For those who celebrate New Year’s Eve by firing a few shots into the air from a large gathering or those who take some innocent target practice at beer bottles in an open field with an industrial building at the opposite end, they could be guilty of negligent discharge of a firearm. While most who commit this offense have no “sinister” nor ill-motive when doing so, their act can have far reaching negative implications and consequences.
Elements
To be guilty of this offense (Penal Code section 246.3(a)), a prosecutor must prove that the defendant:
- intentionally shot a firearm
- with gross negligence
- and the shooting could have resulted in someone’s injury or death
“Gross negligence” is defined as a “reckless act creating a high risk of death or great bodily injury (GBI) and a reasonable person would have known that acting that way would create such a risk”. In the two examples above, both individuals would have criminal responsibility because in both situations, the shooters fired the weapon knowing that many people were nearby and that it was very likely that someone could’ve been struck by a bullet, even a “spent” bullet (a bullet that no longer is no longer being propelled by the energy of the explosion). Also, the fact that the shooters did not aim in the direction of others or fired into the air has no legal relevance to the violation. What matters is that each shooter intentionally fired the weapon.
Punishment
The offense for negligent discharge of a firearm can be charged as a misdemeanor or felony, depending on the underlying circumstances of the case and the defendant’s criminal history, if any. A misdemeanor offense is punishable with informal (summary) probation and up to one year of custody in county jail, along with fines and fees.
A defendant convicted of a felony offense could receive formal probation with up to one year of custody up to one year in the county jail. However, if probation is denied then the defendant can be punished by up to 16 months, 2 years, or 3 years in state prison (unless further factors require additional years).
Finally, a misdemeanor conviction will require a 10-year ban on owning or possessing a firearm. If the defendant is convicted of a felony, the ban is for life.
Defense Strategy
There are however, circumstances that can provide a defense to this offense:
- using the “New Year’s Eve” example, if the shooter was threatened with a gun being pointed at him by another reveler, and he fired his gun into the air to “scare off” the other person, he may be able to claim “self-defense” (assuming his actions were all reasonable), or perhaps he didn’t believe the gun was even loaded at the time, thus arguing the act was “unintentional”
- using the “target practice” example, if the industrial nearby was condemned and the shooter thought no one lived or inhabited the building, it can be argued that firing the weapon at the beer bottles did not create a risk of injury or death to anyone.
As in any case involving violence, there is much at stake. In addition to the criminal penalties, there are potential employment and immigration consequences, and not least of which, the loss of a person’s reputation. Given all of the ramifications of a negligent discharge of a firearm charge, it is extremely helpful to speak with an attorney to be well and properly advised, to make informed and intelligent decisions, and to develop an effective defense strategy.