Code, while acting within the course and scope of their employment.] []
  15. California Penal Code 26035: Nothing in Section 25850 shall prevent any person engaged in any lawful business, including a nonprofit organization, or any officer, employee, or agent authorized by that person for lawful purposes connected with that business, from having a loaded firearm within the person’s place of business, or any person in lawful possession of private property from having a loaded firearm on that property. []
  16. People v. Rubalcava (2000) 23 Cal.4th 322, 331–332 [96 Cal.Rptr.2d 735, 1 P.3d 52]; People v. Dillard (1984) 154 Cal.App.3d 261, 267 [201 Cal.Rptr. 136]. []
  17. California Penal Code 25850(b)(6) – Where the person is not listed with the Department of Justice pursuant to Section 11106 as the registered owner of the handgun, by imprisonment pursuant to subdivision (h) of Section 1170, or by imprisonment in a county jail not to exceed one year, or by a fine not to exceed one thousand dollars ($1,000), or both that fine and imprisonment []
  18. California Penal Code 2585(b)(5) – Where the person has been convicted of a crime against a person or property, or of a narcotics or dangerous drug violation, by imprisonment pursuant to subdivision (h) of Section 1170, or by imprisonment in a county jail not to exceed one year, by a fine not to exceed one thousand dollars ($1,000), or by both that imprisonment and fine. []
  19. Factors in Pen. Code, §§ 25400(c), 25850(c) Sentencing Factors, Not Elements. People v. Hall (1998) 67 Cal.App.4th 128, 135 [79 Cal.Rptr.2d 690] []
  20. Factors. Pen. Code, §§ 25400(c)(2), 25850(c)(2). Sentencing Factors, Not Elements People v. Hall (1998) 67 Cal.App.4th 128, 135 [79 Cal.Rptr.2d 690]. []
  21. Factors. Pen. Code, §§ 25400(c)(4), 25850(c)(4). []
  22. Factors. Pen. Code, §§ 25400(c)(3), 25850(c)(3). Sentencing Factors, Not Elements People v. Hall (1998) 67 Cal.App.4th 128, 135 [79 Cal.Rptr.2d 690] []

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