California’s "Open Carry" Laws

Explained by Criminal Defense Lawyers

California’s gun laws generally allow you to carry an unloaded, unlicensed firearm in public, so long as the weapon is in plain sight. This law applies as long as you are not in a prohibited area. "Prohibited areas" include government buildings, post offices, and school zones under California’s Gun Free School Zone Act.

But the fact is that many citizens…including many law enforcement officers…either aren’t well versed in these laws or are completely ignorant of their existence. This, unfortunately, results in a large number of cases where people who are lawfully carrying their firearms in accordance with their Second Amendment right to bear arms are wrongfully harassed, arrested, and sometimes even prosecuted.

Should you find yourself in this situation, we’re here to help. We specialize in defending clients who are accused of violating California’s gun laws. As former cops, prosecutors, and now, criminal defense attorneys, we have a thorough understanding of these laws and how California’s "open carry" laws can excuse your alleged criminal conduct.

What are California’s "open carry" laws?

If you "open carry", it means that you are carrying your firearm in plain sight. There is no law that specifically authorizes this practice. Rather, the legality of this practice is based on the premise that it isn’t prohibited by any existing laws.

There are a couple philosophies that gun activists rely on to support this practice.

One is that law-abiding gun owners should be able to exercise and advertise their Second Amendment right to bear arms.

Another is that open carry serves two important purposes. "Open carriers" believe that

1. it's the most effective way to prevent being the victim of a violent crime, which in turn



2. prevents the individual who visibly posses a firearm from being forced into a position of having to actually use his/her weapon.

Open carry laws do not apply to assault weapons, which are prohibited under Penal Code 12280 PC, California’s law against possessing assault weapons, or to destructive devices, which are prohibited under Penal Code 12303 PC, California’s law against possessing destructive devices.¹

The political movement

The Unloaded Open Carry (UOC) movement began in 2004 and has since continued to gain momentum. Currently, 38 states have a variation of this law….and all states have UOC enthusiasts.

And in California, in particular, these enthusiasts are frequently holding "meet ups" in public places, such as restaurants and, most notoriously, Starbucks.

During these meet ups, some of the open carriers are secretly wearing tape and/or video recorders and may even have an attorney present as well. The enthusiasts are passively inviting a run-in with law enforcement as a way to challenge their legal rights in court.

In general, these meet ups are a way for the activists to protest California’s laws relating to concealed weapons’ permits. Open carriers argue that California only issues concealed weapons’ permits to those who are "well connected" and refuses permits to the "ordinary" citizen.

Who can open carry?

Anyone who isn’t prohibited from possessing firearms. Examples of people falling within this "excluded" category include (but are not limited to):

• minors (that is, people who are under 18),



• convicted felons who are prohibited from owning, possessing, purchasing, or receiving firearms under Penal Code 12021 PC, California’s "felon with a firearm" law, and



• those who have been diagnosed with a mental disorder who are a potential threat to themselves and/or other people.²

As long as you aren't legally barred from owning or possessing firearms, you can openly carry handguns, rifles, and shotguns alike. As for magazines…as long as you either

1. carry them openly in a holster, or



2. carry an unloaded magazine in the gun…

you avoid the potential legal pitfall of having a partially concealed magazine qualify as an illegally concealed weapon.³

And California’s open carry laws not only apply to firearms carried on your person, but also to guns that you openly possess in your car or on a motorcycle. However, if you pass through a school zone, you must place your weapon in a locked case that complies with Penal Code 12026.1 PC.⁴

What's still illegal

As Newport Beach criminal defense attorney Zachary McCready explains⁵, "There are a variety of California gun laws that prohibit you from carrying guns in certain circumstances. If you’re going to carry a firearm legally, you need to make sure that you’re not violating these other statutes."

Some of these other gun laws include (but are not limited to):

Concealed and loaded weapons

If you violate Penal Code 12025 PC, California’s "carrying a concealed weapon" law, you aren't protected by open carry laws.⁶ Again, open carry is just that…carrying a weapon plainly and openly in public.

