Difference between revisions of "Buying and selling firearms in California"
(add link to Calguns post)
(→Selling as a Private Party)
|Line 390:||Line 390:|
(c) As used in this section, "transaction" means a single sale,
(c) As used in this section, "transaction" means a single sale,
lease, or transfer of any number of handguns.
lease, or transfer of any number of handguns.
==="Transactions" in the law===
==="Transactions" in the law===
Revision as of 04:00, 16 April 2014
Buying and Selling Firearms in California
Since 1991, substantially all firearms transfers are required to use a California-licensed FFL. There are no legal 'paperless' or 'face to face' handgun transfers, and as of 2014, no longer any way to sell long guns FTF.
- Unless you are exempt, there will be a 10-day wait from submitting the DROS until you may legally pick up your purchase.
- Unless you are exempt, or purchasing a handgun via Private Party Transfer, you may purchase only one handgun in 30 days.
In both cases, the time of the waiting period begins at the time the DROS is submitted to the state.
- 1 Buying Firearms - Federal Law
- 2 Buying Firearms from a California FFL
- 3 Buying HANDGUNS from a California FFL
- 4 Buying rifles and shotguns from a California FFL
- 5 Buying from a Private Party - PPT
- 5.1 You must use a California FFL
- 5.2 PPT exempt from 1 handgun in 30 days
- 5.3 As implemented, both parties must be present at the transferring FFL to initiate the transaction
- 5.4 As implemented, both parties must be California residents
- 5.5 Standard dealer requirements
- 5.6 Standard handgun requirements
- 6 Selling on Consignment
- 7 Selling as a Private Party
- 8 Buying from a Private Party WITHOUT a Dealer
- 9 Shipping
- 10 Locks, Safes, and Laws
Buying Firearms - Federal Law
All Federal Firearms Licensees - FFLs - are subject to Federal law as well as state and local laws.
Reference: The Law
Federal law governing firearms transfer and sales is primarily contained in Title 18 of United States Code, sections 921 through 930. (921-Definitions, 922-Unlawful Acts, 923-Licensing, 924-Penalties, especially 922, are generally the more important sections for individuals.)
Federal Law - 18 USC 922(d) and (g) - specifies acts which will disqualify a person from legally buying, owning or possessing a gun or ammunition. BATFE has a clear summary:
... a person who – (1) Has been convicted in any court of a crime punishable by imprisonment for a term exceeding 1 year; (2) Is a fugitive from justice; (3) Is an unlawful user of or addicted to any controlled substance; (4) Has been adjudicated as a mental defective or has been committed to a mental institution; (5) Is an alien illegally or unlawfully in the United States or an alien admitted to the United States under a nonimmigrant visa; (6) Has been discharged from the Armed Forces under dishonorable conditions; (7) Having been a citizen of the United States, has renounced his or her citizenship; (8) Is subject to a court order that restrains the person from harassing, stalking, or threatening an intimate partner or child of such intimate partner; or (9) Has been convicted of a misdemeanor crime of domestic violence cannot lawfully receive, possess, ship, or transport a firearm. A person who is under indictment or information for a crime punishable by imprisonment for a term exceeding 1 year cannot lawfully receive a firearm.
The disqualifying conditions are all in the questions asked on the Federal form 4473, Firearm Transaction Record. (A scanned image of the 2005 version of the 4473 is here).
Completing the form 4473 is the specified method for the dealer to obey 18 USC 923(g) record keeping requirements for firearms transfers.
Restoration of rights to own firearms is beyond the scope of this article.
Restrictions on Dealers
18 USC 922(b)
(b) It shall be unlawful for any licensed importer, licensed manufacturer, licensed dealer, or licensed collector to sell or deliver— (1) any firearm or ammunition to any individual who the licensee knows or has reasonable cause to believe is less than eighteen years of age, and, if the firearm, or ammunition is other than a shotgun or rifle, or ammunition for a shotgun or rifle, to any individual who the licensee knows or has reasonable cause to believe is less than twenty-one years of age;
An FFL must not deliver a handgun to anyone younger than 21, nor a long gun to anyone under 18.
