Whether concealed or not, it is generally unlawful to carry a loaded firearm in public

(Amended by Ordinance No. 184274, effective December 31, 2010.)

A. It is unlawful for any person to knowingly possess or carry a firearm, in or upon a public place, including while in a vehicle in a public place, recklessly having failed to remove all the ammunition from the firearm.

B. It is unlawful for any person to knowingly possess or carry a firearm and that firearm’s clip or magazine, in or upon a public place, including while in a vehicle in a public place, recklessly having failed to remove all the ammunition from the clip or magazine.

C. The following are exceptions and constitute affirmative defenses to a violation of this Section:

1. A police officer or other duly appointed peace officers, whether active or honorably retired.

2. A member of the military in the performance of official duty.

3. A person licensed to carry a concealed handgun.

4. A person authorized to possess a loaded firearm while in or on a public building under ORS 166.370.

5. A government employee authorized or required by his or her employment or office to carry firearms.

6. A person summoned by a police officer to assist in making arrests or preserving the peace, while such person is actually engaged in assisting the officer.

7. A merchant who possesses or is engaged in lawfully transporting unloaded firearms as merchandise.

8. Organizations which are by law authorized to purchase or receive weapons from the United States or from this state.

9. Duly authorized military or civil organizations while parading, or their members when going to and from the places of meeting of their organization.

10. A corrections officer while transporting or accompanying an individual convicted of or arrested for an offense and confined in a place of incarceration or detention while outside the confines of the place of incarceration or detention.

11. Persons travelling to and from an established target range, whether public or private, for the purpose of practicing shooting targets at the target ranges.

12. Licensed hunters or fishermen while engaged in hunting or fishing, or while going to or returning from a hunting or fishing expedition.

13. A person authorized by permit of the Chief of Police to possess a loaded firearm, clip, or magazine in a public place in the City of Portland.

14. A security guard employed at a financial institution insured by the Federal Deposit Insurance Corporation while the security guard is on duty.

D. It is unlawful for any person who possesses a firearm, clip or magazine in or upon a public place, or while in a vehicle in a public place, to refuse to permit a police officer to inspect that firearm after the police officer has identified him or herself as a police officer. This Section does not apply to law enforcement officers or members of the military in the performance of official duties, nor persons licensed to carry a concealed handgun or persons authorized to possess a loaded firearm, clip or magazine while in or on a public building or court facility.

E. Penalty

1. In the absence of the aggravating factors listed in Subsection 14A.60.010 E.2., the court may impose a sentence of up to 6 months imprisonment and a fine not to exceed $500 for violation of this section.

2. When this offense is committed by carrying a loaded firearm containing ammunition that employs gunpowder as a propellant in a vehicle, including a transit vehicle, the court must impose a mandatory minimum sentence of 30 days for violation of this Section.

The carrying of a concealed or loaded firearm is generally unlawful in California unless a person is entitled to a specific exception. One important exception applies to people who have a valid Concealed Carry Weapon (CCW) license. When no specific exception applies, the potential criminal charges for carrying a concealed or loaded firearm range from felony to misdemeanor. The applicable charge depends on the alleged circumstances of the carrying and the alleged background of the accused person. The prosecution always has the burden of proving its charges beyond a reasonable doubt.

As an experienced criminal defense and trial attorney, Richard M. Oberto has defended numerous clients against firearms allegations. A variety of defenses may apply. Some potential defenses are as follows: A person may have been near a firearm, but had no knowledge or control of it; an alleged firearm may not have met the legal requirements for a firearm; a person may have had a lawful justification or reason to carry the firearm. Other defenses also may apply. Mr. Oberto closely evaluates the unique evidence in each case to deliver the best defense for clients.

