California: Guns Rights and Wrongs

So you are thinking about purchasing a gun? It sounds so simple right? You’ll go to the gun shop, pick out a gun and take it home. That’s it right? After all, it is your right to bear arms under the 2nd Amendment…. Not so fast! This isn’t the Wild West anymore. There are laws and regulations that one must follow to purchase, obtain and maintain a firearm. The owner of a firearm is responsible for knowing all the federal, state and local laws regarding ownership. Ignorance of the law is not a defense. Take the time to read and understand what responsibilities come with purchasing and owning a firearm, it is a big responsibility. How you handle your firearm can mean life or death of the people around you. So here is what you must know before you purchase your first firearm. Happy hunting.
 
So, what steps must you follow to purchase your firearm?
 
Sales and Purchase
 
First, only Licensed California Firearms Dealers who possess COE (Certificate of Eligibility) can engage in retail sales of firearms. The purchaser must have a DROS (Dealer Record of Sale) and must provide it to the dealer, who then submits it to the DOJ(Department of Justice). There is a 10 day mandatory waiting period before the gun can be delivered to the purchaser. During the 10 day period, the DOJ will run a background check to make sure the purchaser has no prohibitions on possessing firearms. The purchaser must have a valid ID issued by California DMV, and must be a minimum of 18 years old for a long gun, and 21 years for a hand gun. Therefore, it is illegal for any person who is not licensed to sell fire arms to sell or transfer a firearm to a non-licensed purchaser.
 
The purchaser must show proof-of-residence, have a valid Handgun Safety Certificate, must successfully perform a safe handling demonstration with the handgun being purchased or acquired, and must purchase a firearms safety device. A firearms dealer can only sell a handgun to the public if it is of a make and model that has passed required safety and functionality tests and is listed on the DOJ’s official roster of handguns certified for sale in California. The purchaser can only purchase one hand gun per 30 days.
 
So now you have purchased your firearm. Where can you carry you firearm(i.e. handgun)?
 
Carrying a Concealed Handgun Without a License on One’s Person or in a Vehicle
 
It is illegal for any person to carry a handgun concealed upon his or her person or in a vehicle without a license (Penal Code Section 25400). A firearm locked in a motor vehicle’s trunk or in a locked container carried in the vehicle (other than the utility or glove compartment) is not considered concealed. Neither is a firearm carried within a locked container directly to or from a motor vehicle for any lawful purpose.
 
Exceptions: Licensed hunters or fishermen while engaged in hunting or fishing, or while going to or returning from the hunting expedition. Authorized employees while engaged in specified activities.
 
Licenses to Carry Concealed Weapons
 
A license to carry concealed handguns or other firearm can be granted by the sheriff of the county in which the applicant resides, or the Chief of that police department of the city in which the applicant resides. The applicant must have good moral character and good cause for a license must exist for the license to issue.
Firearms Aboard Common Carriers, the Home, Business or at the Campsite
 
Federal and state laws prohibit a person from carrying any firearm or ammunition aboard any commercial passenger airplane. The same applies to trains, ships, and buses.
However, any person who is not prohibited from possessing firearms can possess firearms in the home, business or at the campsite.
In what situations can I use my firearm?
 
The Use of Lethal Force in Self-Defense
 
Permissible Use of Lethal Force in Defense of Life and Body
 
The killing of one person by another may be justifiable when necessary to resist the attempt to commit a forcible and life-threatening crime, provided that a reasonable person in the same or similar situation would believe that (a) the person killed intended to commit a forcible and life-threatening crime; (b) there was imminent danger of such crime being accomplished; and (c) the person acted under the belief that such force was necessary to save him or herself or another from death or a forcible and life-threatening crime (Penal Code Section 197).
Limitations on the Use of Force in Self-Defense
 
The right of self-defense ceases when there is no further danger from an assailant. The right of self-defense is not initially available to a person who assaults another. However, if such person attempts to stop combat and informs the adversary of his desire for peace but the opponent continues the fight, the right of self-defense returns.
What am I not allowed to do with my firearm?
 
Loaded Firearms in Public
 
It is illegal to carry a loaded firearm on one’s person or in a vehicle while in any public place, on any public street, or in any place where it is unlawful to discharge a firearm. (Pen. Code, § 25850, subd. (a).)
 
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, or Fish and Game Code section 2006. (Pen. Code, § 26100.)
Obliteration or Alteration of Firearm Identification
 
It is illegal for any person to obliterate or alter the identification marks placed on any firearm including the make, model, serial number or any distinguishing mark lawfully assigned by the owner or by the DOJ. (Pen. Code, § 23900.)
 