Similarly, if you violate Penal Code 12031 PC, California’s law against carrying a loaded firearm in public,⁷ you can be prosecuted even if you carry the gun openly, since the law only allows carrying an unloaded gun in public.

A firearm is unloaded when its ammunition is in a separate storage compartment.⁸ It therefore follows that you are permitted to carry an unloaded firearm and ammunition…that is, unless you intend to commit a felony. If that is the case, simultaneously carrying an unloaded firearm and ammunition legally renders the gun loaded.⁹

But there are, in fact, certain times when the law permits you to carry even a loaded weapon. These situations include (but are not limited to):

• your home,



• a business in which you have at least a "possessory" interest (which means you have the right to exclude others from it or to control the activities therein), or



• on private property.¹⁰

Prohibited areas

Unloaded open carry is legal anywhere in California except:

• school zones,



• California state parks,



• federal facilities within National parks,



• U.S. post offices and other federal buildings,



• any local, state, or other government building or in any public legislative meeting,



• places where one’s access is controlled by security screening (at airports, for example), and



• anywhere that is prohibited by a local city or county ordinance.¹¹

If and when an officer does stop you…even in an area that is not prohibited…you must allow him/her to inspect your weapon to ensure that it is unloaded. The failure to do so gives officers probable cause to arrest you.¹²

Penal Code 417 PC, brandishing a weapon

Even if you are in compliance with California’s open carry laws…that is, your unloaded firearm is plainly visible, and you are in a place where carrying it is legal…you may not use it to threaten or intimidate others. If you exhibit or draw your gun in a rude, angry, or threatening manner, prosecutors will likely charge you with Penal Code 417 PC brandishing a weapon.¹³

Assembly Bill 1934 -- A ban on California "open carry"

If passed, Assembly Bill 1934, introduced by Assemblywoman Lori Saldaña, effectively eliminates California open carry laws. AB 1934 closes the loopholes under California law that currently authorize it. In addition, AB 1934 would enact a new law…codified under Penal Code 12037 PC…that would specifically declare it a misdemeanor even to openly carry an unloaded firearm.

Call us for help…

For more information about California’s gun laws, or to discuss your case confidentially with one of our attorneys, please don’t hesitate to contact us at Shouse Law Group.

Our California criminal law offices are located in and around Los Angeles, Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

Additionally, our Las Vegas Nevada criminal defense attorneys represent clients accused of violating Nevada’s firearm laws. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.¹⁴

You may also find helpful information in our related articles on California Firearm Offenses; California’s Gun Free School Zone Act; Penal Code 12025 PC Carrying a Concealed Weapon; Penal Code 12050 PC Concealed Weapons Permits; Penal Code 417 PC Brandishing a Weapon; Penal Code 12021 PC Felon with a Firearm; Penal Code 12280 PC Possession of Assault Weapons; Penal Code 12303 PC Destructive Devices; and Police Misconduct.

Online Resource:

www.californiaopencarry.org

Legal References:

¹California Penal Code 12280 PC -- Assault weapons. ("(b) Any person who, within this state, possesses any assault weapon, except as provided in this chapter, shall be punished by imprisonment in a county jail for a period not exceeding one year, or by imprisonment in the state prison.") Although there are some exceptions to this law, open carry is not one of them.

See also California Penal Code 12303 PC -- Destructive devices. ("Any person, firm, or corporation who, within this state, possesses any destructive device, other than fixed ammunition of a caliber greater than .60 caliber, except as provided by this chapter, is guilty of a public offense and upon conviction thereof shall be punished by imprisonment in the county jail for a term not to exceed one year, or in state prison, or by a fine not to exceed ten thousand dollars ($10,000) or by both such fine and imprisonment.") Similar to possession of assault weapons, there are some exceptions that exempt you from prosecution from this offense, however California’s open carry laws do not do so.

²California Penal Code 12021 PC -- "Felon with a firearm". This law lists a variety of circumstances whereby one would be prohibited from possessing, owning, purchasing, and/or receiving a firearm, thereby excluding him/her from legally openly carrying.

