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Is California Penal Code Section 25100 Unconstitutional?

Daniel Horowitz in suit but informal

Is California Penal Code Section 25100 (Safe Storage) Unconstitutional?

Since New York State Rifle Association v. Bruen was decided, many gun laws that survived Heller are now under attack.  There are numerous safe storage statutes that are presently being challenged but California's law has particular weaknesses that go beyond Bruen. 

What Does Penal Code section 25100 prohibit?

California's safe storage statute states that a person commits the crime of “criminal storage of a firearm” if he or she “keeps any loaded firearm within any premises that are under the person's custody or control,” and “knows or reasonably should know that a child is likely to gain access to the firearm without the permission of the child's parent or legal guardian”. It then adds to roulette wheel elements as it also requires that “[t]he child obtains access to the firearm and thereby causes death or great bodily injury to the child or any other person.” (Penal Code, § 25100, subd. (a).)

It is a luck statute.  It doesn't say how to store the gun but if by chance a child gets it and if by chance the child fires it and if by chance the bullet causes serious harm, then you have committed a crime.  This does not provide any real guidance as to what is legal and what is not legal.  The law is not a gambling casino.  Conduct that is criminal needs to be described with sufficient particularity that a law abiding citizen can avoid accidently committing a crime.

We therefore believe that the California gun safe storage law is unconstitutional on vagueness grounds.  Here is the basic law on unconstitutionally vague laws.


“The Fourteenth Amendment to the United States Constitution and article I, section 7 of the California Constitution, each guarantee that no person shall be deprived of life, liberty, or property without due process of law. This constitutional command requires “a reasonable degree of certainty in legislation, especially in the criminal law....” [Citation.]”
(People v. Maciel (2003) 113 Cal.App.4th 679, 683)

A statute is unconstitutionally vague on its face if it "fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages
seriously discriminatory enforcement." United States v. Williams, 553 U.S. 285, 304 (2008).

Penal Code § 25100 does not define any conduct that is criminal. Instead, it criminalizes conduct based upon a chance outcome. Penal Code § 25100 states that a person commits the crime of “criminal storage of a firearm” without providing any parameters as to what type of storage is permitted or not permitted. One can read Penal Code § 25100 in conjunction with Penal Code § 25105 and argue that Penal Code § 25105 provides such direction as it excludes from liability guns that are “(b) The firearm is kept in a locked container or in a location that a reasonable person would believe to be secure” or “(d) The firearm is locked with a locking device, as defined in Section 16860, which has rendered the firearm inoperable.”. To the extent these exceptions are read as defining non-culpable conduct, conduct outside this permitted range is culpable or not depending upon random chance (child finds, uses and serious harms with gun).

This renders the statute unconstitutional both for vagueness and because the incorporation of Penal Code § 25105 into a definition as to what is or is not protected is far more restrictive than historical precedent provides hence violating the 2nd Amendment.

If your Second Amendment rights have been violated call Daniel Horowitz for legal assistance.