§ 148d PC – Taking a Firearm From a Police Officer

California Penal Code § 148d PC makes it a crime to take a firearm from a police officer’s person or immediate presence. This offense be prosecuted for a misdemeanor or a felony.

The full text of the law reads:

148d.  (d) Except as provided in subdivision (c) and notwithstanding subdivision (a) of Section 489, every person who removes or takes without intent to permanently deprive, or who attempts to remove or take a firearm from the person of, or immediate presence of, a public officer or peace officer, while the officer is engaged in the performance of his or her lawful duties, shall be punished by imprisonment in a county jail not to exceed one year or pursuant to subdivision (h) of Section 1170.
In order to prove a violation of this subdivision, the prosecution shall establish that the defendant had the specific intent to remove or take the firearm by demonstrating that any of the following direct, but ineffectual, acts occurred:
(1) The officer’s holster strap was unfastened by the defendant.
(2) The firearm was partially removed from the officer’s holster by the defendant.
(3) The firearm safety was released by the defendant.
(4) An independent witness corroborates that the defendant stated that he or she intended to remove the firearm and the defendant actually touched the firearm.
(5) An independent witness corroborates that the defendant actually had his or her hand on the firearm and tried to take the firearm away from the officer who was holding it.
(6) The defendant’s fingerprint was found on the firearm or holster.
(7) Physical evidence authenticated by a scientifically verifiable procedure established that the defendant touched the firearm.
(8) In the course of any struggle, the officer’s firearm fell and the defendant attempted to pick it up.

Legal Analysis

California Penal Code 148d PC makes it a crime to intentionally take a gun from a police officer or a public officer. It is irrelevant if the defendant never fires the gun.

Note that prosecutors have to prove the defendant’s specific intent to take the firearm through one or more of the following eight pieces of evidence:

1. The defendant unfastened the officer’s holster strap.
2. The defendant partially removed the gun from the officer’s holster.
3. The defendant released the gun safety.
4. An independent witness corroborates that the defendant stated their intent to remove the gun, and the defendant actually touched the gun.
5. An independent witness corroborates that the defendant had their hand on the gun and tried to take it away from the officer holding it.
6. The defendant’s fingerprint was on the gun or holster.
7. Physical evidence established that the defendant touched the gun.
8. The officer’s gun fell, and the defendant tried to pick it up.

Example: Surveillance video shows Beth trying to take a police officer’s gun during a protest in Los Angeles. If Beth is arrested for violating PC 148d, prosecutors could use this surveillance video as evidence of Beth’s intent to take the officer’s firearm.

Taking a peace/public officer’s firearm is a wobbler. If prosecuted as a misdemeanor, violating PC 148d carries:

• up to 1 year in county jail; and/or
• up to $1,000 in fines.

If prosecuted as a felony, violating PC 148d carries carries a county jail term of:

• 16 months,
• 2 years, or
• 3 years.

The defendant also faces up to $10,000 in fines.¹

1. Can I be charged with violating PC 148d if the officer was off-duty?

No. Taking a gun from an off-duty officer in California does not violate PC 147d. However, you could still face battery charges for taking a gun away from someone’s person.

2. What are the best defenses?

Potential strategies for fighting PC 148d charges include showing that:

1. You never took the weapon and are being falsely accused by the officer;
2. You never took the weapon and were falsely identified out of a lineup;
3. The object you took was not a firearm; and/or
4. The officer was not on-duty at the time.

As long as the D.A. cannot prove beyond a reasonable doubt that you are guilty, the charge should be dismissed.

3. Will a PC 148d conviction strip me of my gun rights?

Any felony conviction will cause you to lose your gun rights in California. Though if you were prosecuted and convicted of only a misdemeanor, then your gun rights are unaffected.²

 

See our related article on resisting arrest (PC 148).

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Legal References