It is illegal for any person to buy, sell or possess a firearm knowing its identification has been obliterated or altered. (Pen. Code, § 23920.)
Openly Carrying an Unloaded Handgun
 
It is generally illegal for any person to carry upon his or her person or in a vehicle, an exposed and unloaded handgun while in or on a public place or public street in an incorporated or unincorporated city or city and county (Pen. Code, § 26350.)
 
Unauthorized Possession of a Firearm on School Grounds
 
It is illegal for any unauthorized person to possess or bring a firearm upon the grounds of, or into, any public school, including the campuses of the University of California, California State University campuses, California community colleges, any private school or private university or college. (Pen. Code, § 626.9.)
Unauthorized Possession of a Firearm in a Courtroom, the State Capitol, etc.
 
It is illegal for any unauthorized person to bring or possess any firearm within a courtroom, courthouse, court building or at any meeting required to be open to the public. (Pen. Code, § 171b.)
 
It is illegal for any unauthorized person to bring or possess a loaded firearm within (including upon the grounds of) the State Capitol, any legislative office (Pen. Code, §§ 171c, 171d, 171e.).
 
Drawing or Exhibiting a Firearm
 
If another person is present, it is illegal for any person, except in self-defense, to draw or exhibit a loaded or unloaded firearm in a rude, angry or threatening manner or in any manner use a firearm in a fight or quarrel. (Pen. Code, § 417.)
 
Threatening Acts with a Firearm on a Public Street or Highway
 
It is illegal for any person to draw or exhibit a loaded or unloaded firearm in a threatening manner against an occupant of a motor vehicle which is on a public street or highway in such a way that would cause a reasonable person apprehension or fear of bodily harm. (Pen. Code, § 417.3.)
 
Discharge of a Firearm in a Grossly Negligent Manner
 
It is illegal for any person to willfully discharge a firearm in a grossly negligent manner which could result in injury or death to a person. (Pen. Code, § 246.3.)
Discharge of a Firearm at an Inhabited/Occupied Dwelling, Building, Vehicle, Aircraft
 
It is illegal for any person to maliciously and willfully discharge a firearm at an inhabited dwelling, house, occupied building, occupied motor vehicle, occupied aircraft, inhabited house car or inhabited camper. (Pen. Code, § 246.)
 
Discharge of a Firearm at an Unoccupied Aircraft, Motor Vehicle, or Uninhabited Building or Dwelling
 
It is illegal for any person to willfully and maliciously discharge a firearm at an unoccupied aircraft. It is illegal for any person to discharge a firearm at an unoccupied motor vehicle, building or dwelling. This does not apply to an abandoned vehicle, an unoccupied motor vehicle or uninhabited building or dwelling with permission of the owner and if otherwise lawful. (Pen. Code, § 247.)
 
Discharge of a Firearm from a Motor Vehicle
 
It is illegal for any person to willfully and maliciously discharge a firearm from a motor vehicle. A driver or owner of a vehicle who allows any person to discharge a firearm from the vehicle may be punished by up to three years imprisonment in state prison. (Pen. Code, § 26100.)
 
Can I be liable for acts of other people who gain access to my firearm?
 
Criminal Storage
 
“Criminal storage of firearm of the first degree” – Keeping any loaded firearm within any premises that are under your custody or control and you know or reasonably should know that a child (any person under 18) is likely to gain access to the firearm without the permission of the child’s parent or legal guardian and the child obtains access to the firearm and thereby causes death or great bodily injury to himself, herself, or any other person. (Pen. Code, § 25100, subd. (a).)
 
“Criminal storage of firearm of the second degree” – Keeping any loaded firearm within any premises that are under your custody or control and you know or reasonably should know that a child (any person under 18) is likely to gain access to the firearm without the permission of the child’s parent or legal guardian and the child obtains access to the firearm and thereby causes injury, other than great bodily injury, to himself, herself, or any other person, or carries the firearm either to a public place or in violation of Penal Code section 417. (Pen. Code, § 25100, subd. (b).
 
Neither of the criminal storage offenses (first degree, second degree) shall apply whenever the firearm is kept in a locked container or locked with a locking device that has rendered the firearm inoperable. (Pen. Code, § 25105.)
 
What about minors?
 
