§ 16590 PC – Which weapons are illegal in California?

California Penal Code § 16590 makes it a crime to manufacture, sell, or possess certain dangerous weapons. Violating this section can result in misdemeanor or felony charges punishable by up to 3 years in jail.

The weapons covered by the statute include:

1. Prohibited firearms
   • short-barreled shotguns and rifles, per Penal Code 33215 PC,
   • undetectable firearms, per Penal Code 24610 PC,
   • firearms that are not immediately recognizable as firearms, per Penal Code 24510,
   • unconventional pistols, per Penal Code 31500,
   • cane guns, wallet guns, or zip guns, per Penal Codes 24410 PC, 24710 PC, and 33600
2. Prohibited firearm equipment/ammunition
   • camouflaging firearm containers, per Penal Code 24310
   • bullets containing explosive agents, per Penal Code 30210 PC,
   • multiburst trigger activators – per Penal Code 32900 PC
3. Prohibited knives/swords
   • ballistic knives – per Penal Code 21110 PC
   • belt-buckle knives, per Penal Code 20410 PC
   • lipstick case knives, per Penal Code 20610 PC
   • cane swords, per Penal Code 20510 PC
   • shobi-zues, per Penal Code 20710 PC
   • air gauge knives, per Penal Code 20310 PC
   • writing pen knives, per Penal Code 20910 PC
4. Prohibited martial arts weapons
   • shurikens, per Penal Code 22410 PC
5. Other prohibited weapons
   • brass knuckles, per Penal Code 21810 PC
   • leaded canes, per Penal Code 22210 PC
   • metal military practice grenades or metal replica grenades, per Penal Code 19200
   • batons, blackjacks, slungshots, sandclubs, or sandbags, per Penal Code 22210 PC

Penalties

A violation of these laws is a wobbler. This means a prosecutor can charge the offense as either:

• a misdemeanor, or
• a felony.

In some cases, we can contact the prosecutors following your arrest to try to persuade them to bring misdemeanor charges instead of felony charges (or no charges at all). At most, the crime is punishable by custody in county jail for up to three years.

Our California criminal defense attorneys will address the following in this article:

• 1. What are you barred from doing with a prohibited weapon?
  • 1.1. Knowingly
  • 1.2. Possess
  • 1.3. People and weapons exempt from prosecution
• 2. Are there legal defenses?
  • 2.1. There was no prohibited weapon
  • 2.2. You did not know the weapon was there
  • 2.3. The police found the weapon through an unlawful search and seizure
• 3. What are the penalties for a 16590 PC conviction?
• 4. Are there immigration consequences?
• 5. Can I get my conviction expunged?
• 6. Does a conviction affect gun rights?
• 7. Are there related offenses?
  • 7.1. Carrying a loaded firearm in public – PC 25850
  • 7.2. Carrying an unloaded firearm in public – PC 26350
  • 7.3. Brandishing a weapon – PC 417
  • 7.4. Possessing a switchblade – PC 21510
  • 7.5. Carrying a concealed dirk or dagger – PC 21310
  • 7.6. Assault with a deadly weapon – PC 245(a)(1)
• Additional reading

1. What are you barred from doing with a prohibited weapon?

Under this statute, it is a crime for you knowingly to:

• manufacture,
• import into the state,
• offer for sale,
• lend, or
• possess

any generally prohibited weapon.

Questions often arise under these laws on the meaning of:

• knowingly, and
• possess.

Also note that certain people and weapons are exempt from prosecution under these laws.

1.1. Knowingly

You are guilty under this statute only if you act while knowing that an object is:

• a weapon, or
• capable of being used as a weapon.¹

Note that it is not necessary for a prosecutor to prove that you intended to use the object as a weapon. It is enough that you knew the object was capable of being used as a weapon.²

Example: Isabella goes to a swap meet and buys a great-looking antique cane. She has no clue, though, that it contains a sword. She later tries to take it through airport security and TSA discovers that it has a blade hidden inside it.

Here, Isabella is likely not guilty of possessing a generally prohibited weapon because she had no knowledge the cane was an illegal:

• cane sword, or
• capable of being used as a weapon

1.2. Possess

California law says that you “possess” an object when you either:

• actually possess it, or
• constructively possess it.