³California Penal Code 12025 PC -- Concealed weapons. ("(f) Firearms carried openly in belt holsters are not concealed within the meaning of this section.") This means that if you open carry your firearm in a belt holster, you are not guilty of violating this law.

⁴California Penal Code 12026.1 PC -- Authority to transport or carry concealable firearms. ("(a) Section 12025 shall not be construed to prohibit any citizen of the United States over the age of 18 years who resides or is temporarily within this state, and who is not prohibited by state or federal law from possessing, receiving, owning, or purchasing a firearm, from transporting or carrying any pistol, revolver, or other firearm capable of being concealed upon the person, provided that the following applies to the firearm: (1) The firearm is within a motor vehicle and it is locked in the vehicle's trunk or in a locked container in the vehicle other than the utility or glove compartment. (2) The firearm is carried by the person directly to or from any motor vehicle for any lawful purpose and, while carrying the firearm, the firearm is contained within a locked container. (b) The provisions of this section do not prohibit or limit the otherwise lawful carrying or transportation of any pistol, revolver, or other firearm capable of being concealed upon the person in accordance with this chapter. (c) As used in this section, "locked container" means a secure container which is fully enclosed and locked by a padlock, key lock, combination lock, or similar locking device.") Therefore, if order to comply with California’s open carry laws while driving in a school zone, you must place your firearm in an appropriate locked case.

⁵Newport Beach criminal defense attorney Zachary McCready represents clients accused of violating California’s firearms offenses throughout Orange County, including Fullerton, Anaheim, Huntington Beach, Santa Ana, Irvine and Westminster. In addition, our California criminal defense lawyers have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

⁶California Penal Code 12025 PC -- Carrying a concealed weapon. ("(a) A person is guilty of carrying a concealed firearm when he or she does any of the following: (1) Carries concealed within any vehicle which is under his or her control or direction any pistol, revolver, or other firearm capable of being concealed upon the person. (2) Carries concealed upon his or her person any pistol, revolver, or other firearm capable of being concealed upon the person. (3) Causes to be carried concealed within any vehicle in which he or she is an occupant any pistol, revolver, or other firearm capable of being concealed upon the person.") Again, carrying a concealed weapon is illegal…open carry is not.

⁷California Penal Code 12031 PC -- Carrying a loaded firearm in a public place. ("(a)(1) A person is guilty of carrying a loaded firearm when he or she carries a loaded firearm on his or her 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.") Unless you are on private property or one of the other specified locations where open carry of a loaded gun is okay, you must open carry with an unloaded firearm.

⁸People v. Clark (1996) 45 Cal.App.4th 1147, 1153. ("Under the commonly understood meaning of the term "loaded," a firearm is "loaded" when a shell or cartridge has been placed into a position from which it can be fired; the shotgun is not "loaded" if the shell or cartridge is stored elsewhere and not yet placed in a firing position. The shells here were placed in a separate storage compartment of the shotgun and were not yet "loaded" as the term is commonly understood.")

⁹California Open Carry Flyer -- ("There is a common misconception that merely possessing both a firearm and ammunition in close proximity legally equates to loaded. This mistake stems from several PC sections that do not apply to the law-abiding gun owner. 12001(j) only applies to 12023 (carry with intent to commit a felony). 12021.5 only applies to street gang crimes as defined in 186.22. 12022.2 only applies to armor piercing ammunition. 12025(b)(6)(A) is a sentence enhancement which only applies if one violates 12025 (carrying concealed). 171e only applies inside the State Capitol, legislative offices, or office or residence of the Governor."

¹⁰California Penal Code 12031 PC -- Carrying loaded firearms. ("(h) Nothing in this section shall prevent any person engaged in any lawful business, including a nonprofit organization, or any officer, employee, or agent authorized by that person for lawful purposes connected with that business, from having a loaded firearm within the person's place of business, or any person in lawful possession of private property from having a loaded firearm on that property…(l) Nothing in this section shall prevent any person from having a loaded weapon, if it is otherwise lawful, at his or her place of residence, including any temporary residence or campsite.")

