Negligent Discharge of a Firearm – Penal Code 246.3

California has two laws on the books for discharge of a firearm or BB gun in a manner that might cause harm.  Ordinarily, laws are designed to punish for what you have done and not just what might happen.

Negligent Discharge of a Firearm or BB gun

Penal Code section 246.3(a) makes it unlawful to “willfully discharge a firearm in a grossly negligent manner which could result in injury or death to a person.”  It is a “wobbler”, meaning it can be prosecuted as either a felony or a misdemeanor.  As a felony, it carries up to 3 years in custody.  As a misdemeanor, the maximum punishment is one year in county jail.


  • Willful – done deliberately or non-accidentally.
  • Firearm – any device designed to be used as a weapon, from which a projectile is discharged or expelled through a barrel by the force of an explosion or other form of combustion (but NOT by compressed air, compressed gas or by a spring)
  • Grossly negligent manner – it is defined as “more than ordinary carelessness, inattention or a mistake in judgment.  A person acts with “gross negligence” when they act in a reckless way that creates a high risk of death or great bodily injury AND a reasonable person would have known that acting that way would create such a risk.  Essentially, it is acting with disregard for human life or indifference to the consequences of the act.

Discharging a BB gun in the same grossly negligent manner is a misdemeanor and can carry up to a year in county jail.  [Penal Code 246.3(b)]


What are some possible defenses to a charge of negligently discharging a firearm or BB gun?  Built into the crime elements is that the act must be done NOT in self-defense or in the defense of others.  For example, if you were in a situation where your life was in danger and firing a “warning shot” would stop the attack, that could be a complete defense to this charge.  The “defense of others” would apply if you were acting to save somebody else’s life or to prevent them from suffering great bodily injury.

Another defense would be that if a person honestly believed the firearm was unloaded at the time it was shot, they would not have the necessary mental state and would therefore be NOT GUILTY of the crime.  This charge requires that a person willfully (deliberately) fire a gun.  If you didn’t know the gun was loaded, how could you be intentionally meaning to fire it?

Firearms and New Year’s Eve

Every year, in celebration of New Year’s Eve, people fire guns into the ground, into the air or in other ways.  The police are always looking to crack down and catch people firing guns and arrest them for negligent discharge of a firearm.  If they think the evidence shows that the gun was aimed at a building or vehicle, there could be more serious charges filed (Penal Code 246 – Shooting at an inhabited house or occupied motor vehicle).

Joe Dane, Orange County Defense Attorney


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