Negligent Discharge of a Firearm

Gun laws in California are very strict and breaking them could result in life-changing consequences. With the current political atmosphere surrounding gun violence, underestimating any allegations involving guns would not be the recommended recourse.

The crime of negligent discharge of a firearm falls under stringent regulations. One of the most important choices you can make when facing any type of firearm offense is finding the right criminal defense attorney to help.

The penalties for being convicted of violating the law under penal code 246.3 PC are harsh and can have a serious impact on your future gun rights. Discharging a firearm in an unsafe manner is known as a “wobbler.” This means it can be charged as either a misdemeanor or a felony. Short-term, long-term, or lifetime restrictions may be applied to your right to own and/or use a gun/firearm.

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Defining Negligent Discharge of a Firearm

Incidents of this kind can seem minor, especially because people have been known to discharge their firearms into the air whether it be to demonstrate a warning sign to others or in the course of a celebration. Unfortunately, bystanders closeby or farther away were getting hurt or worse from the returning bullet(s). As with anything that gets shot into the air, eventually, it will come back down. Ordinances like this one had to be established because of the resulting injuries and/or property damage.

In order to get a better idea of what negligent discharge of a firearm actually is, we have broken down how it’s defined under Penal Code Section 246.3. If the three actions are committed below, you can face this criminal offense.

You willfully discharged a firearm,

Some common examples of weapons covered under this law would be handheld pistols, rifles, and semi-automatic handguns. What most people don’t realize is BB guns are also considered a firearm under this law.

Willfully means you intentionally did so, however, a bullet or other type of ammunition does not technically have to be discharged to be found guilty of this crime. If you actually pulled the trigger, you purposely intended on shooting the firearm.

It was done so in a grossly negligent way,

This meaning goes beyond just making a simple or careless mistake in your judgment. For the act to be considered gross negligence, there are two factors that must be accounted for.

You behaved in a reckless manner which raised the risk of severe and/or great bodily injury or death; and

A reasonable person would know better than to act in such a way that would cause this much risk.

It could have resulted in another person’s injury or death.

The possibility that someone could have died or gotten seriously injured from shooting the weapon in the air is enough to face this offense.

Even when the likelihood that someone would get hurt was low, the potential outcome is too high a risk to justify overlooking the whole incident.

Associated Offenses

The following statutes are affiliated with negligent discharge of a firearm. They can sometimes be connected to and charged in association with Penal Code Section 246.3.

Penal Code 246, Shooting at an inhabited dwelling or into an occupied car;

Firing a gun/rifle or using other firearms to shoot at or into a house, building, or vehicle that people are occupying is illegal.

Penal Code 417, Brandishing a weapon or a firearm;

To draw-out and brandish a weapon and do so in a rude, angry, or threatening way is illegal. It’s also a crime to do this during a heated argument or fight. Kitchen knives, machetes, hunting knives, rifles/shotguns, and handheld guns are some examples of what would be considered a weapon under this law.

Similar/Related Offenses

These laws are sometimes related to this offense but have slight details that differentiate them from one another.

Penal Code 25850, Openly carrying a loaded firearm in a public place or in a motor vehicle;

This law prohibits the carrying of a loaded firearm while in your motor vehicle or in a public area/place.

Penal Code 25400, Carrying a concealed firearm;

It is considered a crime when you carry a concealed firearm with you or hide it in your car, truck, or other automobiles. This law excludes unloaded rifles and shotguns as they are referred to as non-concealable firearms.

Penal Code 29800, Felon with a Firearm;

This law strictly prohibits convicted felons and those convicted of certain misdemeanors, as well as narcotic drug addicts from owning, possessing, purchasing, or receiving a firearm.

The Prosecution

For the prosecution to secure a conviction for negligent discharge of a firearm, they must first prove beyond a reasonable doubt that all the elements of the crime took place. As outlined under the legal definition of Penal Code Section 246.3, these key factors must be presented:

Elements/Facts of the Case

The defendant intentionally/deliberately shot a BB gun or other firearm,

They discharged the firearm/weapon with gross negligence, and

A serious injury or death might have occurred from that shooting.