You have “actual” possession of something when you:

• hold it, or
• have immediate access to it.³

This includes when you have a weapon:

1. somewhere on your body, or
2. in something you are holding or wearing (such as a purse or backpack).

You have “constructive” possession of something when you:

• do not have immediate access to it,
• but nonetheless have control of it, or the right to control it.⁴

Example: Tim brings a set of brass knuckles into the State of California. He takes them and puts them in his home’s garage. The police stop and arrest him the next day on suspicion of having a prohibited weapon.

Here, Tim is guilty of both possessing brass knuckles and importing them into the state. As to possession, while he was not carrying them when arrested, he had control of them via access to his garage.

1.3. People and weapons exempt from prosecution

Certain people and situations are exempt from prosecution under this statute. Some of these include:

• when a weapon is sold or transferred to, or possessed by, law enforcement agencies,^{5 6}
• the possession of relic firearms or ammunition by persons of antique or curio,⁷
• the possession of these weapons by historical societies, libraries, and museums,⁸
• use of unloaded weapons in movies, television, and/or video productions,⁹
• when you turn a generally prohibited weapon over to law enforcement,¹⁰ and
• the possession of these weapons by forensic laboratories.¹¹

2. Are there legal defenses?

Here at Shouse Law Group, we have represented literally thousands of people charged with weapons offenses. In our experience, the following three defenses have proven very persuasive with prosecutors, juries, and judges.

1. There was no prohibited weapon,
2. You did not know the weapon was there, and/or
3. The police found the weapon through an unlawful search and seizure.

2.1. There was no prohibited weapon

You are guilty under this statute only if you perform some act with a “generally prohibited weapon.” This means one of the weapons listed above or specifically listed within Penal Code 16590. A defense, therefore, is for you to say that:

• while you may have had a weapon,
• it was not a prohibited weapon as listed in the statute.

We may be able to hire a weapons expert to testify on your behalf that the item in question does not qualify as a statutorily prohibited weapon.

2.2. You did not know the weapon was there

Recall that you are guilty of violating these laws only if you knew that an object was:

1. a prohibited weapon, or
2. capable of being used as a weapon.

This means it is a defense for you to say that you did not have this knowledge. Evidence we find helpful in this case includes surveillance video and eyewitness accounts.

2.3. The police found the weapon through an unlawful search and seizure

Many charges under this statute arise after an officer stops you and conducts some type of investigation. The authorities cannot conduct a search, or take property without a valid search warrant showing probable cause. If no warrant, then they must have a legal excuse for not having one.

If the police gather evidence from an unlawful search and seizure, then we can ask the judge to exclude that evidence from a criminal case. This means that any charges in the case could get reduced or even dismissed.

3. What are the penalties for a 16590 PC conviction?

Possession of a prohibited weapon is a wobbler. This means a prosecutor can charge the crime as either:

• a misdemeanor, or
• a felony.¹²

If a misdemeanor, the crime is punishable by:

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

If a felony, the offense is punishable by:

• imprisonment in jail for up to three years, and/or
• a maximum fine of $10,000.

4. Are there immigration consequences?

A conviction for possession of a prohibited weapon under PC 16590 will typically not have any negative immigration consequences. Though consult with an attorney in any case.¹³

5. Can I get my conviction expunged?

You can get a PC 16590 conviction expunged provided that you successfully completed:

• probation, or
• your jail term (whichever was imposed).

An expungement is favorable because it removes many of the hardships associated with a conviction.

6. Does a conviction affect gun rights?

A felony conviction for possessing prohibited weapons under PC 16590 will bar you from owning or possessing a firearm. You may be able to get your gun rights restored through a governor’s pardon.

