Penal Code § 26350 PC – Open Carry of Unloaded Firearm

Penal Code § 26350 is the California law that makes it a crime to engage in the open carry of an unloaded handgun in a public place or a vehicle. A violation is a misdemeanor punishable by up to one year in county jail.

Note that there is some doubt about the constitutionality of this law. In June of 2016, the U.S. 9th Circuit Court of Appeals ruled en banc that there might be a Second Amendment right for people to carry guns in public openly, but the United States Supreme Court has not answered that question yet. This case was appealed to the United States Supreme Court, but it did not take the case. (Peruta v. Cnty. of San Diego (9th Cir., 2016) 824 F.3d 919.)

Examples

• showing a friend an unloaded firearm in a public parking lot.
• walking into a shopping mall while carrying a gun in one’s hand.
• wearing an unloaded gun on a belt while driving a motor vehicle.

Defenses

Three common defenses include showing that:

• you did not carry a handgun in a “public place,”
• you were exempt from the law, and/or
• peace officers found a gun during an unlawful search and seizure.

Penalties

A violation of California Penal Code Section 26350 is a misdemeanor (as opposed to a felony or an infraction).

Most violations are punishable by:

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

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

• 1. Is open carry of an unloaded gun a crime in California?
• 2. Are there defenses to Penal Code 26530 PC?
  • 2.1. You were not in a public place
  • 2.2. You were exempt from the law
  • 2.3. The police performed an unlawful search and seizure
• 3. What are the penalties?
• 4. Are there related offenses?
  • 4.1. Carrying a concealed firearm – PC 25400
  • 4.2. Carrying a loaded firearm in public – PC 25850
  • 4.3. Felon with a firearm – PC 29800

1. Is open carry of an unloaded gun a crime in California?

A prosecutor must prove the following successfully to secure a conviction under Penal Code 26350 PC:

1. you carried an exposed and unloaded handgun,
2. you carried the gun on your person or inside a vehicle, and
3. you did the above while in a public place or on a public street.¹

For purposes of this law, a “handgun” means any:

• pistol,
• revolver, or
• another firearm capable of being concealed upon the person.²

Further, the terms “public place” and “public street” are defined as:

• a public place or public street in an incorporated city or city and county,
• a public street in a prohibited area of an unincorporated area of a county or city and county, or
• a public place in a prohibited area of a county or city and county.³

Although the statute does not define “public place,” courts have held that it is not the same as public property. A “public place” is any place reasonably accessible to the public without a barrier.⁴

1.1. Exemptions

Note that there are several people exempt from PC 26350, including:

• people with a valid permit to carry a firearm,⁵
• police officers (both active and honorably retired peace officers),
• military personnel,
• licensed firearms manufacturers and dealers,
• people practicing at target ranges,
• hunters,
• employees of common carriers (for example, airlines),
• people at gun shows,
• employees of gun repair shops and pawnshops, and
• people engaged in the rehearsal and production of movies and other forms of entertainment.⁶

2. Are there defenses to Penal Code 26530 PC?

Here at Shouse Law Group, we have represented literally thousands of people facing firearm charges such as the open carry of unloaded guns. In our experience, the following three defenses are very effective with judges, juries, and prosecutors.

2.1. You were not in a public place

Recall that this code section prohibits you from openly carrying a handgun in a public place (or inside a vehicle). As to a “public place,” this term carries a precise legal definition. Therefore, you can always contest a charge by showing that you were not in a public location. Perhaps, for example, you were on a private drive.

2.2. You were exempt from the law

Several people are exempt under this law (for example, police officers and people at gun shows). This means it is always a defense for to show that you fell into one of the exemptions under the statute.

2.3. The police performed an unlawful search and seizure

We can assert you were arrested under this law only after the police conducted an unlawful search and seizure. In the State of California, law enforcement can only search and seize something if they have a warrant or a legal excuse for not having one. If they find a gun via an unlawful search and seizure, a judge can drop or reduce any criminal charges.

3. What are the penalties?

A violation of Penal Code 26350 is a misdemeanor.

The crime is punishable by:

• custody in county jail (as opposed to state prison) for up to one year, and/or
• a fine of up to $1,000.⁷

Note that you can face both a jail sentence and a fine if:

1. you are also carrying unexpended, dischargeable ammunition, and
2. you are not the lawful owner of the gun.⁸

In addition, the above penalties are for each unloaded gun you carry.⁹

4. Are there related offenses?

4.1. Carrying a concealed firearm – PC 25400

Per Penal Code 25400, carrying a concealed firearm is the crime where you carry a concealed firearm or a concealed weapon on your person or in a vehicle.

Unlike with violations of PC 26350, a prosecutor can charge a violation of this law as a felony under some circumstances (for example, if you were previously convicted of a felony or were a member of a street gang).

4.2. Carrying a loaded firearm in public – PC 25850

Per Penal Code 25850, carrying a loaded firearm in public is the crime where you carry a loaded firearm in a public place, on a public street, or in a motor vehicle.

Unlike with PC 26350, this statute applies to firearms as opposed to just handguns.

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.¹⁰

4.3. Felon with a firearm – PC 29800

Under Penal Code 29800, felon with a firearm is the crime where a convicted felon owns, purchases, or possesses a firearm.

Unlike with a violation of the open carry law, a violation of this law is always charged as a felony. The crime can lead to a jail term of up to three years.

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