It could be difficult for the prosecution to prove you acted with a complete disregard for others. For instance, this could occur in cases where the firearm or BB gun never actually discharged anything and no one was hurt. Just because the weapon in question didn’t have any bullets, ammunition jammed up, or simply failed to go off, it doesn’t mean you neglected to pull the trigger. The willful or intentional act of pulling the trigger is enough for the prosecution to pursue charges.

Attempting to defend oneself against this crime might not achieve the best possible outcome. Regardless of the kind of situation you might find yourself in, it’s most advisable you find the right legal counsel to get through this.

Who Can Be Charged?

To help navigate this complicated statute, here are some specific examples of who can be charged with negligent discharge of a firearm:

Lisa bought a new gun and brought it to the neighborhood park to show her friends. They dared her to test her skills and shoot an acorn out of a tree nearby. She pulled her gun out and missed the acorn, but got the tree.

David allows his 12-year-old son to use his gun. They set up a target range in their large backyard and proceeded to practice their shooting techniques. In this case, both are guilty of negligent discharge of a firearm. Also, David might have to fight additional charges of child endangerment because of placing his son in that situation.

Cole was cruising around town on his new bike looking for small rodents to shoot with his BB gun. He traveled across town, shooting at mice, possums, and raccoons. Naturally, not every bb hit its target, often ricocheting and causing damage or slight panic elsewhere.

As stated in Penal Code Section 246.3, all of these situations have the potential for you getting charged with negligent discharge of a firearm.

Legal Defenses

No matter how intimidating the crime might feel, there are defenses that an experienced criminal defense lawyer can assert on your behalf.

Here are only a few of the common counter-arguments used to defend someone against allegations of negligent discharge of a firearm. These examples illustrate who cannot be charged with this offense.

Did you act in self-defense?

There is a difference between negligently shooting a firearm and discharging one in self-defense or to defend another person. Being grossly negligent means you had little to no regard of other people’s safety and that you acted in a reckless manner.

Acting in self-defense illustrates that you did care about your life or the life of other individuals. Even though you intentionally discharged a firearm, your intentions were driven by fear for your life or the lives of the people around you.

Was it an accident?

Accidentally shooting a gun is not synonymous with negligently discharging a firearm, despite what some people might believe. Though they might be comparable, there is a specific distinction between an accident and being brazenly careless.

Like it says above, gross negligence implies reckless behavior that goes beyond what is treated as a reasonable accident.

Let’s say you were at a party and found a gun on the ground. Knowing little to nothing about gun safety, you picked it up and pointed it in the air, asking the crowd who the owner was. Without a second thought, you shook the gun, pressing down on the trigger in the process. The firearm discharged, you screamed and threw it into the swimming pool.

At first glance, it may appear negligent, especially when shaking a gun above one’s head. However, if you didn’t know the gun was going to go off from your hand gestures, you are not guilty of intentionally shooting the weapon. In order to be convicted of negligent discharge of a firearm, you must have willfully and deliberately meant to pull the trigger.

Did you believe the firearm or BB gun was loaded?

If you truly believed the firearm or BB gun was not loaded when you willfully pulled the trigger, you should not be guilty of negligence for firing that weapon.  Under the legal definition, you must have acted in a manner that fits the description of gross negligence.  But, if you believed the firearm was empty of any ammunition and believed that no one was in any danger from your actions, then the case could lack the required criteria of willful intent and gross negligence.

Wrongful Arrest & Insufficient Evidence

Parties, outdoor celebrations, and large gatherings can make it tough to single out any one individual. In the event that you are singled-out for negligently discharging a firearm and were wrongfully arrested, get legal help as soon as you are able.

Response times to events where gunshots are reported are quick for a reason. Many gatherings often involve alcohol and it’s not unheard of for violence to break out during such celebrations. Police officers must go with their best practices and react quickly. However, they can sometimes act too swiftly without a proper initial investigation.

Example of a Wrongful Arrest

You were at a rowdy party where people were shooting their guns into the air. At this point, you wanted to go, so you got into your car and drove away. A few blocks from the party you get pulled over.

The police officer was called because of the reports of gunshots in the area and suspected you were attempting to get away. He finds a gun case in your back seat and arrests you.

Upon closer inspection of the weapon, it’s eventually discovered that it was never shot, had a full round, and there was no GSR (gunshot residue) on the accused’s hands.

