Carrying A Loaded Firearm

A conviction for carrying a loaded firearm could also have negative immigration consequences. A conviction for certain crimes – particularly those classified as “crimes of moral turpitude” — could lead to some consequences under the United States immigration law.

If you are a non-citizen, you could therefore be deported for such a conviction. You could also be marked as inadmissible in the United States. Firearm offenses are among the deportable crimes. Therefore, violating P.C. § 25850 could lead to deportation alongside other immigration consequences.

Whether a Conviction Under Penal Code section 25850 Will Affect Your Gun Rights

A conviction for carrying a loaded firearm could have an adverse effect on your gun rights. According to California law, a convicted felon is not allowed to acquire or possess a gun. Therefore, if the prosecutor charges the violation of P.C. § 25850 as a felony and you are convicted of the same, you will be prohibited from owning or possessing a gun.

Expungement of Your Criminal Conviction (California Penal Code section 1203.4)

If you are convicted of carrying a loaded firearm, you could be entitled to an expungement of your criminal conviction if:

• You complete your probation; and/or
• You complete the jail term, whichever is applicable.

If you violate the probation terms, you could still have your conviction expunged. However, this will depend on the judge’s discretion, who likely deny your request. The expungement of a criminal conviction, outlined under P.C. § 1203.4, will release you from all the penalties that could arise from your criminal conviction.

Statutory Exemptions to P.C. § 25850

Several exemptions are available under P.C. § 25850. You will not face charges for carrying a loaded firearm in public if you are:

• A peace officer like a federal agent, police, probation, or corrections officer;
• Active military personnel;
• A peace officer who is honorably retired;
• Zookeepers;
• Animal control persons;
• Private investigators;
• Harbor police;
• Lawful business owners in their places of business;
• Federal agents or law enforcement officers;
• A money transporter or authorized security guard;
• You were legally carrying a firearm for the purpose of visiting a firing range or to go hunting, and you had kept the gun in a locked container;
• You have a concealed weapon permit. Concealed Weapon Permit, a.k.a. Carrying Concealed Weapon (CCW) License: Carrying Concealed Weapon (CCW) License.

Defenses to Carrying a Loaded Firearm Charge

Several defenses are available to the charges of carrying a loaded firearm in California. They include:

Illegal Search and Seizure

At times, the police could discover your firearm through an illegal search. For example, this would happen if they search without a valid warrant, probable cause, or lack of exigent circumstances.

If the law enforcers obtained evidence via an unlawful or unreasonable search and seizure, then the judge can exclude that evidence from your criminal case. As a result, your charges of carrying a loaded firearm could be dismissed or at least reduced.

See Motion to Dismiss (California Penal Code section 995: California Penal Code section 995);Motion to Suppress Evidence (California Penal Code section 1538.5: California Penal Code section 1538.5); and

Fourth Amendment to the U.S. Constitution: Fourth Amendment to the U.S. Constitution.

You Were Carrying the Loaded Firearm for Self-Defense

According to California’s self-defense statute, you can carry a loaded gun if you think you or people close to you are facing imminent harm. Therefore, you can argue that it was necessary to carry a firearm in response to this imminent harm.

See Possession of Firearm by Person Prohibited by Statute: Self-Defense”: CALCRIM Number 2514; and

“Right to Self-Defense or Defense of Another — Non-Homicide”: CALCRIM Number 3470.

You Were Not Aware that You Were Carrying a Firearm

Under California law, you cannot be guilty of violating Penal Code section 25850 if you did not know that you were carrying a loaded firearm. You would obviously use this defense if you were not carrying the gun on your person (or in your vehicle).

For example, a police officer checks your backpack and finds a loaded firearm in the backpack’s front zippered pocket. You realize that you accidentally carried your father’s backpack. In this case, you cannot be guilty of violating Penal Code section 25850.

You Were Not Carrying the Firearm in a Public Place

A public place is any place accessible to the public and open to general use. You can’t be guilty of violating Penal Code section 25850 if you carry the firearm in a private area. For example, the police can arrest you in your home’s parking area, and upon checking, they find you with a loaded firearm. Your home parking area is not a public street in an incorporated city. In this case, you are not guilty of violating Penal Code section 25850.

The Firearm was not Loaded

According to Penal Code § 25850, you cannot be guilty of this statute if you carry a firearm that is not loaded. However, if the police discover an unloaded gun on your person or in your vehicle, you could be guilty of violating Penal Code § 26350, which prohibits carrying a firearm, even if the gun is not loaded, in a public place.

See Carrying an Exposed and Unloaded Handgun in a Public Place or in a Vehicle (California Penal Code section 26350: California Penal Code section 26350);

Brandishing Firearm: Misdemeanor – Public Place (California Penal Code section 417(a)(2)(A): California Penal Code section 417(a)(2)(A)); and

“Brandishing Firearm: Misdemeanor – Public Place — Pen. Code § 417(a)(2)(A)”: CALCRIM Number 984.

You will also not face the charge if you were carrying a gun and ammunition in different parts of your bag or vehicle. Since the firearm is not in a firing position, you are not guilty of carrying a loaded gun.

You Had No Knowledge that You Were Carrying a Loaded Firearm

At times, you could be carrying a firearm without knowing it is loaded. For example, this could happen if someone else loads your firearm and places it in your vehicle. In this case, you could allege a “mistake of fact” defense in that you genuinely and reasonably believed that the firearm was not loaded.

See “Mistake of Fact”: CALCRIM Number 3406.

If this argument convinces the judge, you could still face charges of carrying an unloaded firearm in public according to Penal Code § 26350.

Exempt From the Law

You are exempt from facing criminal charges under Penal Code § 25850 if you fall under the following protected category:

• Private investigators and security guards;
• Federal agents and peace officers;
• Concealed weapons permit holder;
• Members of the military;
• Legitimate hunting activities;
• P.O.S.T. Professional Certification.

According to Penal Code section 26015 and Penal Code § 26030, private investigators and security guards are not prohibited from carrying a loaded firearm, provided specific terms are adhered to.

See Carrying Loaded Firearm Exemption for Armored Car Guard (California Penal Code section 26015); and

Carrying Loaded Firearm Exemption for Licensed Private Investigator (California Penal Code section 26030).In addition, a California active or honorably retired peace officer is exempt from charges of carrying a loaded firearm according to Penal Code § 25900.

See Carrying Loaded Firearm Exemption for Active or Honorably Retired Peace Officer (California Penal Code section 25900: California Penal Code section 25900).

You are exempted from the charges for carrying a loaded firearm if you have a license to carry a concealed weapon. Similarly, military members carrying out their duties are exempt from charges of carrying a loaded firearm under Penal Code § 26000.

See Carrying Loaded Firearm Exemption for Active Military Personnel (California Penal Code section 26000).

In California, you are also allowed to carry a loaded gun while you hunt at permissible locations, according to P.C. § 26005.

See Carrying Loaded Firearm Exemption for Licensed Hunters (California Penal Code section 26005).

Additionally, according to P.C. § 26035, if you are a zookeeper, harbor control officer, or animal control police, you are exempted from the charges of carrying a loaded firearm.

See Carrying Loaded Firearm Exemption for Zookeeper, Harbor Control Officer, or Animal Control Officers (California Penal Code section 26035).

However, you are only eligible for this exemption if you have completed a regular course in firearm training approved by the Commission on Peace Officer Standards of Training (P.O.S.T.).

However, you must carry your firearm in a locked box to and from these locations.