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Negligent Discharge of a Firearm Attorney

The negligent discharge of a firearm is an offense in California under PC 246.3. What that section of the Penal Code says is that anyone who willfully discharges a firearm or BB device in a manner that is grossly negligent is guilty of a crime. It is generally a wobbler and can therefore be charged as a misdemeanor or a felony. Note, however, that if the firearm is a “BB device” (as defined in the statute), the charge will be a misdemeanor.

At first glance, you might conclude that the law is aimed at accidental shootings. But a closer look demonstrates that there is a significant difference between firing a gun accidentally and firing negligently. At CBS Law, we have experience defending clients accused of various gun crimes, and we understand the subtle differences in statutory language. Contact us if you have been accused of negligent discharge or any other gun crime.

Accidental vs. Negligent Discharge of a Gun

As noted above, there is a major difference between an accidental shooting and the negligent discharge of a gun. Accidents can happen without any intent to do anything, including to discharge a firearm. The law begins, however, by stating that you commit an offense if you “willfully” discharge a gun. Accidents, including discharging the weapon because someone bumped into you, or because of any action that you did not specifically intend, are not within the scope of the statute.

Furthermore, a willful discharge of a firearm, in and of itself, will not constitute an offense under the statute, unless it was done in a “grossly negligent” manner, which could lead to death or injury. The law does not require that someone be killed or injured as a result of the discharge of the gun, only that the willful discharge was grossly negligent and “could” lead to injury or death.

What is “Gross Negligence” Under California Criminal Law?

The statute refers to action that is “grossly negligent” but does not define that term. It is defined, however, in the California Criminal Jury Instructions. CALCRIM No. 970, which relates to the crime of negligent discharge, says that “gross negligence” means that you acted recklessly, creating a high risk of major injury or death, and that a reasonable person in your position would have known of that risk. The important point is that gross negligence is more than merely careless behavior, or a mistake. It requires that you disregard or are indifferent to the risks involved.

Examples of Accidental vs. Negligent Discharge

The following examples will help to clarify the meaning of the statute, and what does or does not constitute the crime of negligent discharge of a firearm:

  • Example 1. Your gun discharges without any interaction with the trigger, for example, an older weapon that fires when it is dropped on the floor. The gun fired accidentally, there was no intent to discharge, and therefore no violation of the statute.
  • Example 2. You are at the practice range and decide to shoot in a direction not permitted under the range policies because others are practicing in that area. Your bullet strikes a person, causing serious injury. This is not an accidental discharge. It was negligent and might be found to be grossly negligent.
  • Example 3. You are holding the weapon and have no intention of pulling the trigger. If your finger is on the trigger, a discharge could be the result of being startled, or having your balance disrupted (stumbling forward or backward). Regardless of the level of negligence, there was no intent to fire the gun, and therefore no willful discharge.

You can readily see that the law is not as simple as it might first appear. This is another reason why it is important to be represented by an experienced criminal defense lawyer if you are charged with the negligent discharge of a firearm. You also want your attorney to be familiar with all defenses that may be available.

Defenses to Negligent Discharge of a Firearm

As with all criminal charges, you are innocent until proven guilty beyond a reasonable doubt. If you have been arrested for negligent discharge of a firearm, there are very specific requirements in order for the state to prove its case. Here are some of the defenses that may apply:

  • Lack of willfulness. As we have seen, the act of discharging the firearm must be “willful.” That means an accidental discharge will not satisfy the requirements of the statute.
  • Lack of gross negligence. The statute is clear that your conduct, to be a violation of this statute, must demonstrate known disregard for the substantial risks involved in discharging the weapon.
  • Illegal search and seizure. If the evidence was obtained by the government in violation of your rights, including your right to be free from illegal search and seizure, that evidence may be excluded from use at trial.
  • Lack of evidence. The prosecution must prove that the prohibited acts were committed, that they were committed by you, that you had the requisite intent, and that your actions were grossly negligence. Failure to prove any element of the offense beyond a reasonable doubt will lead to a dismissal or a not guilty verdict.

These defenses can provide the basis for a successful challenge to the charges against you.

Negligent Discharge of a Firearm Criminal Defense Lawyer

Because of the evidence necessary to obtain a conviction, including proof of your state of mind and that you acted with gross negligence, the allegations in a negligent discharge case can often be challenged successfully. At CBS Law, we represent clients charged with gun crimes. Call us to speak to an experienced criminal defense lawyer at (213) 800-8005.

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