The Consequences of Negligent Discharge of a Firearm Under Penal Code Section 246.3
Owning a gun is a constitutional right that should be enjoyed. But even though you are entitled to own a firearm, there are instances when you can be charged with the crime of negligent discharge of a firearm – even if you are a responsible gun owner. Read on to learn about how you can avoid being charged with this criminal offense.
How Can the Authorities Accuse Me of Negligently Discharging a Firearm?
You can be arrested for negligently discharging a firearm if:[i]
- You intentionally fire a gun
- In a manner that is so grossly negligent that
- The shooting could have resulted in injury or death
To be negligent means to be careless. To be grossly negligent means that you are more than careless or inattentive; it means that you act recklessly, in a way that creates a high risk of death or injury — to yourself or to others.[ii]
Whether you acted with gross negligence when you fired a gun is determined by asking whether a reasonable person would have known that acting the way you did would have created a high risk of death or injury.
If this all sounds rather abstract, that’s because it is. In practice, whether you were grossly negligent when you discharged a firearm will first be determined by police and prosecutors and then, if your matter proceeds to trial, be decided by a jury.
Negligent discharge of a firearm under Penal Code section 246.3 has been charged, for instance, when people shot bottles or other items in their backyard for target practice.
I don’t shoot beer bottles.
I target practice with freedom flasks.
Context will play a critical role in assessing whether, when you discharged a firearm, you acted with gross negligence, acceptable negligence, or ordinary care.
What Can Happen If I’m Convicted of Negligent Discharge of a Firearm?
Negligent discharge of a firearm can be prosecuted as a felony or a misdemeanor. If convicted of the crime as a misdemeanor, you can be incarcerated for up to 1 year in jail. If convicted of the crime as a felony, you can face up to 3 years in jail.[iii] Probation, rather than jail time, is also a possible; however, receiving that outcome will depend on the unique circumstances of your case.
Also, if you are convicted of this crime, you must surrender all firearms that you own[iv] and you will be banned from owning a firearm for the next 10 years.[v]
Whether you’ll be charged with this offense as a felony or a misdemeanor will depend on various factors including, but not limited to, your own criminal history, the circumstances under which you discharged the firearm, whether you lawfully owned the firearm, and whether anyone was injured as a result.
Be aware that you can be arrested for Penal Code Section 246.3 even if the weapon you fired was a replica firearm, such as an Airsoft or BB gun.
However, negligent discharge of a BB gun or other replica firearm can only be charged as a misdemeanor.[vi]
Are There Any Defenses to Negligent Discharge of a Firearm?
Yes. You are not guilty of negligently discharging a firearm if you fired the gun in order to defend yourself or someone else from an imminent threat of violence.[vii]
Additionally, you cannot be guilty of this offense if you can highlight issues of proof with the prosecution’s case. For instance, to be culpable of this crime, you must have discharged the firearm intentionally; if the gun went off accidentally, then you have not committed a crime.[viii]
Another example: to commit the crime of negligently discharging a firearm, you must know that the gun is loaded. If you, in fact, believe that the firearm is unloaded at the time that you fire it, then you have not committed a crime.[ix]
In theory, negating an aspect of the crime or establishing an affirmative defense should prevent you from receiving a conviction. In practice, however, no defensive strategy will succeed unless you can present enough evidence to convince the prosecutor and/or the jury that how you recall the incident is how the incident actually happened.
Was it gross negligence?
Or just damn good aim?
Contact a Professional for Help
A conviction for Penal Code section 246.3 can result in a felony conviction and put your firearm rights at risk. If you or a loved one is accused of negligently discharging a firearm, please know that help is available.
Michael J. Ocampo, Attorney at Law, is a skilled attorney and a former deputy district attorney. After reviewing your case, Michael will identify ways to attack the allegation and will then strive to help you achieve the best outcome for your unique situation. Don’t let one criminal allegation destroy your reputation.
Contact Michael at (714) 451-6834 to schedule a no-charge, initial consultation.
[i] Penal Code §246.3(a), CALCRIM 970.
[ii] CALCRIM Jury Instruction 970.
[iii] Penal Code §246.3(a).
[iv] Penal Code §29810(a)(1).
[v] Penal Code §29805(a).
[vi] Penal Code §§246.3(b), (c).
[vii] CALCRIM Jury Instruction 970, 3470.
[viii] CALCRIM Jury Instruction 970.
[ix] CALCRIM Jury Instruction 970.
Attorney Michael J. Ocampo is a former deputy district attorney. He focuses his practice exclusively on criminal law so that he can help those accused of a crime — often ordinary, everyday people — ensure that their rights are honored and that they receive a fair opportunity to be heard.