Carrying a Concealed Firearm

California Penal Code section 25400 defines the crime of carrying a concealed firearm. The proof requirements differ according to whether the accused person was allegedly carrying the firearm on his person or within a vehicle. When the allegation is that the accused person was carrying the firearm on his person, the prosecution must prove that (1) the firearm that was capable of being concealed on the accused person, (2) the accused person knew the firearm was present, and (3) the firearm was substantially concealed on the accused person. When the allegation is that the accused person was carrying the firearm within a vehicle, the prosecution must prove the foregoing three elements and also that (4) the vehicle was under the control or direction of the accused person.

Carrying a Loaded Firearm

California Penal Code section 25850 defines the crime of carrying a loaded firearm. The core requirements of proof are that the accused person (1) was carrying a loaded firearm on his person or in his vehicle, (2) knew he was carrying the firearm, and (3) at the time was in a public place where discharge of a firearm was unlawful.

Punishments

The statutes that criminalize carrying a concealed or loaded firearm include felony and misdemeanor provisions. A felony charge may apply where the accused person (1) had a specified criminal record, (2) knew or had reasonable cause to believe the firearm was stolen, (3) was an active participant in a criminal street gang, (4) did not have permission to possess the firearm from either the lawful owner or a person with apparent authority over the firearm, (5) was prohibited from possessing a firearm due to conviction, juvenile finding, court order, or mental illness, or (6) was not the registered owner and the firearm was also loaded. In all other cases, the crime of carrying a concealed or loaded firearm is punishable as a misdemeanor.

The felony crimes for carrying a concealed or loaded firearm are punishable by imprisonment and fines. The potential term of imprisonment is 16 months or two or three years, and the potential fine is up to $10,000. The conviction does not restrict a person’s eligibility for probation and a suspended sentence. The misdemeanor crimes for carrying a concealed or loaded firearm are punishable by a maximum of one year in jail and a fine of $1,000.

The crime of carrying a concealed or loaded firearm is a “wobbler” offense if the underlying allegation is that the accused person was not the registered owner and the firearm was loaded. The term “wobbler” means the offense can be charged as a felony or misdemeanor. If the offense is charged as a felony, the accused person may apply to the court for reduction to a misdemeanor.

Exceptions to Criminal Provisions

California law provides a number of exceptions to the criminal laws that prohibit carrying a concealed or loaded firearm. The exceptions generally function so that people can exercise their lawful rights to own and use firearms without undue hindrance. A person who has any questions about the criminal provisions that restrict carrying firearms should contact an attorney.

Knowledgeable Legal Representation

Mr. Oberto welcomes people to contact him 24/7 at (559) 221-2557 to request an initial consultation. Se habla Espanol.

People also may contact Mr. Oberto to request an initial consultation using the contact form available on this website. Please do not use the contact form to write down sensitive information. Information communicated over the internet, including through this website, may not be considered confidential or privileged.

Updated July 28, 2022

Carrying a Loaded Firearm - CA Penal Code 25850 PC

California Penal Code 25850 PC prohibits you, absent a valid CCW, from carrying a loaded firearm

in a public place,
on a public street, or
in a motor vehicle.

This offense is generally treated as a misdemeanor punishable by up to one year in county jail.

Note that officers will often cite this section as

PC 25850,
25850 PC or
25850 CPC

as shorthand for the California Penal Code.

The language of the statute reads:

25850. (a) A person is guilty of carrying a loaded firearm when the person carries a loaded firearm on the person or in a vehicle while in any public place or on any public street in an incorporated city or in any public place or on any public street in a prohibited area of unincorporated territory.

Note that this section effectively does away with California’s open-carry firearm laws.

On July 27, 2022, the Honorable Steve White of the Sacramento Superior Court indicated in People of California v. Tony Diaz (docket number 21FE019850) that 25850(a)(1) is illegal. This case applies only to the jurisdiction under Sacramento Superior Court, and people are still advised to abide by PC 25850 for now.

Examples

driving on a public street with a loaded revolver in the glovebox.
walking through a park with a loaded shotgun in a backpack.
strolling through a neighborhood with a loaded handgun in a pocket.

