How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask CalAttorney2 Your Own Question
CalAttorney2
CalAttorney2, Attorney
Category: Criminal Law
Satisfied Customers: 10244
Experience:  Civil litigation attorney for individuals and businesses.
71563194
Type Your Criminal Law Question Here...
CalAttorney2 is online now
A new question is answered every 9 seconds

My question is regarding California state laws concerning

Customer Question

Greetings, my question is regarding California state laws concerning convicted felons and firearms particularly non firearms but signalling devices.Okay I know that under federal law and California law a person who has been convicted of a felony offense may not possess firearms or ammunition. However a flare gun is NOT considered to be a firearm either under federal law or California state law, at least that has been my understanding thus far.
What I want to know is it legal or illegal for a felon to possess a flare gun commonly referred to as a signalling device? So long as the flare gun is not used with conventional ammunition. Just possessed with signal flares for purposes of emergency situations and such. Is that legally permitted in California and federal law too?
Submitted: 5 months ago.
Category: Criminal Law
Expert:  Colleen Grady replied 5 months ago.

Hello. I will help you today. I have been an attorney for 27 years. I am reviewing your question and will be back to you shortly.

Customer: replied 5 months ago.
Ok
Expert:  Colleen Grady replied 5 months ago.

I am still working on this.

Customer: replied 5 months ago.
Wow is it really difficult to find out? I had difficulty with it too.
Expert:  Colleen Grady replied 5 months ago.

Hang in there.

Customer: replied 5 months ago.
Lol. Cool
Customer: replied 5 months ago.
Unfortunately I am a felon. I want to buy a flare gun to keep on my boat. That's why I'm asking about this, because if it is illegal I'm not gonna buy one.
Customer: replied 5 months ago.
One thing there's no background check or registration to buy one. There is a surplus store near me that sells flare guns over the counter.
Expert:  Colleen Grady replied 5 months ago.

I just found something from a CA Bail Bond company that says a felon cannot possess a flare gun. I want to find the law that says this.

Customer: replied 5 months ago.
Please do
Customer: replied 5 months ago.
Anything yet?
Expert:  Colleen Grady replied 5 months ago.

Just found it. This was a tough one.

Customer: replied 5 months ago.
Okay so what did you find out?
Expert:  Colleen Grady replied 5 months ago.

This is from the California Attorney General's handbook:

7. FLAREGUNS A flaregun is any loaded or unloaded rocket, rocket propelled projectile launcher, or similar device designed primarily for emergency or distress-signaling purposes. (Penal Code § 12031.1.) Because a flaregun is not designed to be used as a weapon, generally it is not considered a firearm as defined in Penal Code sections 12001(a) and (b). However, the following prohibitions also apply to flareguns:

• prohibitions against carrying concealed firearms (Penal Code § 12025.); and • prohibitions against carrying loaded firearms in public. (Penal Code § 12031.)

NOTE: Pursuant to Penal Code section 12031.1, a person may lawfully store a loaded or unloaded flaregun aboard a vessel or aircraft. A person may also possess a loaded or unloaded flaregun while in or traveling to and from a permitted hunting area, if the individual is carrying a valid California hunting permit or license.

Expert:  Colleen Grady replied 5 months ago.

Penal Code § 12025 states:

(a) A person is guilty of carrying a concealed firearm when he or she does any of the following:

(1) Carries concealed within any vehicle which is under his or her control or direction any pistol, revolver, or other firearm capable of being concealed upon the person.

(2) Carries concealed upon his or her person any pistol, revolver, or other firearm capable of being concealed upon the person.

(3) Causes to be carried concealed within any vehicle in which he or she is an occupant any pistol, revolver, or other firearm capable of being concealed upon the person.

(b) Carrying a concealed firearm in violation of this section is punishable, as follows:

(1) Where the person previously has been convicted of any felony, or of any crime made punishable by this chapter, as a felony punishable by imprisonment pursuant to subdivision (h) of Section 1170.

(2) Where the firearm is stolen and the person knew or had reasonable cause to believe that it was stolen, as a felony punishable by imprisonment pursuant to subdivision (h) of Section 1170.

(3) Where the person is an active participant in a criminal street gang, as defined in subdivision (a) of Section 186.22, under the Street Terrorism Enforcement and Prevention Act (Chapter 11 (commencing with Section 186.20) of Title 7 of Part 1), as a felony.

