In California, Penal Code 148(d) PC criminalizes attempting to seize, remove, or take a firearm from a police officer, peace officer, or public officer while they are actively performing their lawful duties.
This offense targets dangerous altercations where a suspect makes a direct, physical effort to disarm an officer, creating an extreme risk of severe injury or death.
Because attempting to disarm law enforcement threatens public safety and institutional integrity, prosecutors aggressively pursue these charges, which often carry wobbler status capable of triggering state prison sentences.
What is the Statutory Language of PC 148(d)?
“(d) Except as provided in subdivision (c) and notwithstanding subdivision (a) of Section 489, every person who removes or takes without intent to permanently deprive, or who attempts to remove or take a firearm from the person of, or immediate presence of, a public officer or peace officer, while the officer is engaged in the performance of their lawful duties, shall be punished by imprisonment in a county jail not to exceed one year or pursuant to subdivision (h) of Section 1170.
In order to prove a violation of this subdivision, the prosecution shall establish that the defendant had the specific intent to remove or take the firearm by demonstrating that any of the following direct, but ineffectual, acts occurred:
(1) The defendant unfastened the officer's holster strap.
(2) The firearm was partially removed from the officer's holster by the defendant.
(3) The defendant released the firearm safety.
(4) An independent witness corroborates that the defendant stated that they intended to remove the firearm, and the defendant actually touched the firearm.
(5) An independent witness corroborates that the defendant actually had their hand on the firearm and tried to take the firearm away from the officer who was holding it.
(6) The defendant's fingerprint was found on the firearm or holster.
(7) Physical evidence authenticated by a scientifically verifiable procedure established that the defendant touched the firearm.
(8) In the course of any struggle, the officer's firearm fell, and the defendant attempted to pick it up.”
What Key Statutory Definitions Apply Under Penal Code 148(d)?
Understanding the specific legal terminology embedded in the statute helps clarify what prosecutors must demonstrate to secure a conviction:
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Peace Officer: Includes any sworn law enforcement officer, police officer, deputy sheriff, or authorized public officer performing official duties.
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Specific Intent: A deliberate mental state requiring proof that the defendant actively desired and purposed to remove or disarm the officer, rather than touching the weapon by accident.
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Direct, But Ineffectual, Act: An overt physical step taken toward disarming the officer (such as unsnapping a holster) that falls short of complete success or control over the weapon.
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Lawful Duties: Actions an officer performs within the scope of their legal authority, excluding situations involving unlawful or excessive police conduct.
What Must Be Proven to Convict Under PC 148(d)?
To secure a conviction under California Penal Code Section 148(d), the prosecution must establish specific legal elements beyond a reasonable doubt:
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Officer Engaged in Duties: The victim was a peace officer performing lawful duties at the time of the incident.
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Specific Intent: The defendant intended to remove or take the firearm from the officer's person or immediate presence.
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No Intent to Permanently Deprive Required: The prosecution does not need to prove the defendant wanted to steal the gun permanently; momentary control or removal is sufficient.
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Statutory Direct Act: The defendant committed at least one of the eight statutory direct acts (such as unfastening a holster strap, releasing a safety, or leaving fingerprints on the weapon).
What Are the Penalties and Sentencing for Penal Code 148(d) Violations?
Violating Penal Code 148(d) is a wobbler offense in California, giving prosecutors discretion to charge it as either a misdemeanor or a felony based on the circumstances.
|
Offense Classification |
Maximum Prison Term |
Fines and Collateral Consequences |
| Misdemeanor | Up to 1 year in county jail | Summary probation, fines up to $1,000, and court-mandated counseling or community service. |
| Felony | 16 months, 2 years, or 3 years in state prison | Formal felony probation, fines up to $10,000, loss of firearm rights, and a permanent criminal record. |
What Legal Defense Strategies Can Be Used Against PC 148(d) Charges?
Defending against an accusation under Penal Code 148(d) requires a careful review of body-worn camera footage, forensic evidence, and witness statements:
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Lack of Specific Intent: Showing that any contact with the firearm was accidental, inadvertent, or a defensive reaction during a chaotic physical struggle, rather than a purposeful attempt to disarm.