Defenses

A person can fight the charge by asserting a legal defense. Common defenses to a violation of this section are:

no knowledge of carrying a firearm,
firearm not loaded,
exempt from the law, and/or
illegal search and seizure.

Penalties

Carrying a loaded firearm in public is a misdemeanor. The penalties include:

custody in county jail for up to one year, and/or
a maximum fine of $1,000.

Note, though, that aggravating factors can make the crime a wobbler offense. This means a district attorney can charge the offense as either a misdemeanor or a felony.

A felony conviction can result in a state prison sentence of up to three years.

Our California criminal defense lawyers will discuss the following in this article:

1. When is it a crime to carry a loaded firearm?

Penal Code 25850 PC is the California statute that makes it a crime for a person to carry or have possession of a loaded firearm in public.1

A prosecutor must prove the following to convict a person under this code section:

the defendant carried a loaded ﬁrearm on his person or in his vehicle,
the defendant knew that he was carrying a ﬁrearm, and
at that time, the defendant was in a public place or on a public street in an incorporated city or area where it was unlawful to discharge a ﬁrearm.2

A “public place” is any place that is open to common and general use and is readily accessible by anyone wishing to go there.3

Questions often arise under this statute on the meaning of:

firearm, and
loaded firearm.

1.1. What is a firearm?

California law says that a “firearm” is:

any device designed to be used as a weapon, and
from which a projectile is discharged through a barrel by an explosion.4

Common examples of firearms are:

pistols,
revolvers,
rifles,
shotguns, and
tasers.5

The following are not considered firearms:

pellet guns, and
BB guns.6

1.2. What does “loaded” mean?

Under California law, a firearm is loaded if there is either:

an unexpended cartridge or shell in the firing chamber, or
the same is in either a magazine or clip attached to the firearm.7

Note that an accused must have knowledge of the presence of a firearm in order to be guilty under this law.8

But it is not necessary, for a conviction, that the accused knew that his gun was loaded.9

Example: Jerome is driving his car and has no clue that his loaded gun is in the glovebox. Here, Jerome is not guilty under PC 25850 because he had no knowledge of the weapon.

Now consider that Jerome is driving his car. He knows that his gun is in the auto, but he doesn’t believe it is loaded. Jerome is pulled over and it turns out the gun is loaded. Here, Jerome is guilty under the law – even though he did not know the gun was loaded.

In California, it is a crime for a person to carry a loaded firearm in public.

2. Are there legal defenses?

A defendant can raise a legal defense to challenge an accusation of carrying a loaded gun.

Three common defenses are:

no knowledge of carrying a firearm,
firearm not loaded,
exempt from the law, and/or
illegal search and seizure.

2.1. No knowledge of carrying a firearm

A person is only guilty under this statute if he knows he is carrying a gun either:

on his person, or
in a vehicle.

This means it is a defense for an accused to show that he did not know about a firearm.

2.2. Firearm not loaded

A defendant is only guilty under PC 25850 if the gun he is carrying is in fact loaded. Therefore, a defendant can always raise the defense that:

while he may have been carrying a firearm,
it was not loaded.

2.3. Exempt from the law

Certain persons have exemptions from criminal liability under this statute. This means it is legal for them to carry a loaded firearm in public. Some of these parties include:

a California police officer/peace officer (either active or honorably retired),10
an agent of any federal law enforcement agency (e.g., FBI),11
a member of the United States military,12
a recreational shooter,13 and
a person with a concealed carry permit.14

2.4. Illegal search and seizure

Sometimes law enforcement officers may have discovered a defendant’s gun by way of an illegal search. This happens when they conduct a search without a warrant and without probable cause.

If authorities obtain evidence from an unreasonable, or unlawful search and seizure, then that evidence can get excluded from a criminal case. This means that any charges in the case (e.g., carrying a loaded firearm in public) could get reduced or even dismissed.

