Criminal negligence laws define criminal negligence as any type of behavior in which an ordinary, reasonable person would not engage. It can also be defined as the failure to notice the unjustifiable risks that come with some specific conduct. One type of criminal negligence in California is called “negligent discharge of a firearm.”
Negligent discharge of a firearm covers firearms as well as such other “non-lethal” devices as BB guns. In California, it is illegal intentionally to discharge a firearm with gross negligence in a manner that could cause injury or death to another person.
What Does the State Have to Prove to Convict Me of Firing a Gun in a Negligent Way?
In California, conviction of the negligent discharge of a firearm requires proof that the defendant:
- Discharged a firearm intentionally, knowing that it was loaded;
- The act was done in a grossly negligent way;
- The firing could have caused death or injury to another person.
“Gross negligence” has been defined as a failure to exercise even the slightest amount of care. Or, it often involves the deliberate disregard of the safety of other people. A person who is found guilty of gross negligence usually knew, or should have known, of the danger posed by the conduct in which they engaged.
For example, a young man may be overjoyed because his favorite professional football team has won the Super Bowl. He runs outside into the streets of his densely populated neighborhood and shoots his gun into the air. This would be considered negligent discharge of a firearm. The young man discharged his firearm intentionally and did so with gross negligence in a place where other people could have been injured or killed.
The defenses to negligent discharge of a firearm are as follows:
- Self-defense: if the person discharge the firearm because they reasonably believed that they or another person was in danger, then the person might claim self-defense;
- Gun not loaded: if the person pulled the trigger but believed that the gun was not loaded, then the crime of negligent discharge is not established’
- No actual danger of injury or death: if the person discharged a firearm in a situation in which there was no actual danger of injury or death to another person, then the crime is not established.
If the Gun Goes Off by Accident, is it Negligent Discharge?
In order to be convicted of the negligent discharge of a firearm, a person must have discharged the firearm intentionally. That means it was done on purpose. If a gun goes off accidentally, it probably would not amount to negligent discharge of a firearm.
A person cannot be convicted of the negligent discharge of a firearm for intentionally pulling the trigger of a gun if the person believed that the gun was not loaded. Circumstance in which a person could show that they reasonably believed that the gun was not loaded include:
- The gun belonged to another person;
- The defendant had not handled the gun in a long time and could have forgotten whether it was loaded;
- The person found the gun and had not yet determined whether or not it was loaded.
What If I Discharged the Firearm in a Remote Place, Can I Still Be Convicted of Negligently Discharging a Gun?
If a person fires a gun in a remote area where there are no people, they would most likely not be convicted of the negligent discharge of a firearm. The crime of negligent discharge involves creating a risk of injury or death to another person. Discharging a firearm in a remote, uninhabited area cannot create the risk of injury or death to another person.
So, for example, a person in a remote campground where there are no other campers might not be convicted of negligent discharge of a firearm for firing a gun into the air. There are no other people around who could be injured or killed, so the crime of negligent discharge has not been committed.
If however, a person discharges a gun in any situation in which other people are present, whether there is one person or many people, then there is an actual risk of injury or death and the facts justifying conviction of negligent discharge are present.
Is Negligent Discharge a Felony in California?
In California, negligent discharge of a firearm is considered a wobbler. This means that a defendant can be charged with either a felony or a misdemeanor crime. The prosecutor will look at the circumstances of the case and the defendant’s criminal history to determine whether to charge the crime as a felony or a misdemeanor.
What is the Penalty for Negligent Discharge of a Firearm?
If the negligent discharge involved a BB gun instead of a firearm, it is almost always charged as a misdemeanor. A misdemeanor conviction is punishable by probation, up to 1 year in jail, and/or a fine of up to $1,000.
Conviction of felony negligent discharge of a firearm is punishable by probation, or 16 months to 3 years in prison. In addition a fine of up to $10,000 can be imposed.
Several sentencing enhancements that apply to California crimes involving firearms do not apply to the crime of negligent discharge of a firearm.
For example, the sentencing enhancement for the personal use of a gun in the commission of a felony does not apply to negligent discharge. This enhancement applies only to crimes that do not by definition involve use of a firearm.
Also, California’s “use a gun and you’re done’” law applies only to felonies specifically identified in the law. The crime of negligent discharge of a firearm is not specified in the law.
However, defendants charged with negligent discharge can confront sentences that include gang sentencing enhancement.
Felony negligent discharge of a firearm that is committed for the benefit of, at the direction of, or in association with a criminal street gang — with the specific intent to promote, further or assist in the gang’s criminal conduct — can lead to an additional two (2), three (3), or four (4) years in prison.
Should I Seek Legal Representation to Fight this Charge?
The crime of negligent discharge of a firearm can be charged as a felony and the penalty can include a sentence of up to 3 years in state prison or a fine of up to $10,000. If a person is charged with a crime that involves the possibility of a prison sentence, the person should consult an experienced California criminal lawyer.
There are other consequences to having a criminal conviction. You might have difficulty getting a job or a professional license. These are consequences that you want to avoid.
An experienced criminal lawyer knows what the prosecution must prove to obtain a conviction and is informed about possible defenses to the charge. A lawyer can best represent you in court. It is essential to have a lawyer defend you against a charge of negligent discharge of a firearm. It gives you the best chance of successfully defending against the charge.