In California, anyone who has reached eighteen years can legally own and use a firearm as long as they follow the set California gun laws, such as guidelines on how you should use this firearm and where you can carry it. However, you could find yourself on the wrong side of the law by firing your gun in areas where you endanger other people or cause property damage. Knowing which situations can land you in court and what to do when faced with a situation where you negligently discharged your firearm is critical for firearms owners. This article will elaborate more on this topic. If there is information that you would like further professional clarification on or are looking for a criminal defense attorney, reach out to us at Leah Legal.
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Negligent Discharge of a Firearm Definition
A firearm is a weapon device that uses the force of an explosion to expel a projectile through a barrel. An example of a firearm is a pistol or hunting gun.
As per the California Penal Code 246.3, negligent discharge of a firearm is defined as willfully discharging a firearm without being authorized by law in a grossly negligent manner, which could result in injury or death of a person. It includes negligent acts such as leaving a child with or within reach of a loaded firearm, shooting at an inhabited house, or firing a gun in an event, celebration, or festivity.
Fortunately, a firearm's negligent discharge does not include the release of a gunshot by accident. You must have committed the act either willfully or knowingly for you to be convicted for this crime. Therefore, if you pull the trigger unintentionally or without knowing that the gun was loaded, you cannot be convicted under Penal Code 246.3. So, what determines if you are charged for the negligent discharge of a firearm? Here are the main elements of this criminal offense.
Elements of the Crime
Negligent discharge of a firearm is fact-specific. It largely depends on particular circumstances that led to the defendant pulling the trigger. These include the exact manner the gun was discharged, the intention behind you firing the shot, and its location. Some elements used to determine if you are guilty primarily are:
Willful/Intentionally
Willful means that the act was intended. This means that you knew that your firearm was loaded, and you meant to fire that shot.
Gross Negligence
Gross negligence means that you did the action with more than ordinary mistaken judgment, carelessness, or inattentiveness, meaning you ignored a known or obvious risk. Consequently, your act can be deemed gross negligence if you act in a reckless manner that risks bodily injury or death. It includes working in a way that shows disregard for human life or your actions’ possible consequences. Primarily, if an ordinary person would act differently from you in such a situation and show reasonable care or exercise caution, then your act is considered gross negligence.
An example of gross negligence is when you are at a party with your friends, and you decide to show them how your gun works by firing a shot in the air. In such a situation, you can be charged under Penal Code 246.3, whether there was someone injured or not. This is because you acted in negligence, posing a danger of injury to the party’s people.
However, if your friend sees your gun on the table gun and without knowing that it is loaded, he/she pulls the trigger and fires a shot, then they can argue that they were not aware that the gun was loaded. If a person discharges a firearm and they did not know that it was loaded, they cannot be charged with the crime.
Injury and Death Possibility
Another element of this charge is the possibility of the shot you fired to cause injury or death. Remember that there need not be an injured victim or death for you to be prosecuted. As long as there was a foreseeable danger, you can be charged. For instance, if you fire a firearm to get attention from a group of people, you can face charges for a firearm’s negligent discharge. Whether you shot it in the air or towards the people, the shot you fired posed a risk of injury to the people around.
However, if you are in an isolated place and you discharge your firearm, then you are reported by someone who hears the gunshot from a distance, you will not be prosecuted for negligent discharge of a firearm. This is because there was no one around. Therefore, you did not pose a risk of injury or death to anyone.
State Law Penalties of the Crime
Negligent discharge of a firearm is a wobbler crime, meaning it can fall into either a misdemeanor or felony charge under California law. Penalties depend on the circumstances leading to you discharging the firearm and whether you have a criminal record. The court can issue penalties in the form of probation periods, a jail sentence or fines, and, in some cases, both.
For misdemeanor negligent discharge of a firearm, possible penalties include a maximum county jail term of not more than one year, misdemeanor probation, or a fine of $1,000. On the other hand, a felony charge can earn you a county jail term of sixteen months, two years, or even three years, felony probation, or a fine not exceeding $10,000.
It should be noted that you can face penalties even when no one was injured after you fired a shot. It is because the law focuses on the actual offense and not the consequences of that offense. However, the charges and penalty will be less severe than if someone was injured or killed.
Additional penalties can be being prohibited from owning a firearm or revocation of a firearm license. If charged with a misdemeanor, you will lose your Second Amendment right for a decade, and for a felony charge, you will lose the right to own a firearm for life. If you were formerly denied the right to own a gun in a prior conviction and are found in possession of a weapon, you will be charged under "felony with a firearm."
