The statute in the state of California that makes it a criminal offense to openly carry an unloaded firearm in a public area is Penal Code 26350 PC.  In effect, this section does away with what previously had been a limited “open carry” law in California.  Before 2012, anyone legally permitted to own a gun was permitted to carry an unloaded handgun in public.

Known generally as the “open carry” exception to California’s gun laws, it was applicable as long as the gun was in plain sight and the person carrying it was not in a prohibited area.  Now, since Penal Code 26350 came into effect, the open carrying of both loaded and unloaded handguns in public is illegal.

Possible Penalties Connected to an Open Carry Charge

Generally, most violations are punishable by up to one year in county jail, or a fine of up to $1,000.

Carrying an unloaded handgun in public is a different crime from carrying a loaded firearm in public (25850 PC) and carrying a concealed firearm (25400 PC).

The exceptions to this law are for people who have a permit to carry a firearm under Penal Code 26150 or 26155 PC and those who carrying an unloaded handgun to, from, or within a car in a locked container (or in the trunk of the vehicle), for a lawful purpose.  Also, if you’re transporting an unloaded firearm that can’t be concealed, such as a long rifle or long shotgun, you’re exempt.

Best Legal Defenses to an Open Carry Charge

There are numerous strong legal defenses to charges of carrying an unloaded handgun in public.  A skillful California criminal defense attorney can make on your behalf.  Some of those defenses are:

• The defendant has a California firearm permit,
• The person never carried the gun in public,
• The accused was engaged in an activity specifically exempt from Penal Code 26350,
• Police misconduct, or
• The gun was recovered in an illegal search and seizure.

The Peruta Case and Constitutional Concerns

The constitutionality of California’s ban on open carry is shrouded in doubt.  In February 2014, in the case of Peruta v. San Diego County, the U.S. 9th Circuit Court of Appeals challenged the consideration that the Second Amendment right to carry firearms outside of one’s home cannot be denied to a person.   On appeal, a study of centuries of case law demonstrated that there was never a period in history where a court denied the state its right to prohibit concealed carry.

Among the California criminal defense attorneys at Spodek Law Group are former law enforcement and prosecutors.   We are well acquainted with California’s gun laws.  In this article, our California criminal defense attorneys will explain:

1.Legal definitions of the legislation on carrying an unloaded handgun in public in California.

2. Who is exempt from Penal Code 26350 Open Carry Law
3. Possible penalties for a carrying an unloaded handgun in public conviction
4. Best legal defenses to charges of openly carrying a handgun in violation of 26350 PC
5. Related California gun legislation
6. “Open carry” law proponents: constitutional concerns and arguments

After reading this article, if you would like more information, feel free to call us at Spodek Law Group.

1.Legal definitions of the legislation on carrying an unloaded handgun in public in California.

The law in Penal Code 26350 PC makes it illegal in California to openly carry an exposed and unloaded handgun on your body or inside a vehicle while in a public place or street.

Let’s have a closer look at some of these terms so you can get a clearer idea of their meaning:

Openly carry

California’s gun laws are rife with circular terminology.  Basically, a handgun is deemed to be “carried openly” if it is not concealed.  That said, courts have held that as long as a gun is at least partly concealed, you could be liable for carrying a concealed firearm. This is so even if the gun is clearly identifiable.   Both open carry and concealed carry are usually misdemeanors, carrying the same penalties.

Concealed carry can, under certain circumstances, be prosecuted as a felony.  If any of the following applies, the crime is changed as a felony.

• The accused was previously convicted of a misdemeanor crime against a person or property, or of a narcotics or dangerous drug crime.
• The individual in question has previously been convicted of a felony or any other California firearm offense.
• The firearm in question was stolen, and you knew or had reasonable cause to believe, that it was stolen.
• The defendant is an active participant in a criminal street gang.
• The defendant was not in lawful possession of the firearm.
• The accused is prohibited from owning or possessing a firearm under Penal Code 29800 PC, California’s felon with a firearm statute.
• The accused is prohibited from owning or possessing a firearm under Penal Code 29900 PC, for committing, or attempting to commit, a violent crime.

Handgun

The term handgun, for purposes of California 26350 PC, includes a pistol, a revolver, or another firearm capable of being concealed upon the person.

Further, the terms “firearm capable of being concealed upon the person,” “pistol,” and “revolver” can be defined as  any device, designed to be used as a weapon from which is expelled a projectile by the force of any explosion or other form of combustion and which has a barrel that is:

• shorter than 16 inches in length, or
• 16 inches or longer, but is designed to be interchanged with a barrel shorter than 16 inches in length.

By this definition, a short-barreled rifle or short-barreled shotgun fits this description.  Those could, in practice, be both a handgun under Penal Code 26350 and a “generally prohibited weapon” under Penal Code 16590.

