In California, it is a criminal offense to carry a concealed firearm unlawfully – for example, without a valid CCW (carrying a concealed weapon) permit. A violation of this statute can result in either misdemeanor or felony charges, depending on the facts of the situation and whether the accused has a prior criminal history.
Unfortunately, access to CCW permits is extremely limited to residents of Los Angeles, due to the policies of the Los Angeles County sheriff, who has final approval on all CCW applications as per state law.
As specified by California Penal Code 25400, it is a crime for an individual to unlawfully carry a concealed firearm (gun). For the purposes of this statute, “concealed” includes firearms that are only partially concealed or hidden, as well as the outline of a firearm against one’s body. Further, the concealed firearm need not be loaded or operable to violate this law.
It is also important to note that the weapon need not be concealed on one’s body – a firearm improperly carried in one’s vehicle – or even concealed on the body of another person in the vehicle – can constitute a violation of this law.
Elements of the crime of carrying a concealed firearm
In order for a prosecutor to obtain a conviction for a violation of 25400 PC, all of the following elements must be proved:
- The defendant was in possession of a pistol, revolver, or other concealable firearm on their person or in their vehicle.
- The defendant was aware of the firearm’s presence.
- The firearm was concealed.
- The defendant did not have a valid concealed carry permit.
As defined by California Penal Code 16520, a firearm is a gun such as a revolver, semi-automatic pistol, shotgun, or rifle, as well as any device designed to expel (shoot) from a barrel, a projectile via an explosion or combustion. Pellet or BB guns are not powered by explosive force or combustion, and are not included in this definition. However, according to court precedent (People v. Heffner 1977, 70 Cal. App. 3d 644), Taser weapons – even though their projectiles are propelled by compressed gas – are considered firearms.
For the purposes of law, being on one’s person means concealment inside clothing — such as a jacket or pants waistband — but also applies to firearms carried in a purse, backpack, or briefcase, for example.
Criminal penalties for carrying a concealed firearm
25400 PC is a wobbler, meaning that it can be charged as either a misdemeanor or felony. For a misdemeanor conviction, the defendant can be sentenced to any or all of the following sanctions:
- Up to six months in county jail.
- A fine not to exceed $1,000.
A felony conviction under 25400 PC is punishable by any or all of:
- 16 months to three years in county jail.
- One year in county jail and probation.
- A fine not to exceed $10,000.
Determination of whether a violation of 25400 PC results in a misdemeanor or felony charge is made at the prosecutor’s discretion and depends on the circumstances of the offense, such as whether the firearm was loaded, as well as the defendant’s prior criminal history.
However, 25400 PC states that the defendant shall be prosecuted for a felony offense if there are specific aggravating circumstances such as a prior conviction for a felony or any violent offense listed in 29905 PC, knowledge that the firearm in question was stolen, active participation in a criminal street gang, and several other qualifiers. These or other circumstances can increase a defendant’s sentence from three to six months per additional count. Further, defendants who are in the U.S. without legal authorization may be subjected to deportation following a conviction under this statute.
A conviction for unlawful carry of a concealed firearm carries significant penalties. The facts and circumstances of every alleged offense are different, and it is vital to seek appropriate advice from a qualified attorney. There are a number of potential legal defenses to a charge under 25400 PC, including:
- Lack of knowledge of the presence of the firearm.
- The firearm was locked in another container or in the vehicle’s trunk.
- Lawful possession of a firearm in one’s home or place of business.
- Possession of a legal concealed carry license or permit.
- Unlawful search and seizure/Fourth Amendment violation.
- Police misconduct.
Some individuals are also exempt from 25400 PC in certain circumstances. These include:
- Licensed firearms dealers (FFLs).
- Police or other peace officers.
- Federal agents.
- Security officers.
- Members of the military.
- Bank guards.
- Licensed hunters who are going or have been hunting.
- Shooting club members while on the club’s premises.
Obtaining a Concealed Carry Permit (CCW) in Los Angeles
As of this writing, 40 states allow the carry of concealed firearms without a permit (so-called “constitutional carry”), or shall issue a concealed carry permit to any resident (and in some cases, non-residents) who comply with specific qualifications, not unlike obtaining a driver’s license.
California is one of 10 states that “may” issue a concealed carry permit to residents under certain circumstances. In California’s case, the permit will only be issued if the applicant has “good cause” which justifies granting the permit. Whether the applicant’s good cause is good enough is up to the chief law enforcement officer – typically the county sheriff – of the county in which the applicant resides.
The latitude afforded to county sheriffs to approve permit applications has led to unequal access to CCW permits for residents of California. Some counties are well known as operating on a “shall issue” basis, where permits are available to anyone who can meet stated qualifications. In contrast, Los Angeles County is regarded as virtually a “no issue” jurisdiction, where a CCW permit is extremely difficult to obtain. While the county of Los Angeles does not make records of CCW permits issued available to the public, it is generally believed that the vast majority of permits are granted to celebrities, political figures, and other high-profile and politically connected individuals.
This seemingly inconsistent application of state law has given rise to challenges of the constitutionality of California law. The Ninth Circuit recently upheld the constitutionality of 25400 PC in Peruta v. County of San Diego—along with Richards v. Prieto—en banc, giving gun owners in places like Los Angeles and San Francisco a glimmer of hope.
But after an appeal by California Attorney General Kamala Harris, the appellate court revisited the cases and concluded on June 9, 2016 in a 7 – 4 decision that the Second Amendment does not afford individuals the right to carry a concealed firearm, and cities and counties have the legal standing to regulate the process and requirements for issuing concealed permits.
Even though Peruta applied to San Diego County and Richards to Yolo County, the cases have achieved precedent status throughout the state and many other counties – including Orange County — have chosen to follow accordingly, providing residents with greater access to concealed carry permits.
Despite promises by gun rights organizations to appeal the appellate court decision to the U.S. Supreme Court, experts assert that since the Ninth Circuit has now ruled similarly to other appellate circuits across the country, there is little chance that the Supreme Court would hear the case. So unfortunately, relief for Los Angeles residents interested in protecting themselves with a concealed firearm in the face of rising crime doesn’t appear to be coming anytime soon.