California Penal Code 667 provides a law known as the Three Strikes Law. It is a provision for the enhancement of penalties for severe felony charges. A severe felony is any felony where the defendant risked inflicting fatal body injuries to another person. It states that if a defendant has one or more records of serious or violent felony conviction (includes the negligent discharge of a firearm), they will be subject to the following sentence enhancements:
- If the defendant has one such past conviction record, the punishment will be twice the penalty set for the current offense for which they are convicted.
- If the defendant has two or more prior severe or violent felony convictions, they will be subject to three times the penalty for the current offense or state imprisonment of twenty-five years.
In line with this provision, if you are convicted of a firearm's negligent discharge, it will earn you a strike on your record. A second conviction (second strike) of any similar severe or violent felony will have you face a second jail sentence.
Sentence Enhancements for Negligent Discharge of a Firearm
If you discharged a firearm and injured a person, it is essential to contact an attorney as soon as you can. Violation of Penal Code 246.3 can have you face severe or multiple related charges, such as assault with a firearm. Therefore, legal advice is critical. These additional charges may include the following.
Discharge of a Firearm which Causes Injury or Death of a Person
If you discharge a firearm, thereby leading to someone's death, you could face second-degree murder charges. California Felony Murder Rule allows you to be prosecuted if you kill someone by committing a discharge of a firearm felony crime, even when it is by accident. Involuntary manslaughter that occurred during a felony commission will earn you 15 years imprisonment in the California state prison.
An example is when a person at a party or celebration fires a gun in the moment of excitement, and the bullet hits another person in the party, killing them. The person who discharged the firearm committed involuntary manslaughter in the commission of a felony, and they will be charged with second-degree murder.
Gang Involvement
A further sentence enhancement is if the felony was committed in association with gang activity or assisting criminal acts of a group. It includes firing a gun to help a gang member escape, firing a gun because a gang member asked you, and any gang involvement when the felony occurred. It requires a two to five-year additional sentence to that of the negligent discharge of a firearm.
Immigration Consequences
Furthermore, negligent discharge of a firearm is a criminal offense it is considered as a deportable offense. If you are a non-citizen in California and you get convicted of the crime, you can be subject to deportation or inadmissibility as per the Immigration and Nationality Act. Whether you plead guilty or not to the charges, equipping yourself with an expert criminal defense attorney can help you negotiate less severe penalties or prove your innocence.
Loss of Gun Rights
When you are convicted of felony negligent discharge of a firearm, your gun rights are withdrawn. You are prohibited from possessing, receiving, or acquiring a firearm legally. If you are found in any of the stated acts, you will face necessary punishments as outlined in the law for possession of a gun with a felony conviction record.
What the Prosecutor Needs to Prove
For you to be prosecuted for a firearm's negligent discharge, your prosecutor must prove the following:
- You intentionally shot the gun
- You fired the arm with gross negligence
- There was a possibility of the shooting injuring or leading to the death of a person
- You did not act in self-defense or defense of another person
What to do if You Accidentally Discharge a Firearm
1. Assess the Situation
The first step to take if you accidentally discharge a firearm is to analyze the situation. Check whether you caused any injuries. If there is an injured person, call 911 for emergency services. Assessing the situation is critical since it helps you know if you injured someone.
Then, check that you have unloaded the gun to ensure it does not discharge again. Put it in a place where it is no longer of harm to anyone. Do not proceed to the next steps before putting away the gun safely.
2. Assess the Damages You Caused
After ensuring that everyone is safe and that no one is injured, you should check whether you caused any damages. Damages vary depending on the location where you discharge your firearm, the type of gun, and the distance you fired.
Ensure that the shot caused the actual injuries or damages; so that you are not blamed for injuries you did not create.
3. Call a Criminal Defense Attorney
If you discharge your firearm and cause damages, injuries, or death of a person, it is in your best interest to contact your attorney. You will potentially face severe charges, and getting legal guidance is critical.
4. Take Responsibility
It is essential to take responsibility if you caused any injury or damages. You can do this by offering to cater for medical care costs or replacing the losses. Not all cases of negligent discharge of a firearm have to be reported to the police. Minor cases of property damage, especially where you and the victim believe it was an accident, can be settled outside court if both parties agree.
