Adams Stirling PLC


QUESTION: One of the owners was upset over homeless people trespassing our common areas. He claimed he has the right to use his firearm even on common area grounds to protect himself. I said that the law of self-defense does not apply. If a firearm is used inside his dwelling, it might be considered as self-defense but not in the common area.

ANSWER: 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).

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.)

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.

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

Adams Stirling PLC