(2) any firearm to any person in any State where the purchase or possession by such person of such firearm would be in violation of any State law or any published ordinance applicable at the place of sale, delivery or other disposition, unless the licensee knows or has reasonable cause to believe that the purchase or possession would not be in violation of such State law or such published ordinance;
An FFL must also obey state laws.
(3) any firearm to any person who the licensee knows or has reasonable cause to believe does not reside in ... the State in which the licensee’s place of business is located,...
An FFL must not deliver to unlicensed individuals who do not live in the same state as the FFL's business.
Buying Firearms from a California FFL
With some exceptions, if one does not hold an FFL and is not also licensed by the State of California, one MUST use an FFL for all kinds of firearm transfers - sales, trades, loans. Penal Code 26500 (was 12070)
(a) No person shall sell, lease, or transfer firearms unless the person has been issued a license pursuant to Article 1 (commencing with Section 26700) and Article 2 (commencing with Section 26800) of Chapter 2. (b) Any person violating this article is guilty of a misdemeanor.
California FFLs must obey Federal laws, such as documenting their sales with a Federal form 4473.
California FFLs must also obey California laws.
In addition to the Federal buyer disqualifications and age limits (21 years old for handguns and handgun ammunition), California has its own list of disqualifying acts in Penal Code 29800 (was 12021).
Clear evidence of identity and age
A buyer is required to provide evidence of identity and age Penal Code 16400
As used in this part, "clear evidence of the person's identity and age" means either of the following: (a) A valid California driver's license. (b) A valid California identification card issued by the Department of Motor Vehicles.
Dealer's Record of Sale (DROS)
FFLs must enter much of the same information required by the Federal 4473 into the California Dealer's Record of Sale system. Submission of the DROS information 'starts the clock' on the 10-day wait and initiates the buyer background check process. See Penal Code 28100.
California requires that the dealer retain the gun for 10 days - 10 24-hour periods (see DOJ FAQ # 29) - before delivery is allowed. Penal Code 26815 (was 12071(b)(3)(A) and Penal Code 12072(c)(1)) The 10-day wait begins when the FFL submits the DROS information.
There is an exception for C&R firearms and C&R/03 FFLs: Penal Code 26970 (was 12072(t)(1)):
(a) The waiting period described in Section 26815 does not apply to the sale, delivery, loan, or transfer of a firearm if all of the following conditions are satisfied: (1) The firearm is a curio or relic, as defined in Section 478.11 of Title 27 of the Code of Federal Regulations, or its successor. (2) The sale, delivery, loan, or transfer is made by a dealer. (3) The sale, delivery, loan, or transfer is made to a person who is licensed as a collector pursuant to Chapter 44 (commencing with Section 921) of Title 18 of the United States Code and the regulations issued pursuant thereto. (4) The licensed collector has a current certificate of eligibility issued by the Department of Justice pursuant to Section 26710. (b) On the date that the sale, delivery, or transfer is made, the dealer delivering the firearm shall transmit to the Department of Justice an electronic or telephonic report of the transaction as is indicated in Section 28160 or 28165.
Note that while the background check occurs during the mandated 10-day wait, that background check is not valid beyond 30 days. Code of Federal Regulations says
§ 478.102 Sales or deliveries of firearms on and after November 30, 1998. (c) Time limitation on NICS checks. A NICS check conducted in accordance with paragraph (a) of this section may be relied upon by the licensee only for use in a single transaction, and for a period not to exceed 30 calendar days from the date that NICS was initially contacted. If the transaction is not completed within the 30-day period, the licensee shall initiate a new NICS check prior to completion of the transfer.
If, for some reason, one delays completing a transaction beyond that 30 days, a new DROS and new fee and 10-day waiting period are required. FFL dealers are required to post a sign informing buyers of that requirement.
Law enforcement can be exempt
LEO may be exempt from the 10-day wait, IF the buyer has a letter from the head of his/her employing agency. See the DOJ website.
