Transferring Firearms Among Some Family Members
Intrafamilial transfer is easy and FFL-free for proper family members - grandparents, parents, and children - who all are California residents.
Intrafamilial transfers from out of state residents to California residents are ordinarily legal, but Federal law requires the transfer occur through a California FFL.
Family gun transfers in California (parent/child, grandparent/grandchild, husband/wife)
California allows Non-FFL transfers among certain family members, all of whom live within California. Federal law has nothing similar - an intrafamily transfer between residents of different states must use a FFL in the state of residence of the person receiving the gun.
In all cases the law specifies the receiver must not be prohibited from owning guns.
The applicable Penal Code is 27545
Where neither party to the transaction holds a dealer's license issued pursuant to Sections 26700 to 26915, inclusive, the parties to the transaction shall complete the sale, loan, or transfer of that firearm through a licensed firearms dealer pursuant to Chapter 5 (commencing with Section 28050).
Penal Code 27870 (was 12078 (c) (1))
Section 27545 does not apply to the transfer of a firearm, other than a handgun, by gift, bequest, intestate succession, or other means from one individual to another, if both of the following requirements are satisfied: (a) The transfer is infrequent, as defined in Section 16730. (b) The transfer is between members of the same immediate family.
Section 27545 does not apply to the transfer of a handgun by gift, bequest, intestate succession, or other means from one individual to another, if all of the following requirements are met: (a) The transfer is infrequent, as defined in Section 16730. (b) The transfer is between members of the same immediate family. (c) Within 30 days of taking possession of the firearm, the person to whom it is transferred shall forward by prepaid mail, or deliver in person to the Department of Justice, a report that includes information concerning the individual taking possession of the firearm, how title was obtained and from whom, and a description of the firearm in question. The report forms that individuals complete pursuant to this section shall be provided to them by the Department of Justice. (d) The person taking title to the firearm shall first obtain a handgun safety certificate. (e) The person receiving the firearm is 18 years of age or older.
As used in this part, "immediate family member" means either of the following relationships: (a) Parent and child. (b) Grandparent and grandchild.
12078 was added to the Penal Code by AB 166, introduced in January of 1993, filed with Secretary of State October 1993, effective Jan 1, 1994.
Step-parent appears to be excluded
"Parent and child relationship" as used in this part means the legal relationship existing between a child and the child's natural or adoptive parents incident to which the law confers or imposes rights, privileges, duties, and obligations. The term includes the mother and child relationship and the father and child relationship.
Parent/child, grandparent/grandchild, husband/wife only
Note the text in Penal Code 16720. It really means ONLY those relationships, in either direction. Your brother, uncle, cousin or any 'in-laws' are NOT included.
However, in a slightly different operation, husbands and wives can give guns to each other, in an 'operation of law' called 'transmutation' (Family Code 850 The implication here is that firearms are separate, not community property - but why that should be so is not clear; further discussion of community property and related topics is far outside the scope of this article).
A perilous work-around
Brother directly to brother is not legal. Child to parent, parent to other child follows the law.
i. e. Staying entirely within the letter of the law, Abel may accomplish a transfer to his brother Cain by first transferring the firearm to either parent (Adam or Eve), and then the parent would transfer the firearm to their other son, Cain.
Penal Code 12072 (a) addresses this situation:
(4)No person, corporation, or dealer shall sell, loan, or transfer a firearm to any person whom he or she knows or has cause to believe is not the actual purchaser or transferee of the firearm, or to any person who is not the person actually being loaned the firearm, if the person, corporation, or dealer has either of the following: (A)Knowledge that the firearm is to be subsequently loaned, sold, or transferred to avoid the provisions of subdivision (c) or (d). (B)Knowledge that the firearm is to be subsequently loaned, sold, or transferred to avoid the requirements of any exemption to the provisions of subdivision (c) or (d).
(5)No person, corporation, or dealer shall acquire a firearm for the purpose of selling, transferring, or loaning the firearm, if the person, corporation, or dealer has either of the following: (A)In the case of a dealer, intent to violate subdivision (b) or (c). (B)In any other case, intent to avoid either of the following: (i)The provisions of subdivision (d). (ii)The requirements of any exemption to the provisions of subdivision (d).