4) Where the person is not in lawful possession of the firearm, as defined in this section, or the person is within a class of persons prohibited from possessing or acquiring a firearm pursuant to Section 12021 or 12021.1 of this code or Section 8100 or 8103 of the Welfare and Institutions Code, as a felony punishable by imprisonment pursuant to subdivision (h) of Section 11(70.

(5) Where the person has been convicted of a crime against a person or property, or of a narcotics or dangerous drug violation, by imprisonment pursuant to subdivision (h) of Section 1170, or by imprisonment in a county jail not to exceed one year, by a fine not to exceed one thousand dollars ($1,000), or by both that imprisonment and fine.

(6) By imprisonment pursuant to subdivision (h) of Section 1170, or by imprisonment in a county jail not to exceed one year, by a fine not to exceed one thousand dollars ($1,000), or by both that fine and imprisonment if both of the following conditions are met:

(A) Both the pistol, revolver, or other firearm capable of being concealed upon the person and the unexpended ammunition capable of being discharged from that firearm are either in the immediate possession of the person or readily accessible to that person, or the pistol, revolver, or other firearm capable of being concealed upon the person is loaded as defined in subdivision (g) of Section 12031.

(B) The person is not listed with the Department of Justice pursuant to paragraph (1) of subdivision (c) of Section 11106, as the registered owner of that pistol, revolver, or other firearm capable of being concealed upon the person.

(7) In all cases other than those specified in paragraphs (1) to (6), inclusive, by imprisonment in a county jail not to exceed one year, by a fine not to exceed one thousand dollars ($1,000), or by both that imprisonment and fine.

(c) A peace officer may arrest a person for a violation of paragraph (6) of subdivision (b) if the peace officer has probable cause to believe that the person is not listed with the Department of Justice pursuant to paragraph (1) of subdivision (c) of Section 11106 as the registered owner of the pistol, revolver, or other firearm capable of being concealed upon the person, and one or more of the conditions in subparagraph (A) of paragraph (6) of subdivision (b) is met.

(d) (1) Every person convicted under this section who previously has been convicted of a misdemeanor offense enumerated in Section 12001.6 shall be punished by imprisonment in a county jail for at least three months and not exceeding six months, or, if granted probation, or if the execution or imposition of sentence is suspended, it shall be a condition thereof that he or she be imprisoned in a county jail for at least three months.

(2) Every person convicted under this section who has previously been convicted of any felony, or of any crime made punishable by this chapter, if probation is granted, or if the execution or imposition of sentence is suspended, it shall be a condition thereof that he or she be imprisoned in a county jail for not less than three months.

(e) The court shall apply the three-month minimum sentence as specified in subdivision (d), except in unusual cases where the interests of justice would best be served by granting probation or suspending the imposition or execution of sentence without the minimum imprisonment required in subdivision (d) or by granting probation or suspending the imposition or execution of sentence with conditions other than those set forth in subdivision (d), in which case, the court shall specify on the record and shall enter on the minutes the circumstances indicating that the interests of justice would best be served by that disposition.

(f) Firearms carried openly in belt holsters are not concealed within the meaning of this section.

(g) For purposes of this section, "lawful possession of the firearm" means that the person who has possession or custody of the firearm either lawfully owns the firearm or has the permission of the lawful owner or a person who otherwise has apparent authority to possess or have custody of the firearm. A person who takes a firearm without the permission of the lawful owner or without the permission of a person who has lawful custody of the firearm does not have lawful possession of the firearm.

(h) (1) The district attorney of each county shall submit annually a report on or before June 30, to the Attorney General consisting of profiles by race, age, gender, and ethnicity of any person charged with a felony or a misdemeanor under this section and any other offense charged in the same complaint, indictment, or information.

(2) The Attorney General shall submit annually, a report on or before December 31, to the Legislature compiling all of the reports submitted pursuant to paragraph (1).

(3) This subdivision shall remain operative until January 1, 2005, and as of that date shall be repealed.

Customer: replied 5 months ago.
basically I can legally own it even with my previous felony conviction. I just cannot carry it in public. Is that correct?
Expert:  Colleen Grady replied 5 months ago.

Unfortunately, no. The part I just underlined "Section 12021" are convicted felons.

Expert:  Colleen Grady replied 5 months ago.

You cannot have it at all.

Expert:  Colleen Grady replied 5 months ago.

This is according to the CA Attorney General. Here is the gun handbook: http://ag.ca.gov/firearms/forms/pdf/Cfl2006.pdf

Expert:  Colleen Grady replied 5 months ago.

Two attorney websites and a bail bond site say the same thing.

