Celebrity Attorney Diana Aizman Providing Legal Analysis
It is illegal to openly carry a firearm, loaded or not, under Penal Code 26350, although this section refers to unloaded firearms1. There is a separate code section for loaded firearms under PC 258502
The elements of openly carrying an unloaded firearm are:
There are persons who are not in violation of the open carry code section:
- Persons with valid permits
- Active and honorably retired peace officers—PC 25900
- Hunters—PC 26040
- Target range shooters—PC 26005
- Military personnel—PC 26000
- Licensed firearms manufacturers and dealers—PC 26700
- At gun shows—PC 12071
- Employees of common carriers—PC 25630
- Pawnshop owners—PC 12071
- Employees at gun repair shops—PC 25615
- Persons involved in entertainment productions
Be aware that though you may be permitted to openly carry a firearm under these circumstances, there may be certain conditions where you may violate California Penal Code Section 26350.
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To obtain a carry permit, you must meet the following:
- You are of good moral character
- You can demonstrate good cause because you or a member of your immediate family is in immediate danger
- You meet residency requirements
- You have successfully completed an approved firearms safety or training course
You do have some valid defenses to violating this code section:
- You possessed a valid permit for carrying a firearm capable of being concealed
- You were on a firing range
- You fit any of the other conditions for which certain persons may carry a firearm
- You were carrying the firearm in a locked container—PC 25610
- You were not on a public street or public place ( an area readily accessible to the public) such as a gated community or residence
- You were not in a prohibited area in an unincorporated area
- The gun was too large or not capable of being concealed (subject to other firearms offenses)
- Illegal search and seizure
Regarding your 4th Amendment right to be secure from illegal searches and seizures, the police must first have probable cause to stop or detain you. If so and you have a firearm in open view, you may be arrested and charged5.
But the officer has no probable cause to search you or your vehicle for a traffic violation such as speeding or making an illegal turn absent other circumstances. You can be searched incident to an arrest or you can consent to a search. Otherwise, you or your car or residence or business may only be searched pursuant to a search warrant and only within the dictates of the warrant6.
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Violation of PC 26350 is a misdemeanor with a penalty of:
- Up to one year in county jail
- And/or a fine up to $1000
You face probably jail time and a fine if the firearm was not registered or owned by you and you were in possession of unexpended and dischargeable ammunition.
Enhancements for Carrying a Concealed Firearm
If you are arrested for carrying a concealed firearm like a pistol or revolver, you face possible felony charges should you fit within any of the following categories7:
- You are a convicted felon—PC 29800
- You committed a prior misdemeanor offense against a person or property—PC 29800
- You were convicted of a drug or dangerous narcotic offense—PC 29800
- You knowingly possessed a stolen firearm or should reasonably have known it was stolen
- You are a gang member or an active participant
- You were convicted of a previous firearm offense
- You are prohibited from owning or possessing a firearm under PC 29900 for committing or attempting to commit a violent offense
- Any undocumented immigrants (federal)
- Persons under indictment for an offense that carries more than one year in jail (federal)
- Persons dishonorably discharged from the military (federal)
- You are under a restraining order for stalking or if the court otherwise prohibits you
- You are mentally ill
Violation of PC 29800 is a felony. A court may impose:
- 16 months, 2 or 3 years in county jail
- And/or a fine up to $10,000
- Forfeiture of the weapon
- Revocation of gun rights
- Deportation if an undocumented alien
Expungement is a form of post-conviction relief that can relieve you of the ignominy of a criminal conviction and the barriers that many experience to living a normal and productive life. Misdemeanors and many felony offenses qualify for expungement if you did not serve any time in state prison. With an expungement order, your conviction record is no longer accessible to the public. Expungement relief is found under Penal Code Section 1203.4.
Anyone with a criminal conviction should seek an expungement or other post-conviction relief if they qualify. Although a misdemeanor conviction does not bar you from seeking public benefits in most instances or have the severe repercussions of a felony, it can be a factor that landlords and employers may use to deny you employment or housing, especially since a violation under PC 26350 is a gun crime.
Certain persons who are prohibited from possessing a firearm because of prior felony or certain misdemeanor convictions or other circumstances enumerated herein may be charged with a felony though you may not be sentenced to state prison.
If you were convicted of a misdemeanor or a felony for which no state prison time was served, then an expungement attorney may petition the court for relief once you meet these other conditions:
- Completed all terms and conditions of your probation
- Have no felony criminal charges pending
- You did not violate any terms of your probation
You may not possess a firearm on your person or in your motor vehicle if:
- It is concealed on your person or vehicle
- You were aware of the firearm on your person or in your vehicle
- And the firearm was substantially concealed
This is a misdemeanor offense.
This code section is the same as PC 26350 except that the firearm is loaded. If you have it in your vehicle, it must be in your trunk or in a locked container. A glove compartment by itself is not a locked container.
It is loaded if there is unexpended ammunition in the firearm. The offense is a misdemeanor.
It is unlawful to draw, display or exhibit a firearm while in a public place or street if you do so in an angry, rude or threatening fashion. This includes using a firearm in a fight. This is a misdemeanor and carries from 3 months to one year in county jail and/or a fine up to $1000.
Possession of a Firearm on School Grounds—PC 626.9
You may not unlawfully possess a firearm on school grounds or within 1000 feet of a public or private elementary, middle or high school. If you are on school grounds, it is a felony carrying 2, 3 or 5 years in state prison.
If you are not on school grounds but within 1000 feet, it is a wobbler offense so that the DA may charge you with either a felony or a misdemeanor unless you meet one of the aggravating circumstances listed herein, which makes this a straight felony. A misdemeanor carries up to one year in county jail.
Ban on Generally Prohibited Weapons—PC 16590
You may not possess certain firearms at all. These include:
- Zip cars
- Large capacity magazines
- Wallet guns
- Cane guns
- Disguised firearms
- Multi-burst trust activators
- Undetectable firearms
- Short-barreled rifles or shotguns
This is a wobbler offense. If charged as a misdemeanor, you face up to one year in county jail. If a felony, you might receive 16 months, 2 or 3 years.
If you have been arrested and would like to learn more about how attorneys charge.
If you want to understand why its important to have an attorney represent you.
If you would like to discuss a pending case with an attorney contact the Aizman Law Firm at 818-351-9555 for a free confidential consultation.
- Peruta v. California (2017) 137 S.Ct 1995 [↩]
- California Penal Code Section 26350:(a)(1): A person is guilty of openly carrying an unloaded handgun when that person carries upon his or her person an exposed and unloaded handgun outside a vehicle while in or on any of the following: [↩]
- People v. Wharton (1992) 5 Cal.App.4th 72, 75 [↩]
- People v. Knight (2004) 121 Cal.App.4th 1568, 1575 [↩]
- Ker v.California (1963) 374 U.S. 23 [↩]
- People v. Amador (2000) 24 Cal.4th 387 [↩]
- People v. Hall (1998) 67 Cal.App.4th 128; People v. Jones (2001) 25 Cal.4th 98 109-110 [↩]