Penal Code 26350 PC - Openly Carrying an Unloaded Handgun
Given California's strict regulations regarding the ownership and use of guns, it stands to reason that this state is not an "open carry" state.
That means you cannot walk around in public with a gun openly displayed on your person, even one that isn't loaded.
Penal Code 26350 PC is the specific California statute that makes it a crime to carry an unloaded handgun in a public place openly or in a vehicle. If you're convicted of this crime, you could face up to one year in county jail.
PC 26350 says, “a person is guilty of openly carrying an unloaded handgun when they carry upon their person an exposed and unloaded handgun outside a vehicle while in a public place or public street, a prohibited area in a city, county, incorporated area, or inside or on a vehicle, whether or not on their person. A violation is punishable by a fine and imprisonment up to one year.”
To prove a defendant is guilty under this statute, prosecutors must prove all the elements of the crime, including that they openly carried an exposed or unloaded handgun on their person or inside a vehicle while in a public place.
In context, a handgun is a pistol, revolver, or any firearm capable of being concealed on someone's body. This applies to any device designed to be used as a weapon where a projectile is expelled through a barrel by explosion or another type of combustion, and the barrel is less than 16 inches long.
A handgun means any pistol, revolver, or firearm that is capable of being concealed by a person. A “public place” is reasonably accessible without a barrier. Let's review this state law further below.
What the Law Says
PC 26350 specifically prohibits openly carrying an unloaded handgun, whether on your person or inside your vehicle, in any public place or on a public street. For prosecutors to obtain a conviction under this law, they must demonstrate three things:
- You had a handgun that was visible and unloaded;
- You carried the handgun visibly on your person or openly in or on a vehicle, and
- You were in a public setting at the time.
Between the wording of the law itself and the court's interpretation of the law, the following definitions are key:
- As noted, a "handgun" refers to any pistol, revolver, or firearm capable of being concealed on your person. It does not include a long gun, such as a rifle or shotgun.
- A "public place" or "public street" is any place that is reasonably open and accessible to the public, whether it's a building, park, street, sidewalk, or open space. It is not exclusively areas defined as "public property"—it can be anywhere the public can reasonably go.
It should be noted that while PC 26350 is limited to the open carrying of unloaded handguns, this does not suggest that it's legal to carry a loaded or concealed weapon. These behaviors are also crimes under other laws, typically carrying more severe penalties.
What Are the Exceptions to PC 26350?
There are several exceptions to the prohibition against openly carrying an unloaded handgun. You can lawfully carry an unloaded handgun if:
- You're hunting in an approved area with a valid license;
- You're practicing at a shooting range;
- You're at a gun show;
- You're an active or honorably retired peace officer;
- You're an active member of the military;
- You're authorized to carry a weapon as an employee of a "common carrier," such as an airline;
- You're a licensed dealer or manufacturer of firearms;
- You work at a gun repair shop or pawn shop;
- You're involved in the production of a movie/TV show or other types of entertainment (e.g., the gun is a prop); or
- You have a valid concealed weapons permit.
What Are the Related Crimes?
- Carrying a loaded firearm in public as defined under Penal Code 25850 PC: Similar to PC 26350, except the weapon in question is loaded and includes any gun, not just handguns;
- Brandishing a weapon or firearm as defined under Penal Code 417 PC: Pulling out or displaying a weapon aggressively or threateningly.
- Carrying a concealed firearm as defined under Penal Code 25400 PC: Similar to PC 26350, except the weapon is concealed and includes any firearm;
- Felon in possession of a firearm as defined under Penal Code 29800 PC: it is a crime for a convicted felon to own or possess a firearm;
- Manufacturing, selling, or possessing a dangerous weapon as defined under Penal Code 16590 PC;
- Criminal storage of a firearm as defined under Penal Code 25100 PC;
- Selling firearms without a license as defined under Penal Code 26500 PC.
- Possession of a silencer as defined under Penal Code 33410 PC.
What Are the Penalties for Violations?
Violating PC 26450 is a straight misdemeanor offense. If convicted of this crime, you could up to 1 year in jail and a fine of $1000 per handgun you were openly carrying. For example, if you were carrying three handguns illegally, the penalty could be tripled to 3 years and $3000.
The fine and the jail time automatically apply if you were carrying ammunition on your person along with the unloaded weapon.
What Are the Defenses for PC 26350?
The good news is that there are several defenses to a charge of openly carrying an unloaded handgun in violation of PC 26350. The most common defenses attorneys use are discussed below.
Perhaps we can argue that you qualified for one of the abovementioned exceptions. For example, you have a valid concealed weapons permit; you're a peace officer, you were at a gun show, etc.
Perhaps we can argue that you were not in a public place. For instance, you were on your private property or inside a vehicle not parked on a public street, not a place where the public could reasonably go.
Perhaps we can argue that the police performed an unlawful search and seizure. If the gun was found as a result of an unconstitutional search, the resulting evidence is not admissible in court, and it may be possible to get the charges dismissed.
If you were accused of weapons charges, contact us to review the case details and legal options. Eisner Gorin LLP is based in Los Angeles, California. Contact our law firm via phone or fill out the contact form.