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Carrying a

Loaded Firearm in Public

Like many states, California has established several different rules regarding how firearms are used, carried, and transported. If you are found carrying a loaded firearm in a public place, you might be charged with a violation of Penal Code Section 25850.

How Can I Be Convicted of

Carrying a Loaded Firearm in Public?

Penal Code Section 25850 sets forth the facts that the prosecution must prove in order to convict someone of violating Penal Code Section 25850.

A person is guilty of unlawfully carrying a loaded firearm in public if they

-Knowingly

-Carry a loaded firearm

-On their person or in a vehicle

-In a public area

The government must prove that the defendant “knowingly” carried a firearm, but they do not necessarily need to prove that the defendant knew the gun was loaded. A “public area” is any area that is open and accessible to any person wishing to go there.

Several types of persons are exempt from this law, including

-Members of the US Armed forces

-Members of shooting clubs while on club premises

-People using target ranges for shooting practice

-Armored vehicle guards

-Persons with a “concealed carry” permit

-Honorably retired law enforcement (subject to sheriff approval)

-Peace officers (whether from California, out-of-state, or federal)

Defenses to a charge of

Carrying a Loaded Firearm in a Public Place

If you are caught carrying a loaded firearm in public and you do not belong to any of the above categories of persons, then you can anticipate being charged with a violation of Penal Code Section 25850. Fortunately, there are several defenses available to such a charge

You did not know that the gun was there

The law is not meant to punish honest mistakes or accidents. As such, if you did not know that you were, in fact, carrying a concealed firearm at the time you were stopped, then you should not be convicted of violating the “concealed carry” laws. This argument usually works best in situations where the defendant is charged with carrying a weapon inside a vehicle. An example is where someone accidentally leaves their gun concealed inside their car, and then lends the car to a friend. The friend might not have realized that the owner’s gun was inside when he borrowed the car, and may not have noticed it until police discover the gun during a traffic stop. In that case, if the friend did not know that the gun was there, then they should be found “not guilty” of a charge that he unlawfully carried a firearm in public.

 

There might even be some cases where a person does not realize that they are personally carrying a loaded gun on their person. Consider a situation where the defendant attends a party. He brings a backpack with him, and passes out after consuming drugs and alcoholic beverages that were available. While asleep, another partygoer sneaks their gun into the defendant’s backpack, hoping to conceal it from authorities. The defendant might not know that the gun is concealed inside his backpack while walking home after awakening, and so should probably be found “not guilty” at trial if the evidence shows this.

You acted in self-defense

Conduct ordinarily punishable under the Penal Code or other sections of California law is justifiable when done in self-defense. To succeed in a self-defense claim, the defendant must show that their actions were done while they reasonably feared immediate or imminent injury, and that their conduct was an otherwise proportionate response to that threat.  Because firearms are so dangerous, a “self defense” claim in such a case will probably succeed only where the defendant was faced with the threat of death or serious bodily injury, because a gunshot is not a “proportionate” response to other, lesser threats. Also, a claim of self-defense will only work in a firearms case if the defendant believed that the threat to their life was “imminent.” And finally, the defendant’s belief must be objectively “reasonable.” For these reasons, a self-defense claim on a charge of violating Penal Code Section 25850 can be problematic, because self-defense will only cover the defendant for that specific time period when a threat to their life is immediate-carrying a firearm in public for any other time is still a violation. Be sure to speak carefully with your attorney on the merits of a possible self-defense claim in a firearms case-the timing of the conduct and police investigation could be of great importance here.

Illegal search and seizure

While not technically a “defense”, a charge of carrying a loaded firearm in public could be dismissed if the court determines that the police did something improper in their investigation. More specifically, if police search or seize you illegally and recover a gun as a result, then a judge might order the gun “suppressed”, or “thrown out” of your case. With no firearm to present against you as evidence, the prosecution’s case against you might collapse.

 

Police need “reasonable suspicion” of criminal activity in order to stop and frisk a pedestrian or conduct a vehicle stop. This is a low standard, but it requires more than a mere “hunch.” Police must be able to specifically articulate a reasonable basis to believe that you were engaged in some criminal activity before stopping you. If, for example, you are stopped based on insufficient information like a vague, anonymous tip, or for no reason at all, then the court might rule that you were stopped illegally, and so any evidence obtained-such as a gun or any other contraband-would be suppressed.

 

To conduct a full “search” or to arrest you, police need “probable cause” that you had committed a crime or that evidence of a crime would be found in the area searched. This is also a low standard, but it is more exacting than probable cause. There are some cases where courts have found that police had adequate reasonable suspicion to justify a “stop”, but that a subsequent arrest and search were unsupported by probable cause. In those cases, evidence from the stop is probably admissible but anything gained from the arrest is still subject to suppression.

Is Carrying a Loaded

Firearm in Public a Felony or a Misdemeanor?

It depends. Penal Code Section 25850 contains several sub-sections, each of which can affect the severity of your case.

On its own, a charge of carrying a loaded firearm in public is a misdemeanor.

However, depending on the facts of your case and your prior record, your case could be charged as a felony instead.

Some versions of Penal Code Section 25850 are “wobblers”, which means that it can be charged as a misdemeanor or a felony in some circumstances. Carrying a loaded firearm in public is a “wobbler” when

  • If you have been previously convicted of a misdemeanor drug offense or for a misdemeanor crime against a person or property OR
  • If you are not the firearm’s registered owner

In those circumstances, you could be charged with either a misdemeanor or a felony based on an arrest for carrying a loaded firearm in public.

In some other cases, carrying a loaded firearm in public is a “straight felony”, meaning it cannot be charged as a misdemeanor and must always be charged as a felony.

Carrying a loaded firearm in public is a felony when:

  • The defendant has been previously convicted of any felony
  • The defendant has been previously convicted of certain firearms offenses
  • The firearm is stolen and the defendant either knows or should know that it is stolen
  • The defendant is an active participant in a criminal street gang
  • The defendant is not in lawful possession of the firearm
  • The defendant is prohibited from owning or possessing a firearm

What is the possible punishment for carrying a loaded firearm in public?

Punishment for carrying a loaded firearm in public differs, depending on whether your case is charged as a felony or as a misdemeanor.

As a FELONY, carrying a loaded firearm in public is punishable by incarceration for sixteen (16) months, two (2) years, or three (3) years, plus a fine of up to $10,000.

As a MISDEMEANOR, carrying a loaded firearm in public is punishable by incarceration for up to one (1) year and $1000 in fines.

Whether your case results in a misdemeanor or felony conviction, you may be eligible for probation in lieu of the above incarceration periods. However, the conditions of probation could include some incarceration in the county jail. If you are facing a sentence for carrying a loaded firearm in public, you should be sure to work closely with your attorney to see if a probationary sentence can be achieved that minimizes any jail time for your case.

Is there a “mandatory minimum” for violation of California’s “loaded firearm in public” laws?

Yes and no. Penal Code Section 25850 sets forth a “mandatory” period of three (3) months incarceration for some defendants who are found guilty of illegally carrying a loaded firearm in public. However, this only applies when the defendant was previously convicted of certain firearms offenses in the past.

Furthermore, the court is still free to impose a sentence less than three (3) months of incarceration. But to do so, it must first determine that the defendant’s case is “unusual” such that “the interests of justice would best be served” without imposing the three-month mandatory period.

If you are concerned that your concealed carry case falls into any of the above categories and you are worried that you might be “in the crosshairs” for a three month mandatory jail sentence, consult your attorney closely on this issue. A well-prepared argument at sentencing can help convince the court that a mandatory jail period is not appropriate for your case.