Locks or safety devices are required
Penal Code 23635 (was 12088.1)
(a) Any firearm sold or transferred in this state by a licensed firearms dealer, including a private transfer through a dealer, and any firearm manufactured in this state, shall include or be accompanied by a firearm safety device that is listed on the Department of Justice's roster of approved firearm safety devices and that is identified as appropriate for that firearm by reference to either the manufacturer and model of the firearm, or to the physical characteristics of the firearm that match those listed on the roster for use with the device. ...
Buying HANDGUNS from a California FFL
California requires that dealers sell handguns on the Roster of Handguns Certified for Sale (Safe Handgun List article) unless the buyer qualifies for one of the exemptions. The DROS system enforces use of the Roster or allows entry of the exemptions.
LEO exempt from the Roster
By ruling of the Attorney General, documented on the DOJ web site, law enforcement members are exempt from the Roster without letters from their respective employing agencies.
Buyer documentation and gun handling
Satisfactory documentation shall include a utility bill from within the last three months, a residential lease, a property deed, or military permanent duty station orders indicating assignment within this state, or other evidence of residency as permitted by the Department of Justice.
a) Commencing January 1, 2003, except as authorized by the department, no firearms dealer may deliver a handgun unless the recipient performs a safe handling demonstration with that handgun. (b) The safe handling demonstration shall commence with the handgun unloaded and locked with the firearm safety device with which it is required to be delivered, if applicable. While maintaining muzzle awareness, that is, the firearm is pointed in a safe direction, preferably down at the ground, and trigger discipline, that is, the trigger finger is outside of the trigger guard and along side of the handgun frame, at all times, the handgun recipient shall correctly and safely perform the following: (1) If the handgun is a semiautomatic pistol, the steps listed in Section 26853. (2) If the handgun is a double-action revolver, the steps listed in Section 26856. (3) If the handgun is a single-action revolver, the steps listed in Section 26859.
California requires that the dealer retain the handgun for 10 days - 10 24-hour periods - before delivery is allowed. The 10-day wait begins when the FFL submits the DROS information.
One handgun per month
With some exceptions listed in Penal Code 27535 (was 12072(a)(9)(B)), one may purchase only one handgun within any 30-day period. The 30-day period begins when the FFL submits the DROS information.
One of those exceptions is for California residents with a state Certificate of Eligibility and a Federal Curio and Relic (Collector's) FFL. Such purchases are NOT limited to C&R handguns - the law does not make that restriction.
(a) No person shall make an application to purchase more than one handgun within any 30-day period. (b) Subdivision (a) shall not apply to any of the following: ... (9) Any person who is licensed as a collector pursuant to Chapter 44 (commencing with Section 921) of Title 18 of the United States Code and the regulations issued pursuant thereto, and has a current certificate of eligibility issued by the Department of Justice pursuant to Article 1 (commencing with Section 26700) of Chapter 2.
(Certificate of Eligibility is PC 26710)
(a) A person may request a certificate of eligibility from the Department of Justice. (b) The Department of Justice shall examine its records and records available to the department in the National Instant Criminal Background Check System in order to determine if the applicant is prohibited by state or federal law from possessing, receiving, owning, or purchasing a firearm. (c) The department shall issue a certificate to an applicant if the department's records indicate that the applicant is not a person who is prohibited by state or federal law from possessing firearms. (d) The department shall adopt regulations to administer the certificate of eligibility program and shall recover the full costs of administering the program by imposing fees assessed to applicants who apply for those certificates.
See link. Plan to buy a handgun which comes with a California-approved lock, or to buy a separate lock.
Buying rifles and shotguns from a California FFL
For Semiautomatic Rifles, see that topic on the Main Page.
Buying rifles and shotguns is far less complicated than buying handguns.
Standard dealer requirements
The buyer will need to complete the Federal 4473 and the California DROS, and will pay a fee.
There will be a waiting period, unless the buyer is exempt.
The buyer will need a firearms safety device, either a lock or a safe affidavit or some other acceptable solution.
Differences from handgun purchases
Buyers may be 18 or older.
No 'safety certificate' or 'handling demonstration' is required.
There is no 'list' of approved rifles, though California does define 'assault weapons' which may not be purchased without a permit or Law Enforcement status. Semiautomatic rifles which are not 'assault weapons' may be purchased as freely as bolt-action or lever-action rifles.
