Carrying a Concealed Firearm as a Protected Person Under a Restraining Order in California, Is it Legal?
In California, carrying a concealed firearm in public is heavily regulated, typically requiring a Carry Concealed Weapon (CCW) permit. However, a narrow exception exists for individuals who are protected under a restraining order and face grave danger. This blog explores the legal framework under California Penal Code section 25600, which allows protected persons to carry a concealed firearm without a permit under specific circumstances, and examines relevant California case law to provide context.
Understanding Penal Code Section 25600
Under Penal Code section 25600, a person protected by a restraining order may carry a loaded, concealed firearm in public without a CCW permit if:
They reasonably believe they are in grave danger due to the circumstances that led to the issuance of the restraining order.
The court issuing the restraining order found that the restrained person poses a threat to the life or safety of the protected person.
This exception is designed to empower individuals facing imminent threats, such as those escaping domestic violence or stalking, to protect themselves when their safety is at risk. However, the law is narrowly tailored, and the conditions must be strictly met.
Key Requirements
Grave Danger: The protected person must have a reasonable belief that their life or safety is in immediate peril. This is a subjective standard tempered by objective reasonableness.
Court Finding: The restraining order must explicitly include a judicial finding that the restrained person is a threat to the protected person’s life or safety.
No Permit Needed: Unlike the general rule under Penal Code section 25400, which criminalizes concealed carry without a permit, this exception allows temporary concealed carry without licensing.
Other Laws Apply: The exception does not exempt the person from other firearm regulations, such as prohibitions on carrying in restricted areas (e.g., schools, government buildings) or requirements for lawful firearm possession.
Context: Restraining Orders and Firearm Laws
California takes a strong stance on firearm restrictions for individuals subject to restraining orders. Under Penal Code section 6389, a restrained person (e.g., under a domestic violence, civil harassment, or gun violence restraining order) is prohibited from possessing, purchasing, or owning firearms or ammunition while the order is in effect. This complements the exception in section 25600, which prioritizes the safety of the protected person.
For those who do not qualify for the section 25600 exception, obtaining a CCW permit is the legal pathway to carry a concealed firearm. However, being subject to a restraining order as a restrained person within the past five years disqualifies an individual from obtaining a CCW permit, reinforcing the state’s focus on preventing firearm access by potential threats.
Relevant California Case Law
While Penal Code section 25600 is relatively specific, California case law provides insight into how courts interpret firearm possession, concealed carry, and self-defense in the context of restraining orders and threats. Below are key cases that touch on related principles:
1. People v. Overturf (1976) 64 Cal.App.3d Supp. 1
Relevance: This case addressed the constitutionality of California’s concealed carry laws and the balance between public safety and self-defense. Although it predates section 25600, it established that exceptions to concealed carry restrictions must be narrowly construed to prevent abuse. The court upheld the state’s authority to regulate concealed firearms, suggesting that exceptions like section 25600 are valid only when specific criteria (e.g., grave danger) are met.
Application: For protected persons, this case underscores the importance of meeting the precise conditions of section 25600 to avoid prosecution under Penal Code section 25400 for unlawful concealed carry.
2. People v. King (1978) 22 Cal.3d 12
Relevance: This case examined the “immediate danger” exception to concealed carry laws under former statutes, which shares similarities with section 25600. The court clarified that a defendant claiming an exception must demonstrate a reasonable belief in immediate danger, supported by objective evidence. The ruling emphasized that such exceptions are fact-specific and require a clear nexus between the threat and the need to carry a firearm.
Application: A protected person relying on section 25600 must show that their belief in grave danger is reasonable and tied to the restraining order’s circumstances, such as documented threats or violence by the restrained person.
3. In re Marriage of Candiotti (1995) 34 Cal.App.4th 718
Relevance: This case involved a domestic violence restraining order and the enforcement of firearm relinquishment by the restrained person. The court emphasized the public policy of protecting victims of domestic violence by restricting the restrained person’s access to firearms. While not directly addressing section 25600, it highlights the legal framework that supports empowering protected persons to take defensive measures, such as carrying a firearm under specific conditions.
Application: The case reinforces the rationale behind section 25600, which aims to level the playing field for protected persons facing credible threats.
4. People v. Yarbrough (2008) 169 Cal.App.4th 303
Relevance: This case clarified the scope of concealed carry laws and the burden on defendants to prove exemptions. The court held that exceptions to Penal Code section 25400 are affirmative defenses, meaning the defendant must present evidence to support their eligibility for the exception. For section 25600, this implies that a protected person must be prepared to demonstrate both the court’s finding of a threat and their reasonable belief in grave danger.
Application: Protected persons should maintain documentation of the restraining order and any evidence of ongoing threats to substantiate their reliance on section 25600.