7. Are there related offenses?

There are six crimes related to illegal acts with generally prohibited weapons. These are:

1. carrying a loaded firearm in public – PC 25850,
2. carrying an unloaded firearm in public – PC 26350,
3. brandishing a weapon – PC 417,
4. possessing a switchblade – PC 21510,
5. carrying a concealed dirk or dagger – PC 21310, and
6. assault with a deadly weapon – PC 245(a)(1)

7.1. Carrying a loaded firearm in public – PC 25850

Penal Code 25850 PC is the California statute that makes it a crime to:

1. carry a loaded firearm, and
2. do so in public or in a vehicle.

Note that you are guilty under this law while acting with any firearm. The weapon does not also have to be prohibited under Penal Code 16590.

7.2. 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,
• in a public area.

Note that you can legally carry an unloaded gun in a private residence.

7.3. Brandishing a weapon – PC 417

Penal Code 417 PC is the California statute that defines the crime of brandishing a weapon. You commit this offense by

1. drawing or exhibiting a deadly weapon or a firearm, or
2. using a deadly weapon in a fight.

Note that this statute is not limited to just a gun. It also applies to any object that can be a deadly weapon.

7.4. Possessing a switchblade – PC 21510

Penal Code 21510 PC prohibits the carrying, possessing in public, selling or giving away of a switchblade. This crime is a misdemeanor.

7.5. Carrying a concealed dirk or dagger – PC 21310

Penal Code 21310 PC makes it a misdemeanor or a felony to carry a concealed dirk or dagger. A dirk or dagger is a knife capable of being used as a stabbing weapon and which can cause great bodily injury or death.

7.6. Assault with a deadly weapon – PC PC 245(a)(1)

Penal Code 245(a)(1) PC makes it a crime to attack another person with a weapon capable of causing death or great bodily injury. The D.A. can charge this offense as a misdemeanor or a felony, and it carries a sentence of up to 4 years in prison.

Additional reading

For more information regarding gun laws, refer to the following:

• California firearm laws – List compiled by the ATF.
• Handguns Certified for Sale – Searchable list at the California Attorney General website.
• Bureau of Firearms – Agency with the California Department of Justice.
• California and federal assault weapons laws – Information compiled by the California Attorney General.
• California Has More Than 100 Gun Laws. Why Don’t They Stop More Mass Shootings? – Article in the New York Times.

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Legal References:

The language of the statute reads as follows:

16590. As used in this part, “generally prohibited weapon” means any of the following:

(a) An air gauge knife, as prohibited by Section 20310.

(b) Ammunition that contains or consists of a flechette dart, as prohibited by Section 30210.

(c) A ballistic knife, as prohibited by Section 21110.

(d) A belt buckle knife, as prohibited by Section 20410.

(e) A bullet containing or carrying an explosive agent, as prohibited by Section 30210.

(f) A camouflaging firearm container, as prohibited by Section 24310.

(g) A cane gun, as prohibited by Section 24410.

(h) A cane sword, as prohibited by Section 20510.

(i) A concealed dirk or dagger, as prohibited by Section 21310.

(j) A concealed explosive substance, other than fixed ammunition, as prohibited by Section 19100.

(k) A firearm that is not immediately recognizable as a firearm, as prohibited by Section 24510.

(l) A large-capacity magazine, as prohibited by Section 32310.

(m) A leaded cane or an instrument or weapon of the kind commonly known as a billy, blackjack, sandbag, sandclub, sap, or slungshot, as prohibited by Section 22210.

(n) A lipstick case knife, as prohibited by Section 20610.

(o) Metal knuckles, as prohibited by Section 21810.

(p) A metal military practice handgrenade or a metal replica handgrenade, as prohibited by Section 19200.

(q) A multiburst trigger activator, as prohibited by Section 32900.

(r) A shobi-zue, as prohibited by Section 20710.

(s) A short-barreled rifle or short-barreled shotgun, as prohibited by Section 33215.

(t) A shuriken, as prohibited by Section 22410.

(u) An unconventional pistol, as prohibited by Section 31500.

(v) An undetectable firearm, as prohibited by Section 24610.

(w) A wallet gun, as prohibited by Section 24710.

(x) A writing pen knife, as prohibited by Section 20910.

(y) A zip gun, as prohibited by Section 33600.

(Amended by Stats. 2021, Ch. 434, Sec. 22. (SB 827) Effective January 1, 2022.)