Negligent Discharge of a Firearm

Even anti-gun Hollywood celebrities like to pose for photos with guns if it can earn them a buck. So it’s no wonder that many gun owners and enthusiasts emulate this behavior and treat real firearms as though they were harmless movie props.

negligent discharge of a firearm - long beach criminal defense lawyer
negligent discharge of a firearm – long beach criminal defense lawyer

But clowning around with a gun is a recipe for disaster. Almost everyone who has unintentionally fired a gun thought it was unloaded. Failure to handle firearms properly is a leading cause of negligent discharges, which are a crime in California under 246.3 PC.

The negligent discharge of a firearm is a crime according to California Penal Code section 246.3.

This statute makes an important distinction between ordinary negligence and gross negligence. Gross negligence includes actions that a reasonable person would recognize as likely to lead to serious bodily injury or death. A grossly negligent act involves reckless indifference or conscious disregard for the safety of others. Discharging any type of firearm or projectile-firing weapon around other people is automatically grossly negligent because of the possibility of another person’s injury or death.

Thus, all accidental firings of firearms do not necessarily meet the threshold of negligence required for a violation of 246.3 PC.

For example, if Hector is taking photos of Mike with his firearms collection and Mike strikes an action pose, pulling the trigger and firing a round into the ceiling of his apartment, Mike could potentially be charged with a violation of 246.3 PC.

However, if Vince is alone at his house, cleaning his guns after a trip to the target range and accidentally fires a round that he didn’t realize was still chambered in his pistol, he would likely not be charged with an unlawful negligent discharge.

Elements of the crime

In order to obtain a conviction under 246.3 PC, the prosecution must prove all of the following elements beyond a reasonable doubt:

  1. The defendant fired a firearm, pellet gun, or BB gun.
  2. The defendant acted intentionally and/or willfully, and with knowledge that the gun was loaded.
  3. The defendant’s actions were grossly negligent.
  4. The defendant’s actions could have resulted in another’s injury or death.

Unlike some other California gun laws, 246.3 PC includes pellet guns, BB guns, and any other gun that fires a projectile by pressurized gas, air, or via spring action. However, the negligent discharge of a BB or pellet gun is charged as a misdemeanor. The negligent discharge of other firearms is a wobbler that can be charged as either a misdemeanor or a felony.

Related offenses

Related offenses that may be charged in conjunction with a violation of 246.3 PC include:

  • Brandishing a weapon, 417 PC
  • Drive-by shootings, 26100 PC

Criminal penalties for negligent discharge of a firearm

As mentioned, violation of 246.3 PC is a wobbler. The negligent discharge of a pellet or BB gun is a misdemeanor. But discharging a handgun, rifle, or shotgun could potentially result in felony charges.

A misdemeanor conviction of negligently discharging a firearm can carry any or all of:

  • Up to one year in county jail.
  • A fine not to exceed $1,000.
  • Probation.

Individuals convicted of felony negligent discharge of a firearm may be sentenced to any or all of:

  • 16 months to three years in county jail (as per California’s realignment law)
  • A fine not to exceed $10,000.
  • Probation.
  • The possibility of a strike under California’s Three Strikes law
    • A second felony would result in a double sentence
    • A third strike could amount to a sentence of 25 years to life in state prison.

Sentencing enhancements are also applicable under the state’s Gang Enhancement Law (186.22 PC),  if the defendant negligently fired a firearm while acting in association with a gang with the intent to “promote, further, or assist in criminal conduct.” This enhancement can result in a sentence of an additional two to four years in state prison.

For non-U.S. citizens, conviction under this or any gun crime may result in deportation.

Legal defenses

Only a qualified attorney can provide appropriate legal advice to a person charged with a crime. However, some of the most common legal defenses to a charge under 246.3 PC are:

  • The defendant acted in self-defense.
  • The defendant didn’t act intentionally.
  • The defendant honestly and reasonably believed that the gun was not loaded.
  • There was no likelihood of injury or death.