Self-defense is usually not a defense to PC 25850 charges.

3. What are the Penal Code 25850 PC penalties?

A simple violation of this law is a misdemeanor. The penalties include:

custody in county jail for up to one year, and/or
a maximum fine of $1,000.

Note, though, that certain aggravating factors can make a PC 25850 violation either:

a wobbler, or
a straight felony.

Further, a person will have to serve a minimum of three months in county jail if he has certain prior convictions.

3.1. Wobbler offenses

A violation of this statute becomes a wobbler if the defendant:

is not the registered owner of the gun, or
was previously convicted of a certain misdemeanor or certain drug offense.15

A wobbler is a crime that a prosecutor can charge as either:

a misdemeanor, or
a felony.

A misdemeanor is punishable as described above in Section 3.

A felony is punishable by:

imprisonment in county jail for up to three years, and/or
a maximum fine of $1,000.16

3.2. Straight felonies

Carrying a loaded firearm will be charged as a straight felony if either:

the defendant had a prior felony or firearm conviction,
the firearm was stolen,
the defendant belonged to a criminal street gang,
the firearm was not lawfully possessed, or
the defendant was legally prohibited from having ownership or possession of the firearm.17

As a straight felony, the offense is punishable by:

custody in county jail for up to three years, and/or
a maximum fine of $10,000.18

3.3. Three-month mandatory minimum

A defendant must serve a minimum of three months in county jail if:

he violates Penal Code 25850, and
has already been convicted of certain offenses.19

These offenses include:

California law refers to this minimum of three months as a three-month mandatory minimum.

4. Are there immigration consequences?

A conviction of this law may have negative immigration consequences.

United States immigration law says that certain kinds of criminal convictions can lead to:

A category of “deportable” crimes includes “firearms offenses.”20

This means, depending on the facts of the case, a PC 25850 conviction can sometimes lead to deportation and other immigration consequences.

5. Can a person get a conviction expunged?

A person convicted of this crime is entitled to an expungement if he:

successfully completes probation, or
completes a jail term (whichever is relevant).

If a party violates a probation term, he could still possibly get the offense expunged. But this would be in the judge’s discretion.

Under Penal Code 1203.4, an expungement releases an individual from virtually “all penalties and disabilities” arising out of the conviction.21

6. Does a conviction affect gun rights?

A conviction under this statute may have a negative effect on the convicted party’s gun rights.

According to California law, convicted felons are prohibited from acquiring or having possession of a firearm in California.

This means that:

if the facts of a case result in a prosecutor charging the crime as a felony, and
the accused is convicted of the same,

the defendants will lose their rights to own and possess a gun.

There are three statutory crimes related to carrying a loaded firearm. These are:

carrying a concealed weapon – PC 25400,
openly carrying an unloaded firearm in public – PC 26350, and
the unlicensed sale of firearms – PC 26500.

7.1. Carrying a concealed weapon – PC 25400

Penal Code 25400 PC is the California statute that makes it a crime for a person to carry a concealed firearm either:

on his person, or
in a vehicle.

Carrying a concealed gun is a crime no matter if it is:

7.2. Openly carrying an unloaded firearm in public – PC 26350

Penal Code 26350 PC is the California statute that makes it a crime to:

openly carry an unloaded firearm, and
do so in a public area.

Note that this statute effectively repealed what previously had been a limited “open carry” law in California.

7.3. Unlicensed sale of firearms – PC 26500

Penal Code 26500 PC is the California law that makes it a misdemeanor to:

sell, lease or transfer firearms, and
do so without a valid permit.

It is a separate violation under this law for every gun that a person sells, leases, or transfers without a permit.

For additional help…

For additional guidance or to discuss your case with a criminal defense attorney, we invite you to contact us at Shouse Law Group. We defend against all types of charges from DUI to domestic violence in Los Angeles and throughout California.

For charges of carrying a loaded gun in Nevada and Colorado, please see our articles on: