Typically, Halloween is a joyous time of the year—especially in mild climates of California. However, the global pandemic will likely alter plans this year. Whether you plan to go out or stay at home this Halloween, it is certainly still wise to understand the potential dangers Halloween presents and how to avoid legal pitfalls.
Defending Against Halloween Mischief
Vandals are always a very real risk around Halloween. People stay out later than usual and homes are oftentimes left unattended. We have all probably observed at one time or another a smashed pumpkin, broken Halloween decorations, or possibly even more serious damage to homes or vehicles.
So what degree of force, if any, may one lawfully deploy to protect property? In California, the owner (or possessor) of real or personal property may use “reasonable force” to protect property from destruction or harm. Cal. Jury Instruction 3476.
The concept is defined in only general terms:
“Reasonable force means the amount of force that a reasonable person in the same situation would believe is necessary to protect the property from imminent harm.”
For the most part, the use of deadly force to protect real or personal property will likely not be considered “reasonable” unless the threat is also to a person’s well-being. As such, if it appears your home or other property is being damaged, it is best to remain in your home and call the police.
Restrictions in Self-Defense
While out enjoying Halloween festivities, U.S. LawShield members must also be aware of the legal restrictions related to carrying weapons for self-defense purposes. Concealed carry of a firearm is only lawful if you possess a valid permit, carry the firearm in a lawful manner, and only in permitted locations.
Cal. Penal Code § 26200 permits an issuing authority to impose “any reasonable restrictions or conditions” on a CCW license that are deemed warranted. Routinely, issuing authorities will prohibit license holders from carrying a firearm while consuming any alcohol or entering a business having a primary purpose of dispensing alcoholic beverages for on-site consumption (i.e., a bar). With very few exceptions, open carry of a firearm is not permitted.
California laws also heavily regulate the possession of nonlethal weapons. Generally speaking, the possession of tear gas (i.e., pepper spray) and stun guns is legal in California, so long as they are carried and used solely for self-defense purposes. Cal. Penal Code §§ 22810 and 22610. However, tear gas that expels a projectile, expels the gas by any method other than an aerosol spray, or contains more than 2.5 ounces net weight of aerosol spray is unlawful.
Costumes, Accessories, and Weapons
Members intending to dress up in costumes for Halloween also need to be careful to avoid accidentally affixing or carrying an object as part of the costume that could be considered an illegal weapon. In California, there is a very wide list of objects that are illegal to possess as weapons.
For example, it is unlawful to possess a blowgun, which is defined as any hollow tube designed and intended to be use as a tube through which a dart is propelled by the force of the breath of the user. Cal. Penal Code §§ 20010 and 16270. Likewise, the possession of any composite, hard wooden, or metal knuckles is unlawful. Cal. Penal Code §§ 21710 and 21810.
Knives, swords, and similar objects, whether part of a costume or carried for self-defense, also pose potential risks. For example, California prohibits concealed carry of any knife where the blade is exposed and locked into position. Cal. Penal Code §§ 21310 and 16470. These are referred to as dirks or daggers. Open or conceal carry of a switchblade knife having a blade two or more inches in length and any possession of a ballistic knife is also unlawful. Cal. Penal Code §§ 21110 and 21510.
Possession of any air gauge knife, belt buckle knife, cane sword, lipstick case knife, Shobi-Zue, or writing pen knife is outright banned in California. Cal. Penal Code §§ 20310 through 20990.
Brandishing or Exhibiting a Firearm
Finally, with regard to firearms, California has strict laws against brandishing or displaying a firearm in a rude, angry, or threatening manner, except in self-defense. Cal. Penal Code § 417(a). It is also unlawful to openly display or expose any imitation firearm in a public place (i.e., street, sidewalk, bridge, alley, plaza, park, driveway, front yard, parking lot, automobile, building open to the general public, public school, or public or private college or university). Cal. Penal Code § 20170.
Fake Firearms
California law does provide an exception for entirely colored, transparent, or translucent imitation firearms; however, an orange tip by itself is not sufficient. Cal. Penal Code § 20175. If colored, the surface of the imitation firearm must be white, bright red, bright orange, bright yellow, bright green, bright blue, bright pink, or bright purple in its entirety or as the predominant color in combination with other colors.
Before you go out to celebrate Halloween this year, make sure you understand California self-defense laws, carry lethal and nonlethal weapons lawfully, and double-check your costume and your children’s costumes to ensure all accessories are legal. Following these steps will help ensure a safe, fun, and lawful Halloween experience this year!
For any questions regarding activities and home defense during Halloween, call U.S. LawShield and ask to speak to your Independent Program Attorney.
The preceding should not be construed as legal advice nor the creation of an attorney-client relationship. This is not an endorsement or solicitation for any service. Your situation may be different, so please contact your attorney regarding your specific circumstances. Because the laws, judges, juries, and prosecutors vary from location to location, similar or even identical facts and circumstances to those described in this presentation may result in significantly different legal outcomes. This presentation is by no means a guarantee or promise of any particular legal outcome, positive, negative, or otherwise.
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