The term “Public place or public street”

All of these can fit this term’s criteria:

• A public place or public street located in an incorporated or unincorporated city or county,
• A public street that is in a prohibited area of an unincorporated area of a county or city and county, or
• A public area in a prohibited area of a county or city and county.

Even though this law does not define “public place,” judges have held that it is not the same as public property.  A “public place” is any area reasonably accessible to the public without any barriers. Prohibited areas can include government offices, airports, schools, courthouses and post offices.

2. Who is exempt from Penal Code 26350 Open Carry Law
3. Individuals with California firearm carry permits – Penal Code 26150 or 26155
4. Persons holding valid permits to carry “a pistol, revolver, or other firearm capable of being concealed upon the person”
5. Those who have been issued a California “concealed carry permit” under Penal Code 26150 or 26155 PC

 People and situations that are legally exempted from Penal Code 26350

A number of people and situations are also immune from Penal Code 26350, subject to detailed restriction, including:

• active and honorably retired peace officers
• military personnel
• licensed firearms dealers and manufacturers
• persons practicing at target ranges
• permitted hunters
• employees of airlines
• firearm exhibitions (gun shows)
• repair shops where guns are customarily serviced
• pawnshops
• movies and other forms of entertainment rehearsals and productions

There are still numerous conditions and restrictions connected to these exemptions.  Therefore, consulting with a knowledgeable California attorney if you believe you qualify to carry an unloaded handgun in public is essential.

3. Possible penalties for a carrying an unloaded handgun in public conviction

Open carry of an unloaded gun is a misdemeanor offense.  Generally, violations are punishable by up to one year in county jail, or a fine of up to $1,000. That said, you could face both a jail sentence and a fine if you are also carrying unexpended, dischargeable ammunition and you are not the licensed owner of the gun.

On top of that, the above penalties apply to each unloaded gun you carry.

4. Best legal defenses to charges of openly carrying a handgun in violation of 26350 PC

The “valid California firearm permit” defense

Holders of California permits to carry “a firearm capable of being concealed on the person” are immune to prosecution under Penal Code 26350.

The “engaged in a specifically exempt activity” defense

If you come under one of the exemptions listed in the California Penal Code, and you meet all the conditions and restrictions, you cannot be prosecuted under Penal Code 26350.

The ”not a public place or on a public street” defense

If you weren’t in any of the three enumerated types of places, then you are not guilty of violating Penal Code 26350.

The “Your gun was not capable of being concealed on your person” defense

If your firearm had a fixed barrel longer than 16 inches, then it is not covered by PC 26350. Note that depending on the type of weapon and your reason for carrying it, you may still be guilty of violating another California firearm offense.

The “Police misconduct” defense

For victims of police misconduct, judges may dismiss charges.  If the case is allowed to proceed, a jury may very well find in your favor.

Police misconduct can include false information in police reports, fabricated testimonies, coerced confessions or any other civil rights violations.

The” illegal traffic stop” defense

Generally speaking, Fourth Amendment Rights will not be an issue when it comes to Penal Code 26350 because a search is normally not required for an officer to notice the open carrying of a handgun. Nevertheless, in a scenario where an officer spots a gun on your car seat during an illegal traffic stop, your Fourth Amendment rights could, nevertheless, have been violated.

For the police to legally stop you, they need to have a reasonable suspicion that you have violated the California Vehicle Code or some other legislation.  If not, the stop is illegal under California’s search and seizure laws and the weapon should be inadmissible as evidence.

5. Related California gun legislation

• Penal Code 29800 PC — California’s “felon with a firearm” statute
• Penal Code 25400 PC — California’s “carrying a concealed firearm” statute
• Penal Code 25850 PC — California’s “carrying a loaded firearm in public” statute
• Penal Code 626.9 PC — possession of a firearm on school grounds
• Penal Code 16590 PC — California’s law against “generally prohibited weapons”
• Penal Code 30600 PC — California’s law against assault weapons and rifles
• Penal Code 417 PC – California’s statute against brandishing a weapon or firearm

6. “Open carry” law proponents: constitutional concerns and arguments

The Unloaded Open Carry (UOC) movement started in 2004 and has since continued to build up momentum.  There are thousands of UOC enthusiasts in California.

UCO proponents argue that open carry law is useful in two important ways:

1. it’s the single most effective way to avoid becoming the victim of a violent crime, which then
2. prevents an individual who visibly possesses a firearm from being forced into a position where they need to actually use his/her weapon (in other words, it serves as a deterrent).

If you or someone you know is facing charges under Penal Code 26350 open carry of unloaded handguns and you need to retain a highly skilled attorney for representation, then we invite you to contact us at Spodek Law Group. We will provide you a free, confidential consultation in office or by phone. We serve clients in Los Angeles, the San Fernando Valley, Orange County, Ventura, Pasadena, Long Beach, San Bernardino, Riverside, San Diego, Rancho Cucamonga, Sacramento, Oakland, San Francisco, San Jose and throughout the Golden State.