Example of Insufficient Evidence

You attend a St. Patrick’s Day celebration and get completely drunk. Someone fires a gun off in the streets and it injures another person in the crowd. People scream and scatter, but you don’t leave. When the police arrive, someone else points a finger at you for the crime. Since a bystander was injured, the arriving officers react without question and immediately arrest you.

They don’t find the gun on your person, nor in the immediate vicinity of the celebration. There’s also no GSR on your hands. Although being drunk does not excuse you from any crimes you might commit in this example, it also doesn’t mean you should be taken advantage of during your inhibited state.

Also, if the officers didn’t verify the statements of the supposed witness in order to make sure they were true, then those statements might not be considered sufficient evidence. Without the actual weapon or further physical evidence, it becomes their word versus your word.

No danger of injury or death

If there was no actual/definite risk of possibly causing another person injury or death, then you should not be convicted of negligent discharge of a firearm.  Discharging your firearm outside, in designated areas or where it’s commonly practiced to do so, and where there is no threat of harming anyone is not a crime.  Even when you discharge your weapon in a public, non-designated shooting area, if people were not present, you are not guilty of negligent discharge of a firearm.

If you feel none of these defenses fall under the criteria of your specific case, don’t let this dishearten you. An effective legal defense has the expertise needed to advise you on the best route to take.


If convicted of violating Penal Code Section 246.3, negligent discharge of a firearm, you could face:


Summary (informal) probation,

Up to one year in the county jail, and/or

Fines of up to one thousand dollars.


Formal probation,

Up to ten thousand dollars in fines, and/or

16 months, 2, or 3 years in the county jail under

California’s realignment program.

If you are charged with this crime, but the firearm used was a BB gun device, you will typically face misdemeanor charges.

Sentencing Enhancements

Felony penalties can be enhanced if it’s discovered that you negligently fired a weapon at the request of, for the benefit of, to impress, or to assist in a criminal street gang and their conduct. If found guilty of negligent discharge of a firearm in relation to gang activities, you could face additional consequences under Penal Code Section 186.22, gang sentencing enhancement.

Felony enhancements;

2, 3, or 4 years added to your overall incarceration sentence.

A felony conviction like this one is considered a serious felony, which means it could count as a strike under California’s Three Strikes Law. A second strike could result in harsher penalties than expected. A third strike means you will possibly face twenty-five years to life in prison.

Moreover, the conviction itself could negatively impact your immigration status, narrow down your educational opportunities, and possibly prevent you from meeting your professional goals.

Not to mention any possible restitution you would have to pay to the alleged victims for any serious injuries they might have suffered.

For instance, you could be held liable to pay any medical bills the victim might have accrued as a result of your actions. This includes hospital and psychologist/psychiatrist bills.

If any property was seriously damaged, you could be responsible for paying for those as well.

Penalties for Associated/Similar Offenses

Penal Code 246 PC, Shooting at an inhabited dwelling or into an occupied car;


Up to ten thousand dollars in fines,

Between six months and one year served in county jail, and/or

3, 5, or 7 years spent in a state penitentiary.

Penal Code 417 PC, Brandishing a weapon/firearm;


Between thirty days and one year in the county jail, and/or

Maximum fines of one thousand dollars.

Penal Code 25850 PC, Openly carrying a loaded firearm in a public place or in a motor vehicle;


Informal probation,

Up to one thousand dollars in fines, and/or

Up to one year in the county jail.


Maximum fines of up to ten thousand dollars, and/or

Up to one year in the county jail, or

16 months, 2, or 3-year county jail sentence.

Penal Code 25400 PC, Carrying a concealed firearm;


Summary probation,

Fines of up to one thousand dollars, and/or

Up to one year the county jail.


Probation plus up to one year in the county jail, or

16 months, 2, or 3-year county jail sentence.

Penal Code 29800 PC, Felon with a Firearm;


Required to forfeit your weapon,

Maximum fines of up to ten thousand dollars, and/or

16 months, 2, or 3 years in the county jail.

What You Should Do

Standing up for your rights might feel impossible and you could get discouraged when facing such severe offenses. Retaining a top-rated, assertive, and highly skilled criminal defense attorney should be one of your first priorities.

You should not have to go through this fight alone. Get the help you need by contacting our San Diego criminal attorney for a free consultation.

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