Carrying a Loaded Firearm in Public

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.

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.

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.

For these reasons, a proper defense of a firearm case should include a close examination of how and why the police conducted their investigation, and how they seek to justify each step.