Penal Code § 26350 PC – Open Carrying an Unloaded Firearm

California maintains some of the nation's strictest firearm regulations, prohibiting open carry in public spaces under almost all circumstances.

Unlike states that permit open carry, California Penal Code § 26350 PC makes it illegal to openly carry an exposed and unloaded handgun on your person or inside a vehicle in any public place.

Violating PC 26350 is a serious misdemeanor offense that can lead to up to a year in county jail, thousands of dollars in fines, and a permanent criminal record. Understanding how this law is defined, its strict exceptions, and available legal defenses is essential if you face open carry charges in California.

Legal Definition: PC 26350

A person is guilty of openly carrying an unloaded handgun when that person carries upon his or her person an exposed and unloaded handgun outside a vehicle while in or on... a public place or public street in an incorporated city... or inside or on a vehicle, whether or not on his or her person, while in or on a public place or public street. — California Penal Code § 26350 PC

Key Statutory Definitions

Understanding these legal terms is vital because the prosecution must prove that each term applies to your situation to secure a conviction under PC 26350.

Handgun: Any pistol, revolver, or firearm capable of being concealed on a person's body. This includes any device designed as a weapon that expels a projectile through a barrel by explosion or combustion and has a barrel length of less than 16 inches. (Rifles and shotguns fall under separate statutory rules.)
Unloaded Firearm: A firearm that does not contain unexpended ammunition or live rounds in the chamber, cylinder, or attached magazine.
Exposed Carry: Visible display of the firearm on your person (such as in an open belt holster) or openly displayed inside or on a motor vehicle.
Public Place or Public Street: Any location or roadway reasonably accessible to the general public without physical barriers. This includes sidewalks, public parks, streets, public parking lots, and government buildings. Private property generally does not qualify.

What Must Be Proven to Convict (CALCRIM No. 2530)

Under California Judicial Council Criminal Jury Instructions (CALCRIM No. 2530), the prosecution must prove the following elements beyond a reasonable doubt:

The defendant carried an exposed and unloaded handgun on their person or inside/on a vehicle.
The defendant knew they were carrying the handgun.
The act occurred in a public place, on a public street in an incorporated city, or in a prohibited unincorporated area.

Penalties for Penal Code § 26350 PC

California Penal Code § 26350 PC is prosecuted as a misdemeanor offense. If convicted, the penalties include:

County Jail Sentence: Up to 1 year in local county jail.
Court Fines: Maximum fine of $1,000 per firearm carried illegally (e.g., carrying two exposed, unloaded handguns can double fines up to $2,000).
Combined Offenses (Ammunition Penalty Enhancements): If you carry an exposed, unloaded handgun and simultaneously possess immediate ammunition capable of being fired from that weapon while not being the lawful owner, mandatory jail time and enhanced fines apply.
Summary Probation: Up to 1 to 3 years of informal probation in lieu of serving full jail time.
Collateral Consequences: A conviction creates a permanent criminal record and can potentially result in the revocation or denial of CCW permits and negative background check reports.

Potential Defense Strategies

Defending against an open carry charge requires identifying weaknesses in the state's case or demonstrating an explicit legal exemption under California law. Standard defense arguments include:

Valid Statutory Exception / Authorized Exemption: California law provides specific exemptions allowing certain individuals to carry an unloaded handgun. You are exempt if you:
- Hold a valid Concealed Carry Weapon (CCW) permit.
- Are an active or honorably retired peace officer or active military personnel.
- Are engaged in target shooting at an authorized range or hunting with a valid license.
- Are attending a licensed gun show, gun repair shop, or pawn shop for legitimate business.
- Are a licensed dealer, manufacturer, common carrier employee (e.g., airline cargo), or using the gun as an official movie/TV prop.
Not in a Public Place: You were on private property or within a private structure or vehicle setting not open or accessible to the public.
Unlawful Search and Seizure (Fourth Amendment Violation): If law enforcement stopped, searched, or detained you without reasonable suspicion or probable cause, any seized evidence may be suppressed in court under a Motion to Suppress Evidence (Penal Code 1538.5 PC), forcing the prosecutor to drop the charges.
Lack of Knowledge: You were unaware the firearm was in your vehicle or on your property (e.g., borrowing someone else's car without knowing a gun was openly resting inside).

Case Examples

Example 1 (Open Carry at a Shopping Mall): A person walks into a public shopping center wearing an exposed, unloaded pistol in a hip holster. Because it occurs in a public place, PC 26350 applies.
Example 2 (Exposed Gun in a Motor Vehicle): A driver places an unloaded revolver openly on the passenger seat while driving down a public street. Because the handgun is exposed inside a vehicle on a public road, PC 26350 applies.
Example 3 (Private Property – Defense Applies): A property owner carries an exposed, unloaded handgun while walking on their fenced private ranch. Because the area is private property not accessible to the public, PC 26350 does not apply.

Related CA Laws

Understanding related legal statutes is critical because prosecutors frequently file multiple charges depending on whether the weapon was concealed, loaded, or possessed by a prohibited person.

California Penal Code § 25850 PC – Carrying a Loaded Firearm in Public: Applies to carrying a loaded firearm on your person or in a vehicle in a public place, carrying harsher misdemeanor or felony wobbler penalties.

California Penal Code § 25400 PC – Carrying a Concealed Firearm: Prohibits carrying a concealed firearm on your person or inside a vehicle without a valid CCW permit, regardless of whether it is loaded.

California Penal Code § 417 PC – Brandishing a Weapon or Firearm: Covers drawing, exhibiting, or displaying any firearm in an angry, rude, or threatening manner during a dispute.

California Penal Code § 29800 PC – Felon in Possession of a Firearm: Prohibits individuals with prior felony convictions (or specific misdemeanor convictions) from owning, purchasing, or possessing any firearm.

California Penal Code § 16590 PC – Manufacturing, Selling, or Possessing Generally Prohibited Weapons: Outlaws the manufacture, sale, or possession of specific illegal weapons, such as short-barreled shotguns, brass knuckles, or switchblades.

Frequently Asked Questions (FAQs)

Reviewing these common questions addresses critical legal nuances and clarifies your legal rights under California firearm laws.

Is open carrying an unloaded firearm a felony or misdemeanor in California?

Carrying an exposed, unloaded handgun under Penal Code 26350 PC is a misdemeanor offense punishable by up to one year in county jail and fines up to $1,000 per gun.

Does Penal Code 26350 PC apply to rifles and shotguns?

No. PC 26350 specifically regulates handguns (pistols and revolvers). Separate statutes govern open carry of long guns (rifles and shotguns), such as Penal Code 26400 PC.

Can I legally carry an unloaded handgun in my car?

You cannot carry an exposed, unloaded handgun openly in your vehicle on a public street. However, California law allows handguns to be transported inside a motor vehicle if the firearm is unloaded and locked inside a secure container or the car's trunk.

What happens if I carry ammunition at the same time as an unloaded handgun?

If you openly carry an unloaded handgun while possessing matching ammunition on your person and you are not the lawful owner of the firearm, you face enhanced prosecution and mandatory sentencing under PC 26350(b)(2).

Does a valid California Concealed Carry Weapon (CCW) permit protect me under PC 26350?

Yes. Individuals holding a valid CCW permit issued under California law are legally exempt from PC 26350 open carry restrictions while acting within the scope of their permit.

The Esfandi Law Group in Los Angeles can help you. Schedule your free consultation at (310) 274-6529 or use the contact form.

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