5. Ensure You Do Not Commit the Offense Again
As much as accidents happen, if you are charged with a firearm's negligent discharge, it will have consequences whether or not it is deemed an accident. It is, therefore, in your best interest that you prevent a second occurrence. Anytime you are found with repetitive criminal offenses, your penalties become more severe, and your chances of winning in defense cases diminish.
Ensure you equip yourself with the law's requirements: the restrictions and legal rights applicable in different locations and situations.
Common Legal Defenses
If charged with a firearm’s negligent discharge, the following defenses may be used by your attorney in your defense.
You Acted in Self-Defense
In California, it is lawful to act in self-defense or defense of another where there is imminent danger of being touched unlawfully or suffering body injuries. If your attorney proves that your life was in danger or someone else's, which led to your discharging your firearm, you will be relieved of any penalties. An example is when you fire a shot in the air to scare a person or animal that is threatening your safety. It has to be evident that the force used was necessary to prevent the said danger and that the action you took was reasonable for such a situation.
You did not Know Your Action would Create a Risk
A common defense taken in cases of negligent discharge of a firearm is the defendant did not know that their action created the risk of injury or death to the people around him/her. It is possible that when you pulled the trigger, you were not aware that the gun was loaded. You can argue that you did not know that it was a loaded firearm with your attorney’s help when you discharged it. As long as you did not know the gun was loaded or intentionally pulled the trigger, you cannot be charged.
Discharge of a Firearm in an Isolated Area
If you fired the gun in an isolated area and no people were present, you could not be found guilty. However, the court can find you guilty of endangering yourself. Reasonable care is a solid defense since it will show that you did not act in negligence, and neither did you risk injuring people. You could not be charged with a firearm's negligent discharge if the shot did not pose an actual danger to someone.
The Discharge Was by Accident
Another possible defense is that the discharge of your firearm was by accident. It can happen that you pulled the trigger by accident or that your gun had a malfunction. If you can prove this, you would not have fired the shot intentionally. Without this element of the crime, there will be no conviction.
There Was no Injury or Death
Your attorney can ascertain that you practiced reasonable care when discharging the firearm not to injure anyone. This defense is suitable when no one was injured or died from the shot you fired. It can help reduce possible penalties.
Related Crimes
There are several crimes associated with the negligent discharge of a firearm. Consequently, you can find yourself facing multiple charges, depending on your case's seriousness. In turn, this will have you face additional penalties for these additional charges, as stipulated by the civil law. Some possible convictions that are in line with negligent discharge of a firearm are:
Discharging a Firearm at an Inhabited Dwelling or Car
According to California Penal Code 246, if you wilfully/intentionally discharge a gun at a rented dwelling house, occupied building, occupied vehicle or occupied aircraft, you are guilty of a felony. If convicted, you will face a penalty of state prison imprisonment or a county jail term of not less than six years and not more than a year.
Brandishing a Weapon
Penal Code 415 states that exhibiting, drawing, or using a firearm in a rude, angry, or threatening manner in the presence of another person or people, unless an act of self-defense, is a criminal offense. It often goes hand in hand with the negligent discharge of a firearm. Brandishing a weapon will have you face misdemeanor charges. Whether the gun was loaded or not, a misdemeanor charge of drawing or withdrawing a weapon is punishable by not less than thirty days of county jail imprisonment.
If the action happens in a public place and the firearm involved is small enough to be concealed, you will face a penalty of a fine not exceeding $1,000 or county jail imprisonment for not less than three months than a year. In some instances, you can meet both of the stated penalties.
Possession of an Unregistered Firearm
In line with a conviction for a firearm’s negligent discharge, you can also face possession of an unregistered firearm. In California, merely owning an unregistered firearm is not a crime. However, when you carry the gun with you beyond your home premises, work, or a public place, it becomes a crime. Therefore if you violated Penal Code 246.3, you could also be charged with this crime.
Ex-felon with a Firearm
If you had faced a felony charge that had you lose your right to own a firearm, you could be prosecuted for a gun’s illegal possession. In such a case, the conviction of a gun's negligent discharge will require you to face charges for illegally possessing a firearm.
Find a Criminal Defense Attorney Near Me
Facing any criminal charges requires the defendant to have a seasoned attorney if they want to challenge the charges against them successfully. We at Leah Legal have seasoned attorneys who can help you develop suitable defense strategies if you face charges of negligent discharge of a firearm or related charges. We serve the entire Van Nuys area and surrounding areas. Get in touch with us at 818-484-1100 for more information about how we can help you.