There is no limit on the number of rifles or shotguns which may be purchased, either at one time or across any interval.
DROS does not record make, model or caliber/gauge of a long gun. Section "D" of the Federal 4473 does collect that information for long guns.
Frames and receivers are 21 and older
[www.atf.gov/publications/newsletters/ffl/ffl-newsletter-2009-11.pdf BATF FFL Newsletter] says
Age Restriction & Interstate Transfer Reminders Licensees are reminded that firearm frames, receivers, and other firearms that are neither handguns nor long guns (rifles or shotguns) are considered “Other Firearms.” They cannot be sold or delivered by a licensee to any person under 21 years of age.
California DROS does not make that distinction, but FFLs must also follow Federal law.
Buying from a Private Party - PPT
- Note that "private party transfer" is shorthand for a legal description of a kind of transfer, meaning more than a transaction between two parties who are not licensed dealers.
Private Party Transfers - PPT - are authorized by Penal Code 28050 (was 12082)
(a) A person shall complete any sale, loan, or transfer of a firearm through a person licensed pursuant to Sections 26700 to 26915, inclusive, in accordance with this chapter in order to comply with Section 27545. (b) The seller or transferor or the person loaning the firearm shall deliver the firearm to the dealer who shall retain possession of that firearm. (c) The dealer shall then deliver the firearm to the purchaser or transferee or the person being loaned the firearm, if it is not prohibited, in accordance with Section 27540.
You must use a California FFL
28050 specifies a dealer licensed according to Penal Code 26700.
FFLs are required to conduct PPTs. In a March 6, 2001 memo "Requirement for Firearms Dealers to Conduct Private Party Transfers / Allowable Fees" the California Department of Justice states
Firearms dealers are required to conduct private party transfers pursuant to Penal Code section 12071(b)(5). Dealers may not limit the days or hours in which private party transfers are conducted.
PPT exempt from 1 handgun in 30 days
A Private Party Transaction is exempt from the one handgun in 30 days rule. (Penal Code 27535(b)(8))
(b) Subdivision (a) shall not apply to any of the following: ... (8) Any transaction conducted through a licensed firearms dealer pursuant to Chapter 5 (commencing with Section 28050).
The City of Los Angeles, however, has ordinance "SEC. 55.14. SALE OR PURCHASE OF MORE THAN ONE HANDGUN WITHIN A THIRTY DAY PERIOD PROHIBITED." from March of 1999. It substantially mirrors the state law, but does NOT have the exemption for Private Party Transfers. Because it falls outside the state preemptions regarding gun laws in Government Code, it is presumptively legal.
As implemented, both parties must be present at the transferring FFL to initiate the transaction
Ordinarily both parties appear at the same time, but it is possible to do some paperwork separately, similar to a consignment. Ask your FFL.
- At one time this Calguns post on split-PPT might have been useful. In 2011, the DOJ has been rejecting this method, and the proper, accepted use of PPT requires both parties to the transfer to physically appear at the same CA FFL.
As implemented, both parties must be California residents
Note: revisions to this subsection are possible in the future; Mar 23 2009.
The DROS software will accept only California-issued identification, or military identification with Permanent Change of Station (PCS) orders to California for PPT transactions.
There appear to be two reasons for this:
- If one party is not from California, the transfer becomes INTERSTATE and is governed by Federal Law (18 USC 922(a)(3) and (a)5))in addition to California Law and
- The Dealer Record of Sale software (DROS -- see page 40 in the .pdf) will accept only California or military identification documents.
This last would seem to apply only to the buyer - why then would the seller be subject to DROS? The dealer must be prepared for the buyer to fail the background check. If that were to occur, the dealer would have to attempt to convey the gun back to the seller - and that return requires a background check on the seller. To wit: Part of Penal Code 12082(a)
...If the dealer cannot legally deliver the firearm to the purchaser or transferee or the person being loaned the firearm, the dealer shall forthwith, without waiting for the conclusion of the waiting period described in Sections 12071 and 12072, return the firearm to the transferor or seller or the person loaning the firearm. The dealer shall not return the firearm to the seller or transferor or the person loaning the firearm when to do so would constitute a violation of subdivision (a) of Section 12072.
