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FIREARMS AND SELF-DEFENSE

Self-Defense. Self-defense is not limited to a person's home. In California, people have the right to defend themselves and others against imminent harm regardless of location. The right to self-defense does not change based on whether the threat of harm is inside the home or outside. The benefit of being inside your home is the presumption that you acted in self-defense. (Penal Code § 198.5.)

Firearms in the Common Areas. Are there any limitations on firearms in the common areas? If the person is not licensed, California laws prohibiting the carrying a loaded firearm in any "public place" apply. (Penal Code §§ 25400, 25850, 26350, 26400.) The term “public place” is not defined, but most California courts have interpreted the restriction to apply if the area is reasonably accessible to the public without a barrier. (People v. Yarbrough (2008) 169 Cal.App.4th 303 (holding a private driveway may be a “public place” as applied to California’s loaded carry restrictions). In Nahrstedt v. Lakeside Village, the California Supreme Court stated that “use restrictions are an inherent part of any common interest development and are crucial to the stable, planned environment of any shared ownership arrangement." And, associations "may limit activities conducted in the common areas.” Accordingly, associations can restrict residents from openly carrying firearms in the common areas.

Common Areas. Are common areas a public place? If so, then California’s restrictions against the carrying a loaded firearm in the common areas apply. One court has already determined that private association meetings are "public" forums for the limited purpose of free speech by the membership. (Damon v. Ocean Hills.) It is likely courts would also deem common areas a "public place" for the association's membership. Therefore, anyone carrying a loaded firearm in the common areas would need to be licensed. Individuals with a license to carry a loaded firearm are generally exempt from California’s restrictions. (Penal Code §§ 25655, 26010.)

No Gun Bans. Although HOAs can regulate handguns in the common areas, any attempt by a board to ban gun ownership would be struck down. In Heller, the court ruled that a person has a right to defend himself with a firearm in his home. The U.S. Supreme Court  also overturned a Chicago ban on handguns. (McDonald v. City of Chicago (2010) 130 S.Ct. 3020.)

Self-Defense in Common Areas. Even though a person may lawfully defend himself with a firearm in the common areas, if he is not licensed to carry it in a public place, he could face prosecution for the unlawful possession of and or carrying of a firearm in connection with any incident involving it. In addition, if he shoots another person, he will need to prove:

  1.  He reasonably believed he or someone else was in imminent danger of being harmed;
  2.  He reasonably believed the use of force was necessary to defend against that danger; and
  3.  He only used the amount of force reasonably necessary to defend against that danger.

 Gun Registration. Can a board require residents to register their guns with the association? Probably not. There is no safety or security benefit to registration since HOAs cannot license or ban gun ownership. Moreover, Penal Code, §25605(b) provides that no permit or license to purchase, own, possess, keep, or carry, either openly or concealed, shall be required of any citizen of the United States or legal resident over the age of 18 years. While this statute applies only to government registration of firearms, it shows a public policy against registration. In Nahrstedt, the Supreme Court used public policy as one of the criteria for judging the reasonableness of a restriction.The Second Amendment to the U.S. Constitution guarantees the right of citizens to possess firearms. However, the right is subject to reasonable regulation. (Dist. of Columbia v. Heller (2008) 554 U.S. 570, 626-27; governments can impose narrowly prescribed and reasonable restrictions on guns.) For example, you cannot carry a firearm onto a commercial airliner. If airport screeners find one, you won't be boarding the plane. By extension, reasonable regulation of firearms also applies to community associations. A court would likely deem an association's registration of firearms to be inconsistent with public policy and invalidate the requirement. (See "Self-Defense in the Common Areas.")

ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.

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