Taking a Firearm from a Police Officer in California (Penal Code 148d PC)

In California, Penal Code 148(d) PC criminalizes attempting to seize a firearm from a police officer (or other public officer) while they are performing their official duties.

This offense requires specific intent and an actual, though unsuccessful, effort to take the weapon.

Penalties can be upgraded to felonies if the attempt is successful or if the individual has prior offenses, often resulting in additional charges such as battery on an officer.

In California, resisting arrest or obstructing the performance of a peace officer's duties is a serious enough offense--but when you're accused of trying to disarm the officer in the process, the stakes go much higher because of the inherent danger to public safety.

Key Takeaways

• California Penal Code 148d PC makes it a serious crime to attempt to take or remove a firearm from a peace officer while engaged in their lawful duties. If you're convicted of this crime, depending on the circumstances, you could face several years in prison.
• Penal Code 148(d) PC criminalizes removing or trying to remove a firearm from a public officer, especially when done with the intent to take the weapon.
• This law mandates a direct action to remove the weapon, such as touching it or making a move toward it, but this action is ineffective.
• Prosecution hinges on key elements such as intent, which requires proving you specifically intended to take the gun, performing a direct act like touching the firearm, and the officer actively performing their duties.
• Basically, attempting to take a gun from a police officer in California results in serious felony charges, such as resisting arrest, because of the significant risk to public safety.

What Does PC 148d Say?

California Penal Code 148d says, “(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 their 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 defendant unfastened the officer's holster strap.

(2) The firearm was partially removed from the officer's holster by the defendant.

(3) The defendant released the firearm safety.

(4) An independent witness corroborates that the defendant stated that they intended to remove the firearm, and the defendant actually touched the firearm.

(5) An independent witness corroborates that the defendant actually had their 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.”

Penal Code 148d - Explained

Under Penal Code 148d PC, it is illegal for any person to remove, take, or attempt to remove or take a firearm from the person or immediate presence of a public or peace officer in the process of performance of their lawful duties.

The law specifies that this act does not require intent to permanently deprive the officer of the weapon (i.e., to steal it). The core of the offense is the attempt itself, which creates an inherently dangerous situation for the officer and the public.

For a prosecutor to charge someone under this statute, they must demonstrate that the defendant had the "specific intent" to take the firearm. This means the action must have been deliberate and purposeful, not accidental.

What are Some Examples?

EXAMPLE 1: During a tense protest, an individual reaches out and unsnaps a police officer's holster strap to grab their service weapon. Even if the individual fails to take the gun, unfastening the holster demonstrates a specific intent to take the firearm and could result in charges under PC 148d.

EXAMPLE 2: While being arrested for shoplifting, a person struggles with an officer, causing the officer's firearm to fall to the ground. The suspect then lunges for the weapon on the ground. Although they fail to pick it up, this action constitutes an attempt to take the firearm, in violation of Penal Code 148d.

What the Prosecution Must Prove

To secure a conviction under PC 148d, the prosecution must prove beyond a reasonable doubt that you had the specific intent to remove or take the firearm from the officer.

The statute itself provides a list of direct, though ineffectual, acts that can be used to establish this intent. The prosecution merely needs to show that one of the following occurred:

• You unfastened the officer's holster strap.
• You partially removed the firearm from the officer's holster.
• You released the firearm's safety mechanism.
• An independent witness corroborates that you stated an intent to remove the firearm and actually touched it.
• An independent witness corroborates that you had your hand on the firearm and tried to take it from the officer.
• Your fingerprints were found on the firearm or holster.
• Physical evidence, authenticated by a scientifically verifiable procedure, shows you touched the firearm.
• During a struggle, the officer's firearm fell, and you attempted to pick it up.

Penalties for a PC 148d Violation

A violation of Penal Code 148d PC is a "wobbler" offense in California. This means the prosecutor has the discretion to charge it as either a misdemeanor or a felony, depending on the specifics of the case and the defendant's criminal history.

• As a misdemeanor, a conviction can result in up to one year in county jail.
• As a felony, a conviction can lead to imprisonment for 16 months, two years, or three years.

The decision to charge the offense as a felony or misdemeanor often rests on factors such as the degree of force used, whether the officer or anyone else was injured, and any prior criminal record you may have.

Common Legal Defenses

A skilled California criminal defense attorney can raise several defenses to challenge a charge under Penal Code 148d. The appropriate strategy will depend on the unique facts of the case. Common defenses include:

• Lack of Intent: The defense may argue that any contact with the officer's firearm was accidental or unintentional. For example, during a physical struggle, you may have inadvertently touched the weapon without any specific intent to take it.
• Mistaken Identity: In chaotic situations involving multiple people, a witness or the officer might misidentify the person who attempted to take the firearm. The defense could use evidence like alibis or witness testimony to show you were not the person who committed the act.
• Insufficient Evidence: The defense can challenge the prosecution's case by arguing that there is not enough evidence to prove guilt beyond a reasonable doubt. This may involve questioning the validity of fingerprint evidence, the credibility of witnesses, or the interpretation of events.

In summary, if you are under investigation or arrested for resisting arrest or taking a weapon from a police officer, contact Eisner Gorin in Los Angeles at 818-781-1570 for a case evaluation.