12072. (a) (1) No person, corporation, or firm shall knowingly supply, deliver, sell, or give possession or control of a firearm to any person within any of the classes prohibited by Section 12021 or 12021.1. (2) No person, corporation, or dealer shall sell, supply, deliver, or give possession or control of a firearm to any person whom he or she has cause to believe to be within any of the classes prohibited by Section 12021 or 12021.1 of this code or Section 8100 or 8103 of the Welfare and Institutions Code.
To determine eligibility under 12072, the background check, initiated through the DROS system, must occur.
Standard dealer requirements
The buyer must submit all the necessary Federal 4473 and DROS information and wait the mandatory ten days before picking up the gun.
The buyer must have a firearms safety device for each gun. Penal Code 12088.1
Standard handgun requirements
The buyer must be at least 21 years old.
The buyer must have the Handgun Safety Certificate (Penal Code 12071(a)(8)(B))and perform the safe handling demonstration required by Penal Code 12071(a)(8)(D)
Handguns transferred through PPT are exempt from the Roster. (Penal Code 12132(a))
Handguns transferred through PPT are exempt from the 1 per 30 days rule. (Penal Code 12072(a)(9)(B)(viii)) Note that the City of Los Angeles has a local ordinance imposing 1 in 30 days even on PPT.
Selling on Consignment
A California gun dealer who accepts guns on consignment for sale is defined as a "secondhand dealer" by Business and Professions Code Section 21626. Such a "secondhand dealer" is required by Business and Professions Code 21628.2 to
electronically report to the department each firearm purchased, taken in trade, taken in pawn, accepted for sale on consignment, or accepted for auctioning.
and such dealers are required by Section 21636 to
retain in his or her possession for a period of 30 days all tangible personal property reported under Sections 21628, 21629, and 21630, and commencing July 1, 2010, Section 21628.2. The 30-day holding period with respect to this tangible personal property shall commence with the date the report of its acquisition was made to the chief of police or to the sheriff by the secondhand dealer and coin dealer.
This level of business practice is mostly of interest to licensed FFLs, but the effect on buyers here is that consignment guns must be held for 30 days after being accepted by a dealer, and cannot be delivered to a buyer before the 31st day.
Selling as a Private Party
There is a small limitation on the number of occasions of sales; the penal code says PPT is for "infrequent" transactions, and PC 16730 (was 12070 (c)) says
(a) As used in Section 31815 and in Division 6 (commencing with Section 26500) of Title 4, "infrequent" means: (1) For handguns, less than six transactions per calendar year. (2) For firearms other than handguns, occasional and without regularity. ... (c) As used in this section, "transaction" means a single sale, lease, or transfer of any number of handguns.
The intent here is to prevent buying and selling guns for a living, aka 'dealing without a license'.
"Transactions" in the law
Transactions, in this context, apply only to sellers. A transaction, a sale to one buyer, may include any number of firearms in that sale.
Federal law on 'dealing without a license'
In addition to California law, Federal law must be considered; Calguns member Fiddletown has posted a detailed discussion here.
Buying from a Private Party WITHOUT a Dealer
As of Jan 1, 2014, this exception has been written out of California law.
(b) This section shall remain in effect only until January 1, 2014, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2014, deletes or extends that date.
Penal Code 27545 requires 2 non-licensed individuals to use an FFL in a Penal Code 12082 Private Party Transfer.
Federal law allows residents of the same state to ship firearms to other residents of the same state via common carrier (but generally not USPS.) ATF Publication P 5300.4 — Federal Firearms Regulations Reference Guide 2005 on Page 177 states:
(B8) May a nonlicensee ship a firearm by common or contract carrier? A nonlicensee may ship a firearm by a common or contract carrier to a resident of his or her own State or to a licensee in any State. A common or contract carrier must be used to ship a handgun. In addition, Federal law requires that the carrier be notified that the shipment contains a firearm and prohibits common or contract carriers from requiring or causing any label to be placed on any package indicating that it contains a firearm. [18 U.S.C. 922(a)(2)(A), 922(a) (3), 922(a)(5) and 922(e), 27 CFR 478.31 and 478.30]
Locks, Safes, and Laws
There are two sets of laws to satisfy, state AND Federal.