See also People v. Barela (1991) 234 Cal.App.3d Supp. 15, 20, regarding definition of "place of business". ("The legislative statement of purpose makes clear that an employee must have a possessory interest in his or her workplace in order for that workplace to be considered the employee's "place of business" under section 12026. Only those employees who have the right to exclude others from their workplace, and the right to control activities there, may carry concealed weapons at work without a permit or license.") This is why open carry is permissible in these types of locations.

¹¹See California Open Carry Flyer, endnote 9, above. (Regarding some of California’s open carry laws…"Other Restrictions: 171 b,c,d Cannot carry in any state or local public building or at any legislative meeting required to be open to the public. Cannot carry in the State Capitol, legislative offices, office of the Governor, Governor’s residence, etc. 626.9 Cannot carry "in a place that the person knows, or reasonably should know" is within 1000 feet of a K-12 school. Must be transported unloaded in a locked case or vehicle trunk. Cannot carry on the grounds of a university without written permission. 36 CFR 2.4 (a) Effective February 22, 2010, the Coburn Amendment (s512 of HR627) forces the National Parks to allow possession and carry of firearms in the Parks. However, in California, the Park Service believes that 36 CFR 2.4 (a) (iii) (prohibits the use of firearms) still applies, and that it triggers 12031(f) and therefore loading is not legal. While this appears to violate the intent of the Coburn Amendment, it would be wise to only carry unloaded at this time in the National Parks (accept in one’s campsite, where 12031 does not apply). CCR Title 14, Div 3, Chap 1, s 4313 (a) Cannot carry in a State Park. However firearms may be possessed within temporary lodging or a vehicle when unloaded and "packed, cased, or stored in a manner that will prevent their ready use." 39 CFR 232.1 (l) Cannot carry on U.S. Postal Service property. 49 CFR 1540.111 and PC 171.5 Cannot carry in "sterile areas" (areas where access is controlled by security screening) of airports. Local Laws: Cities and counties may have there own limits on possession or use of firearms. However these local laws cannot legally preempt State law. Contact your local government or local law enforcement agencies to determine what these limits may be. National Forest and BLM: On these federal lands firearms are generally permitted, if carried and used in a safe manner, and if the users comply with state and county laws. Most of these lands qualify as "unincorporated territory", but there are some restrictions on shooting (near structures, developed areas, roads, bodies of water) so 12031(f) applies in these areas. Check with your local ranger station for any other local restrictions.")

¹²See Penal Code 12031, endnote 7, above. ("(e) In order to determine whether or not a firearm is loaded for the purpose of enforcing this section, peace officers are authorized to examine any firearm carried by anyone on his or her person or in a vehicle while in any public place or on any public street in an incorporated city or prohibited area of an unincorporated territory. Refusal to allow a peace officer to inspect a firearm pursuant to this section constitutes probable cause for arrest for violation of this section.") This law applies to concealed carry as well as to open carry.

¹³California Penal Code 417 PC -- Brandishing a weapon. ("(2) Every person who, except in self-defense, in the presence of any other person, draws or exhibits any firearm, whether loaded or unloaded, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a firearm in any fight or quarrel is punishable as follows: (A) If the violation occurs in a public place and the firearm is a pistol, revolver, or other firearm capable of being concealed upon the person, by imprisonment in a county jail for not less than three months and not more than one year, by a fine not to exceed one thousand dollars ($1,000), or by both that fine and imprisonment. (B) In all cases other than that set forth in subparagraph (A), a misdemeanor, punishable by imprisonment in a county jail for not less than three months.") Violating this law while you open carry subjects you to prosecution for this and possibly additional criminal charges.

¹⁴Please feel free to contact our Nevada criminal defense attorneys Michael Becker and Mike Castillo for any questions relating to Nevada’s firearm laws. Their Nevada law offices are located in Reno and Las Vegas.

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