By: Diana Aizman
It is illegal in California to carry a loaded firearm in public or on a public street in an incorporated area or in a vehicle unless you are an exempt person or under certain circumstances pursuant to Penal Code Section 25850. 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 car.
Whether you are guilty of this code section depends on whether your actions or the weapon fits certain definitions.
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-47or 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.
A loaded firearm has certain characteristics under this law. The definition consists of:
- An unexpended cartridge or shell, that is,
- In a case holding a charge of powder with a bullet or shot, that is,
- In or attached to the firearm such as in the firing chamber or magazine or clip attached to the firearm, OR,
- 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 characteristics.
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.
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.
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.
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 retired
- 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 forces
- Animal control persons
- Harbor police
- Target shooters
- If you have a concealed weapons permit
- Security officers
- Private investigators
- Lawful business owners in the place of business
- 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.
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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 Firearm’s 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 it.
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 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:
- You have a reasonable belief that you or someone else, or the property of anyone,
- Is in imminent or immediate danger and,
- You need to carry a weapon or firearm to protect yourself or other person or property from such threats or danger
Another circumstance is:
- There exists a restraining order
- And you are under the reasonable belief that you are in imminent or grave danger
- 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 Seizure 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.
Generally, absent certain other circumstances of situations under which you would unlawfully possess or carry a loaded firearm, violation of PC 25850is a misdemeanor. Penalties include:
- A maximum of one year in county jail
- And/or a fine up to $1000
- And/or summary probation
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 Justice
- You have a prior misdemeanor conviction against another person or property
- You have a prior conviction concerning narcotics or for a dangerous drug offense
If a wobbler and you are convicted of a felony, you face:
- 16 months, 2 or 3 years in county jail
- A fine up to $1000
The penalties if convicted as a misdemeanor are the up to one year in county jail and/or a fine up to $1000.
You can also be convicted of a felony under circumstances where the charge is as a straight felony and not a wobbler:
- You have a prior felony conviction
- You have a prior conviction for a gun crime
- The firearm was stolen and you knew or reasonably should have known it was stolen
- You were not in lawful possession of the firearm
- You are an active criminal street gang member participant
If any of these circumstances are not proved, then you may only be convicted of a misdemeanor under PC 25850.
If convicted as a felony, you face:
- Up to one year or 16 months, 2 or 3 years in county jail
- And/or a fine up to $10,000
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.
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.