(a) Any firearm sold or transferred in this state by a licensed firearms dealer, including a private transfer through a dealer, and any firearm manufactured in this state, shall include or be accompanied by a firearm safety device that is listed on the Department of Justice's roster of approved firearm safety devices and that is identified as appropriate for that firearm by reference to either the manufacturer and model of the firearm, or to the physical characteristics of the firearm that match those listed on the roster for use with the device.
California law will accept many items to satisfy this requirement - a lock, a safe, a lock-box, or an internal lock designed into the firearm - as a 'firearms safety device' and maintains a list, the Roster of Firearm Safety Devices Certified for Sale.
California will accept a gun lock,with conditions:
(c) The sale or transfer of a firearm shall be exempt from subdivision (a) if all of the following apply: (1) The purchaser or transferee purchases an approved safety device no more than 30 days prior to the day the purchaser or transferee takes possession of the firearm. (2) The purchaser or transferee presents the approved safety device to the firearms dealer when picking up the firearm. (3) The purchaser or transferee presents an original receipt to the firearms dealer, which shows the date of purchase, the name, and the model number of the safety device. (4) The firearms dealer verifies that the requirements in paragraphs (1) to (3), inclusive, have been satisfied. (5) The firearms dealer maintains a copy of the receipt along with the dealer's record of sales of firearms.
California will accept a gun safe as a firearms safety device
(b) The sale or transfer of a firearm shall be exempt from subdivision (a) if both of the following apply: (1) The purchaser or transferee owns a gun safe that meets the standards set forth in Section 23650. Gun safes shall not be required to be tested, and therefore may meet the standards without appearing on the Department of Justice roster. (2) The purchaser or transferee presents an original receipt for purchase of the gun safe, or other proof of purchase or ownership of the gun safe as authorized by the Attorney General, to the firearms dealer. The dealer shall maintain a copy of this receipt or proof of purchase with the dealer's record of sales of firearms.
other proof in (b)(2), above, includes the Safe Affidavit, but that works only for California law - see further, below.
California law - Penal Code 23630 (was 12088.8) - exempts "antique firearms" and firearms sold to LEO "for purposes of law enforcement" from the safety device requirement.
HOWEVER, Federal Law (Child Safety Lock Act of 2005) has introduced a complication with handgun purchases.
18 USC 922(z) requires
(z) Secure Gun Storage or Safety Device.— (1) In general.— Except as provided under paragraph (2), it shall be unlawful for any licensed importer, licensed manufacturer, or licensed dealer to sell, deliver, or transfer any handgun to any person other than any person licensed under this chapter, unless the transferee is provided with a secure gun storage or safety device (as defined in section 921 (a)(34)) for that handgun.
and 18 USC 921(a)(34) has the definition
(34) The term “secure gun storage or safety device” means— (A) a device that, when installed on a firearm, is designed to prevent the firearm from being operated without first deactivating the device; (B) a device incorporated into the design of the firearm that is designed to prevent the operation of the firearm by anyone not having access to the device; or (C) a safe, gun safe, gun case, lock box, or other device that is designed to be or can be used to store a firearm and that is designed to be unlocked only by means of a key, a combination, or other similar means.
The Bureau of Alcohol, Tobacco, Firearms and Explosives has yet to issue a regulation which recognizes 18 USC 921(a)(34)(C).
In practice, that means that California and Federal law are different on what is acceptable -- and safe for dealers to accept. For long guns, California FFLs may accept the safe affidavit; but for handguns, because BATFE has not yet ruled, the safe affidavit is NOT acceptable, and buyers may expect to purchase a gun lock with each handgun.
Anecdotal evidence at Calguns suggests that BATFE is in fact specifically refusing to accept the California safe affidavit. See this Calguns post for a reproduction of the letter BATF has sent.
BATFE enforcement of this appears problematical; there seems to be no record keeping requirement to establish the lock presence on delivery in Federal paperwork.