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Unlawful Detention or Excessive Force: Arguing that the officer was not engaged in lawful duties because the underlying detention or arrest was illegal, or because the officer used excessive force, justifying self-defense.
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Mistaken Identity: Showing through video evidence or alibi witnesses that the defendant did not touch or reach for the officer's weapon, and was misidentified in a fast-moving crowd or scuffle.
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Insufficient Evidence: Challenging the reliability of fingerprint analysis, DNA evidence, or unverified witness statements that fail to establish one of the mandated statutory direct acts.
How Does Penal Code 148(d) Apply in a Hypothetical Example?
Consider a scenario where an individual is involved in a physical altercation with police officers during a chaotic downtown protest. During the struggle on the pavement, the suspect reaches out and unfastens the retention strap on one officer's holster, attempting to pull the service weapon free before being subdued by backup units.
Because the suspect performed a direct, unfastened action demonstrating a specific intent to take the firearm from an officer engaged in lawful duties, they can be charged and prosecuted under California Penal Code Section 148(d) PC, even though the weapon was never fully removed.
What Related Laws Impact Penal Code 148(d) Cases?
Understanding related statutory provisions is essential, as prosecutors often bring multiple counts when charging decisions involve physical altercations with law enforcement.
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California Penal Code Section 148(a) PC – Resisting, Delaying, or Obstructing an Officer: Criminalizes willfully resisting, delaying, or obstructing a public officer in the discharge of their duties, serving as the standard baseline charge for physical interference during arrests.
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California Penal Code Section 69 PC – Resisting an Executive Officer: Punishes using threats or violence to deter an executive officer from performing their duties, often filed alongside PC 148(d) when a physical struggle escalates.
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California Penal Code Section 243(b)/(c) PC – Battery on a Peace Officer: Prosecutes battery committed against a peace officer engaged in performance of duties, carrying enhanced penalties if injury results.
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California Penal Code Section 245(c) PC – Assault with a Deadly Weapon on a Peace Officer: Applied when a suspect successfully seizes a firearm or uses a weapon against law enforcement during a violent encounter.
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California Penal Code Section 29900 PC – Felon in Possession of a Firearm: Restricts felons from owning or possessing firearms, compounding legal exposure if a defendant manages to gain control of an officer's weapon.
Frequently Asked Questions (FAQs)
Do you have to successfully steal the gun to be convicted under PC 148(d)?
No. The statute explicitly criminalizes attempts to remove or take a firearm, meaning a conviction can occur even if the weapon never leaves the officer's holster.
Can you be convicted if you touched the officer's holster by accident during a fall?
No. Conviction requires proving specific intent to take the weapon, demonstrated through one of the eight statutory acts; accidental contact during a stumble or fall does not meet this legal threshold.
Is Penal Code 148(d) always charged as a felony?
No. Because PC 148(d) is a wobbler offense, prosecutors can file it as a misdemeanor or a felony depending on factors like prior criminal history, the use of violence, and whether anyone sustained injuries.
What constitutes a direct act under the statute?
Direct acts include unfastening a holster strap, releasing a safety, leaving fingerprints on the weapon, or having an independent witness corroborate that you tried to pull the gun away from the officer.
What should I do if I am accused of attempting to take an officer's firearm?
Immediately exercise your right to remain silent, avoid making any statements to investigators, and retain an experienced California criminal defense attorney to protect your rights.
How Cron, Israels & Stark Can Help You
Facing charges for attempting to take a firearm from a police officer under California Penal Code Section 148(d) PC requires immediate, aggressive legal defense.
These accusations carry severe felony penalties, potential prison time, and long-term collateral consequences that can impact the rest of your life.
Our legal team provides expert defense services, including:
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Comprehensive Video and Evidence Review: Securing body-worn camera footage, dashcam recordings, and surveillance video to uncover the truth behind the struggle and challenge police reports.
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Strategic Court Advocacy: Negotiating aggressively with prosecutors to seek charge reductions, misdemeanor sentencing, or complete dismissals where appropriate.
If you or a loved one is under investigation or facing arrest for PC 148(d), do not wait. Contact our office today for a confidential consultation to protect your rights and your future.
The California criminal defense attorneys at Cron, Israels & Stark are here to help you. We are located in Los Angeles, CA.
