You have a right to your firearm. However, the law places certain prohibitions on where you can and cannot take those firearms, and what those conditions for carry are. There are also times when the line between legal carry and illegal carry may become blurred. Even if your carry was the result of a misunderstanding, you will likely face an arrest or, at the very least, having to forfeit your firearm.

San Diego Lawyer for Carrying a Loaded Firearm in Public

Attorney Michael Cindrich has decades of experience protecting clients in second-amendment cases, including in cases when firearms are brought into areas where they should not be. The Law Offices of Michael E. Cindrich serve San Diego County, including the cities of Chula Vista, Oceanside, Escondido, Carlsbad, El Cajon, Vista, San Marcos, Encinitas, National City and La Mesa, and of course San Diego proper.

Contact Michael Cindrich right away for a free consultation at (619) 262-2500.

Overview of Possession of a Firearm in a Prohibited Place

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Crime of Carrying a Loaded Firearm in Public Under California Law

Possession in a prohibited place typically falls under California Penal Code Section 25850, which makes it illegal to carry a loaded firearm in public areas, including streets, parks, and other prohibited locations within incorporated cities or designated unincorporated areas. The law applies whether the firearm is carried on a person or inside a vehicle.

Additionally, Penal Code Section 25400 addresses the related offense of carrying a concealed firearm, which can overlap with Section 25850 in certain cases. Both laws classify the offense as a misdemeanor or a felony depending on aggravating factors, such as prior convictions, gang affiliation, or if the firearm was stolen.

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Public Places and Prohibited Areas

Public Place: A “public place” includes streets, parks, and other areas accessible to the general public. Courts may take judicial notice of whether a particular location qualifies as a public place.

Prohibited Area: A prohibited area typically refers to locations where firearm possession is restricted by local ordinances or state law, such as schools or government buildings.

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Key Elements in Firearm Cases

To convict someone under Penal Code Section 25850, the prosecution must prove several elements beyond a reasonable doubt. According to CALCRIM No. 2530, the jury must consider:

  1. Whether the defendant knowingly carried a loaded firearm.
  2. Whether the firearm was carried on the person or in a vehicle.
  3. Whether the defendant was in a public place or a prohibited area at the time.

Additional sentencing factors outlined in CALCRIM Nos. 2540–2546 may also require consideration, such as whether:

  • The firearm was stolen, and the defendant knew or should have known this.
  • The defendant was an active participant in a gang.
  • The defendant was prohibited from possessing firearms under other laws.

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Penalties for Carrying a Loaded Firearm in Public

The penalties for possession in a prohibited place under Penal Code Section 25850 vary depending on the presence of aggravating factors.

In cases where no aggravating circumstances exist, the offense is typically charged as a misdemeanor, punishable by up to one year in county jail, fines up to $1,000, or both.

Felony convictions carry sentences of up to three years in state prison. Additionally, felony convictions often result in a lifetime ban on firearm ownership and other collateral consequences, such as reduced employment opportunities and challenges in obtaining professional licenses.

Other aggravating factors, such as the conviction status of the offender or if the possession of the firearm led to other crimes like assault or mayhem, can elevate the possession of the firearm to a higher-degree felony.

The following are a few examples of how a person could be charged with possession of a firearm in a prohibited place:

  1. Misdemeanor: A person carries a loaded firearm in a public park without a concealed carry permit. If the firearm is legally owned and there are no aggravating factors, this would likely be charged as a misdemeanor.
  2. Felony: A defendant is stopped in a vehicle with a stolen loaded handgun, knowing it was stolen. Under Penal Code Section 25850(c)(2), this would likely be charged as a felony due to the aggravating factor of possessing a stolen firearm.
  3. Prohibited Area: Someone carries a loaded firearm onto school property, violating both Penal Code Section 25850 and local restrictions. Depending on intent and circumstances, this could result in either misdemeanor or felony charges.

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Defenses to Carrying a Loaded Firearm in Public

The Firearm Was Discovered Through an Illegal Search and Seizure

The Fourth Amendment protects individuals from unlawful searches and seizures. If law enforcement discovered the firearm without a valid warrant, probable cause, or your consent, the evidence may be inadmissible in court. Demonstrating that your constitutional rights were violated can lead to dismissal of the charges.

The Defendant Was Exempt Under the Law

California law provides exemptions for certain individuals, such as peace officers or those with valid concealed carry permits. If you qualify under one of these exemptions and can demonstrate your legal right to carry the firearm, you may avoid prosecution.

Carrying the Firearm Was Justified by Self-Defense

In rare cases, carrying a loaded firearm may be justified if it was necessary to prevent imminent harm to yourself or others. This defense often requires demonstrating that no reasonable alternatives to carrying the weapon existed at the time.

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Carrying a Loaded Firearm in Public FAQ

“Does it matter if I didn’t know the gun was loaded?”
While knowledge of the firearm’s presence is required, knowledge of its loaded status is generally not. It is possible that the court will instead seek to charge you with reckless behavior, rather than

“Can I be charged if the gun wasn’t mine?”
Yes. If the prosecution can prove you had control over or access to the firearm, you may still face charges.

“What happens if I refused to let an officer inspect the firearm?”
Refusing inspection under Section 25850(b) can provide probable cause for arrest, complicating your defense.

“Can I get my record cleared after a conviction?”
In some cases, misdemeanor convictions can be expunged. Felony convictions may be harder to expunge and may affect firearm rights permanently.

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Additional Resources

California Penal Code Section 25850 – California Penal Code Section 25850 criminalizes carrying a loaded firearm in public or prohibited areas. Readers can learn about the circumstances under which carrying a loaded firearm becomes a misdemeanor or felony and the potential consequences of a conviction.

2022 Federal Bipartisan Safer Communities Act – This resource from the California DOJ’s Office of Gun Violence Prevention explains the provisions of the 2022 Federal Bipartisan Safer Communities Act, including updates to firearm restrictions for domestic violence offenders and expanded federal background checks for younger buyers. It also highlights funding for crisis intervention and restrictions on straw purchases and gun trafficking.

Firearms Regulations – This page from the California Office of the Attorney General details the state’s firearms regulations, including ongoing and completed rulemaking activities. It provides access to updates on firearm-related laws, procedures for public participation in regulatory changes, and explanations of licensing and record-keeping requirements for firearm dealers and owners.

Location Restrictions in California – The Giffords Law Center outlines restrictions on where firearms may be carried in California. This resource explains the laws governing firearms in public spaces, state parks, and government buildings, as well as exceptions for concealed carry license holders and emergency self-defense situations. It also provides information on additional location-specific prohibitions.

California Gun Law Overview – The NRA Institute for Legislative Action provides an overview of California gun laws, covering firearm purchases, possession, and carry regulations. It includes summaries of specific restrictions, licensing requirements, and preemptive state laws that limit local government’s ability to pass additional firearm-related ordinances.

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Hire a Defense Attorney in San Diego for Carrying a Loaded Firearm in Public

The Law Offices of Michael E. Cindrich serve San Diego County, including the cities of Chula Vista, Oceanside, Escondido, Carlsbad, El Cajon, Vista, San Marcos, Encinitas, National City and La Mesa, and of course San Diego proper.

Contact Michael Cindrich right away for a free consultation at (619) 262-2500.