Expert:  Colleen Grady replied 5 months ago.

The Attorney Generals handbook clarifies this.

Expert:  Colleen Grady replied 5 months ago.

Do you want me to opt out to see if another expert can give you advice?

Customer: replied 5 months ago.
Well damn, I'm screwed no matter what I do...
Expert:  Colleen Grady replied 5 months ago.

Sorry.

Customer: replied 5 months ago.
Are you in any way not sure about this?
Expert:  Colleen Grady replied 5 months ago.

I just spent an hour researching this. I am sure. However, you have the option of checking with another expert. I will opt out. I would rather you be satisfied with our service.

Customer: replied 5 months ago.
It appears that the part of the law you referenced has to do with actual firearms carrying and such, as far as the part regarding flare guns
Customer: replied 5 months ago.
12025 has to do with firearms whitch flare guns are not
Expert:  Colleen Grady replied 5 months ago.

This is the definition of "Carrying a Concealed firearm":

Penal Code 25400 PC reads: "A person is guilty of carrying a concealed firearm when the person does any of the following: (1) Carries concealed within any vehicle that is under the person's control or direction any pistol, revolver, or other firearm capable of being concealed upon the person. (2) Carries concealed upon the person any pistol, revolver, or other firearm capable of being concealed upon the person. (3) Causes to be carried concealed within any vehicle in which the person is an occupant any pistol, revolver, or other firearm capable of being concealed upon the person."

A boat is a vehicle.

Expert:  Colleen Grady replied 5 months ago.

I will opt out so another expert can help you. I am sure of my response but I want you to have the support you need.

Customer: replied 5 months ago.
Okay I get that. But is it legal to in my home? I guess I can't keep one in my boat. What about just having one then?
Expert:  CalAttorney2 replied 5 months ago.

Dear Customer,

Thank you for using our forum. My name is***** am another expert on the forum.

The prior expert told you what I suspect you probably already knew - California law prohibits felons from purchasing, carrying, or owning, firearms, including flare guns.

The expert's answer was extremely detailed and provided you with the appropriate statutes to support the answer. I understand being very frustrated with this situation, but we can only provide you with the information, and it would be a great disservice to you if any of the experts on this site told you differently only to make you happy (trying to explain to a judge that you had a flare gun because somebody online said it was "okay" is not going to get you out of trouble).

I would suggest other tools for distress signals (emergency mirrors, radio beacons, etc.) that can be used in the event of an emergency that will not cause you problems as alternatives to a flare gun which can.

I do wish there was a different answer for you, and I could commiserate with you about the unfairness of the way in which the statute is written or interpreted - but not placing yourself back in prison is probably much better than carrying around a device that may or may not be useful to you, and for which there are alternative emergency devices on the market.

Customer: replied 5 months ago.
Well the thing is that everything that I was told from the first lawyer, is all geared around carrying actual FIREARMS whitch the other person responded in her first answer as saying flare guns are not considered to be weapons since they are not designed as such. SECOND SHE WROTE THAT IT WAS LEGAL TO STORE FLARE GUNS ABOARD BOATS EITHER LOADED OR UNLOADED. All the rest is all geared towards carrying concealed in public. Carrying on a boat seems ok then as long as I don't have it on my body
Customer: replied 5 months ago.
Do you see my points here?
Expert:  CalAttorney2 replied 5 months ago.

She was trying to give you very detailed legal authority for her answer (she did not want to give you an "off the cuff" answer saying you just can't carry it). To do this she had to cite from two separate legal sources, the first was from the Attorney General's handbook which defined flare guns, but also noted they were subject to prohibitions of the penal code (which eliminates your right to carry them anywhere).

So, I do understand where there may have been a miscommunication between the two of you earlier (she was trying to be very very detailed (and if she was writing a legal argument for another lawyer, it would have been entirely convincing), but if you are reading the above citations as a lay person, it may not be as clear (the two reference one another, but it is not as direct).

But bot***** *****ne - you cannot carry a flare gun, doing so can place you back in prison.

Expert:  CalAttorney2 replied 5 months ago.

(And when I say "carry" - I mean both on your person and in your vehicle/home/boat/RV/segway/etc.)

Customer: replied 5 months ago.
Okay I understand let me just ask one thing about this...
Is it legal to have one in my home?
Not carrying it anywhere, just possessing it alright?
Customer: replied 5 months ago.
no I don't want to go back to prison already been there twice.
Expert:  CalAttorney2 replied 5 months ago.

No, you cannot have one in your home.