(d), as already quoted above, is
(d)Where neither party to the transaction holds a dealer's license issued pursuant to Section 12071, the parties to the transaction shall complete the sale, loan, or transfer of that firearm through a licensed firearms dealer pursuant to Section 12082.
Long guns need no paper
27870 (was 12078(c)(1)) means long gun transfers between California-resident family members (grandparents/parents/children) are paperless. There is no fee, there is no notification, and there is no age limit. This is scheduled to change in January, 2014.
Hand guns need paper and fee
27875 (was 12078(c)(2)) means handguns require paper and a fee - this form, Operation of Law or Intrafamilial Handgun Transaction Report, and $19 for all the handguns you care to transfer. There is now (2012) a place for the HSC number on this form.
Handgun transfer to 18-20 is OK
27875 (was 12078(c)(2)) also means parents or grandparents can transfer handguns to children or grandchildren 18 or older. Since it's illegal for dealers to transfer handguns to people under 21, this is the way people 18, 19 and 20 can legally receive handguns. (Penal Code 25605 (was 12026) is quite clear that those 18 and over can "own, possess, [and] keep ..." a pistol or revolver.)
HSC is required
The Handgun Safety Certificate is required for handgun transfers, even though the Transaction Report has no place to record the HSC number or other verification that the receiver has the HSC.
These transfers are exempt from the Roster
An additional part of the Penal Code, 32110 (was 12132)
Article 4 (commencing with Section 31900) and Article 5 (commencing with Section 32000) shall not apply to any of the following: (b) The sale, loan, or transfer of any firearm that is exempt from the provisions of Section 27545 pursuant to any applicable exemption contained in Article 2 (commencing with Section 27600) or Article 6 (commencing with Section 27850) of Chapter 4 of Division 6, if the sale, loan, or transfer complies with the requirements of that applicable exemption to Section 27545.
says that intrafamilial handgun transfers are NOT subject to the Roster of Handguns.
Interstate Intrafamily transfers need FFL located in CA
INTERSTATE transfers are generally NOT FFL-free, because Federal law says so. So, out of state family members MAY transfer guns to family living in California, but almost always must use the services of a CA-licensed, in-California FFL -- the 'OPLAW' form does not work for INTERSTATE transfer.
Interstate intrafamilial transfer of handguns is legally subject to the 1-in-30-days rule, because it must run through DROS; there seems to be some confusion. See the Calguns discussion thread.
After you use a CA FFL to facilitate your interstate transfer, do NOT file the 'OPLAW' form as well; DROS accomplishes the state-level details. The 'OPLAW' form is not sufficient and not necessary.
Example of interstate intrafamilial transfer
Suppose you live in California, and your grandparent lives in Texas. Your grandparent wants to give you a pistol as a gift.
- Since your grandparent is yet living, this transfer is not an inheritance.
- Because it is interstate, Texas to California, the pistol must go to a CA FFL - the receiver may not take possession until the transfer has occurred at the CA FFL - so
- CALL the FFL ahead of time to see if he understands interstate intrafamilial transfer; any FFL who suggests you do not need his services for an interstate intrafamilial transfer does NOT understand it.
- ASK about the fees; there are no regulations limiting the transfer fees on interstate transfer.
- ASK whether the FFL will accept a shipment from a non-licensed person; that is legal, but some have a business practice to accept only from other licensed persons.
- Handguns transferred via intrafamilial transfer are NOT subject to the Roster.
- Handguns should be accompanied by a letter of gift, specifying giver's name and relationship (e.g. John Smith, Grandfather), the handgun (e.g. Glock 17 9mm pistol, serial 12345), and the receiver's name (e.g. Little Jimmy Smith).
- Since the transfer must use a CA FFL, the ordinary rules for an FFL transfer must be followed, including background check and 10-day wait. The receiver should be at least 18 years old for a long gun, 21 for a handgun; if a handgun, the receiver must also have a Handgun Safety Certificate.
Definition of infrequent
"Infrequent" means "five or fewer times per year".(PC 16730 )
A usage note
The term is intrafamilial (think 'only Capulets' or 'only Hatfields') instead of interfamilial (think 'Capulets and Montagues' or 'Hatfields and McCoys'). Or, possibly more familiar, interscholastic ('between schools') vs intramural ('within the walls') sports.