Sales, Transfers and Loans of Firearms to Minors
 
Generally, it is illegal to sell, loan or transfer any firearm to a person under 18 years of age, or to sell a handgun to a person under 21 years of age. (Pen. Code, § 27505.)
Possession of a Handgun or Live Ammunition by Minors
 
It is unlawful for a minor to possess a handgun or live ammunition unless one of the following circumstances exists:
 
The minor is accompanied by his or her parent or legal guardian and the minor is actively engaged in a lawful recreational sporting, ranching or hunting activity, or a motion picture, television or other entertainment event;
 
The minor is accompanied by a responsible adult and has prior written consent of his or her parent or legal guardian and is involved in one of the activities cited above; or
The minor is at least 16 years of age, has prior written consent of his or her parent or legal guardian, and the minor is involved in one of the activities cited above. (Pen. Code, §§ 29610-29655.)
 
Who cannot own firearms?
 
PERSONS INELIGIBLE TO POSSESS FIREARMS
 
The following persons are prohibited from possessing firearms (Pen. Code, §§ 29800-29825, 29900; Welf. & Inst. Code, §§ 8100, 8103.):
 
Lifetime Prohibitions
 
Any person convicted of any felony or any offense enumerated in Penal Code section 29905.
 
Any person convicted of an offense enumerated in Penal Code section 23515.
 
Any person with two or more convictions for violating Penal Code section 417, subdivision (a)(2).
 
Any person adjudicated to be a mentally disordered sex offender. (Welf. & Inst. Code, § 8103, subd. (a)(1).)
 
Any person found by a court to be mentally incompetent to stand trial or not guilty by reason of insanity of any crime, unless the court has made a finding of restoration of competence or sanity. (Welf. & Inst. Code, § 8103, subd. (b)(1), (c)(1), and (d)(1).)
 
10-Year Prohibitions
 
Any person convicted of a misdemeanor violation of the following: Penal Code sections 71, 76, 136.5, 140, 148 (d), 171b, 171c, 171d, 186.28, 240, 241, 242, 243, 244.5, 245, 245.5, 246, 246.3, 247, 273.5, 273.6, 417, 417.1, 417.2, 417.6, 422, 626.9, 646.9, 830.95(a), 17500, 17510(a), 25300, 25800, 27510, 27590(c), 30315, or 32625, and Welfare and Institutions Code sections 871.5, 1001.5, 8100, 8101, or 8103.
 
5-Year Prohibitions
 
Any person taken into custody as a danger to self or others, assessed, and admitted to a mental health facility under Welfare and Institutions Code sections 5150, 5151, 5152; or certified under Welfare and Institutions Code sections 5250, 5260, 5270.15.
 
Juvenile Prohibitions
 
Juveniles adjudged wards of the juvenile court are prohibited until they reach age 30 if they committed an offense listed in Welfare and Institutions Code section 707, subdivision (b).
 
Miscellaneous Prohibitions
 
Any person denied firearm possession as a condition of probation pursuant to Penal Code section 29900, subdivision (c).
 
Any person charged with a felony offense, pending resolution of the matter (18 U.S.C. § 922(g).)
 
Any person while he or she is either a voluntary patient in a mental health facility or under a gravely disabled conservatorship (due to a mental disorder or impairment by chronic alcoholism) and if he or she is found to be a danger to self or others (Welf. & Inst. Code, § 8103, subd. (e).)
 
Any person addicted to the use of narcotics (Pen. Code, § 29800, subd. (a).)
 
Any person who communicates a threat (against any reasonably identifiable victim) to a licensed psychotherapist which is subsequently reported to law enforcement, is prohibited for six months (Welf. & Inst. Code, § 8104, subd. (c).)
 
Any person who is subject to a protective order as defined in Family Code section 6218, Penal Code section 136.2, or a temporary restraining order issued pursuant to Code of Civil Procedure sections 527.6 or 527.8.
 
In Conclusion
 
I hope this information makes very clear that, with owning a gun, comes great responsibility. It is not to be taken lightly. The consequences for mistakes may mean jail or prison in some cases. Be sure you meet the requirements before you purchase your gun. Take the appropriate classes, and get required licenses. Failure to do so is a crime. My mentor, when I was Deputy Fresno District Attorney, taught me how to use a gun and also taught me gun safety. He also used to say; “Before you purchase your gun, be aware of what the law is. Once you purchase it, be aware of what you can and cannot do with it. And lastly, when you pull out your gun, be prepared to use it, as you never pull it out unless you intend to use it.”
If you need any legal advice regarding owning a firearm, or if you are a loved one is being charged with a crime involving a firearm, call us. We are able and ready to help.
 
–By: Philip Young Sik Cho
Law Offices of Jeffery Rubenstein
Associate Attorney

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