Penal Code 29825 PC - Firearm Possession in Violation of a Court Order
In the State of California, if you are under a court order or injunction that prohibits you from owning, purchasing, or possessing a firearm, you're committing a crime if you do so. This law is embodied in Penal Code 29825 PC.
Notably, it does matter if the firearm involved is operable. The court orders that apply to PC 29825 include protective orders, restraining orders, injunctions, and temporary restraining orders (TRO).
These types of court orders are frequently issued in domestic violence cases. They are designed to prevent someone from harassing, stalking, or abusing a protected person who is an alleged victim.
PC 29825 says, “(a) Every person who purchases or receives, or attempts to purchase or receive, a firearm knowing that the person is prohibited from doing so by a temporary restraining order or injunction issued pursuant to Section 527.6, 527.8, or 527.85 of the Code of Civil Procedure, a protective order as defined in Section 6218 of the Family Code, a protective order issued pursuant to Section 136.2 or 646.91 of this code, or a protective order issued pursuant to Section 15657.03 of the Welfare and Institutions Code, is guilty of a public offense, which shall be punishable by….”
(b) Every person who owns or possesses a firearm knowing that the person is prohibited from doing so…. is guilty of a public offense….
(c) If probation is granted upon conviction of a violation of this section, the court shall impose probation consistent with Section 1203.097.
(d) The Judicial Council shall provide notice on all protective orders that the respondent is prohibited from owning, possessing, purchasing, receiving, or attempting to purchase or receive a firearm while the protective order is in effect.”
If you're charged with possessing a firearm violating a court order, you could potentially face a felony conviction with up to 3 years in state prison. Let's review this state law in greater detail below.
Overview of PC 29825
As noted, under Penal Code 29825 PC, it is a criminal offense to knowingly own, purchase, receive, or possess a firearm, or even attempt to do so, if you are under any court order or injunction that prohibits you from firearm possession. This includes any gun and ammunition for the weapon.
Applicable court orders under PC 29825 include the following:
- Domestic violence protective orders, by law, these court orders automatically bar the respondent from possessing a firearm;
- Criminal restraining orders, which are protective orders issued by the court versus those requested by a victim;
- Temporary restraining orders (TROs); and
- Any other injunction specifically prohibiting firearm possession.
To convict you of a crime under this law, prosecutors must prove the following elements:
- You were subject to a court order or injunction that prohibited you from possessing a firearm;
- You knew about the court order; and
- You knowingly owned, purchased, received, or had a firearm violating that order.
Other things to know about this law:
For purposes of this law, a “firearm” refers to any device designed to be used as a weapon from which a projectile is discharged or expelled through the force of an explosion or other form of combustion.
“Possession” can be either actual or constructive.Actual possession is when you have physical control of the firearm, like if it's in your hands or a holster on your belt. Constructive possession is when you can access it, even if it's not on your person.
The firearm in question does not have to be a working weapon, nor does it have to be loaded. You can be charged under PC 29825 even if the weapon is not loaded or in working order, provided it was designed to shoot and appears functional.
Under this law, attempting to gain possession of a firearm is treated the same as actually possessing it.
The order from the court must state that a firearm owned or possessed by the person shall be:
- Relinquished to the local law enforcement agency for that jurisdiction;
- Sold to a licensed firearms dealer; or
- Transferred to a licensed firearms dealer under Section 29830 for the period that the protective order is in effect;
- Proof of surrender or sale must be filed within a specified time of receipt of the order;
- The order must state the penalties for violating probation;
- The order must state the expiration date for relinquishment.
What Are Some Examples?
EXAMPLE 1: Jane obtains a protective domestic violence order against her ex-boyfriend, Jim. When served with the order, he must relinquish all firearms while the order is in effect. He hands over all weapons except one pistol, which he kept hidden and is not registered. Therefore, Jim can be charged with a firearms violation under PC 29825.
EXAMPLE 2: John is served with a restraining order which bars him from purchasing or possessing any firearms. He attempts to buy a gun from an online retailer, but his information is flagged in the background check process and denied. John can still be charged with violating PC 29825 since attempting to gain possession of a firearm is treated like possessing it.
What Are the Related Crimes?
Several California laws are related to Penal Code 29825 possession of a firearm that violates a court order, including the following;
- Penal Code 273.6 PC – violation of a restraining order;
- Penal Code 243.4(e)(1) PC – domestic battery;
- Penal Code 273.5 PC – corporal injury to a spouse;
- Penal Code 646.9 PC – stalking;
- Penal Code 29800 PC – felon in possession of a firearm;
- Penal Code 29805 PC – possess a firearm after a conviction;
What Are the Penalties for PC 29825?
Possessing a firearm violating a court order is a “wobbler” offense in California. This means it can be charged either as a misdemeanor or a felony, depending on the facts of the case and your prior criminal record.
- If you're convicted of a misdemeanor: you could face a fine of up to $1000 and up to one year in county jail.
- If you're convicted of a felony: you could face a fine of up to $1000 and 16 months, 2 or 3 years in state prison.
Gun rights
Any defendant in a PC 29825 case would have already lost their gun rights due to the judge's restraining order.
Suppose you are charged with a misdemeanor. In that case, you could get your firearm back after complying with the court order or completing the sentence. If convicted of a felony, you will lose all gun rights.
What Are the Defenses for PC 29825?
While facing charges of illegal firearm possession can be daunting, a skilled California criminal defense attorney can employ several defenses to contest these charges, as discussed below.
Perhaps we can argue that there was a lack of knowledge of the court order. PC 29825 requires the defendant to be notified of the court order prohibiting them from firearm possession. If you can show that you were not properly notified, you may be able to get the charges dismissed.
Perhaps we can argue that you were unaware of firearm presence. For example, maybe the firearm was in your home under someone else's ownership, and you had access to it, but you did not know it was there. If your attorney can present corroborating evidence, you may be able to get the charge dismissed.
Perhaps we can argue momentary possession. It's a viable defense to claim that you only possessed the firearm momentarily for the purpose of disposing of it and that you did not attempt to prevent law enforcement from confiscating it.
Perhaps we can negotiate with the prosecutor prefiling to avoid charges from being filed in the first place, called a "DA reject." You can contact us for a case review by phone or using the contact form. Eisner Gorin LLP is based in Los Angeles, California.
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