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mymitchell
07-06-2005, 11:13 AM
Would a Step-Parent/Child intrafamily transfer be legal? Or do I have to PPT?

My Step Dad wants to give me a Ruger P85 handgun w/15rd mags.

Also the form asks "Acquired From" and the instructions say "Enter the name of the person from whom you obtained possession of the handgun." But does not ask the relationship.

The form asks "How Possession was Obtained". Would "gift from parent" be okay?

I have a current HSC.

Thanks

esskay
07-06-2005, 12:35 PM
Careful there! NO GO on the mags!!! Sorry...

I'm sure someone else will be able to advise you on the family issue.

mymitchell
07-06-2005, 2:12 PM
Originally posted by esskay:
Careful there! NO GO on the mags!!! Sorry...

I'm sure someone else will be able to advise you on the family issue.

Would the mags matter if I do a INTRA-FAMILIAL HANDGUN TRANSACTION?

bwiese
07-06-2005, 2:14 PM
Mymitchell...

<LI> As esskay has said above, under no condition can you accept the 15rd hicap magazines within Calif. (if you received them outside CA, you cannot bring them back in). So you can only transfer the gun, and will have to supply your own 10rd magazine(s). If you haven't owned your hicaps before 12/31/1999, there is essentially NO legal way to take possession of hicaps in CA, nor take possession of them out of state and bring 'em back in.

Gun transfer laws just address the guns. Hicap mag laws specifically ban transfer of hicap mags.

<LI> CA gun law specifies parent/ child/ grandparent relationships are the only ones for interfamilial transfers. I do not know if a step-parent could be considered as a real parent. Other CA law may specify when a step-parent can be considered a true parent. (Asking DOJ staffers will likely get you a random answer for the entirely wrong reason, as this is really family law, not gun law!)

A family attorney might be able to help, but that'll cost more than the DROS fee to do a regular transfer + 10 day wait at the gun shop.

Now, if you do actually share the same last name as your (step)dad and just filled out form as 'gift from parent' this would probably never come up on the radar screen; once the gun's reg'd to you, you're OK - and this is close enough to reality that you'd not likely risk a perjury charge (but I'm not a lawyer...)


Bill Wiese
San Jose

mymitchell
07-06-2005, 2:42 PM
Thank you bwiese

Unfortunatly we do not share the same last name. I've sent an email to the DOJ asking for help in this matter. I'll post thier response.

So what should I do with the clips?
Have my StepDad sell them on GunBroker to someone out of state?

bwiese
07-06-2005, 2:56 PM
Originally posted by mymitchell:
Unfortunatly we do not share the same last name. I've sent an email to the DOJ asking for help in this matter. I'll post thier response.

You still will likely get an incorrect answer from DOJ - or right one but for completely wrong reasons. It'll be a coin toss - this kinda question is outside their expertise, esp as your initial answer will likely be from an 'analyst' (a fancy name for for a clerk) or agent. Neither are lawyers having deep understanding of related law, nor can really legally speak for DOJ, nor can they define California standards for family relationships. (I am sure, somewhere, there is law - possibly case law! - that helps define when/when not a stepparent can be considered a true parent. There may be crazy stuff like you must be 'adopted' by your stepparent, dunno....)



So what should I do with the clips?
Have my StepDad sell them on GunBroker to someone out of state?

Umm, they're magazines, not clips.

YOU should do nothing w/these mags - do NOT take possession of them. Their existing owner should retain them, sell them out of state on GunBroker, AR15.COM, EBay(??), etc.


Bill Wiese
San Jose

Ted_Bell
07-06-2005, 3:15 PM
You owned those mags back in '98.

Have the doj prove otherwise-- they can't.

Find a cop who cares that you have them now -- practically impossible.

Find someone on this board who will make you worry about it -- easy.

s281c
07-06-2005, 3:36 PM
Originally posted by Ted_Bell:
You owned those mags back in '98.

Have the doj prove otherwise-- they can't.

Find a cop who cares that you have them now -- practically impossible.

Find someone on this board who will make you worry about it -- easy.

While it is certainly true that it will be difficult for the DOJ to prove whether or not you owned the hicaps prior to 1999, they can certainly make your life miserable trying to prove otherwise.

Ultimately it's your decision, your money and your butt on the line.

bwiese
07-06-2005, 3:47 PM
Actually, Ted...

<LI> he did NOT own those magazines, and this posting would/could be used against him to show he did not. (Quite easy to get someone's identity from a forum posting...)

<LI> the fact that the gun was transferred to him after 12/31/99, and he has matching hicap mags, would be a red flag for further investigation. If he's not an absolute gun nut (like me who bought (papered) mags for guns I don't even own yet) that's another thing that wouldn't pass a smell test. I'm not a prosecutor or lawyer, and even I could easily get an avg jury to believe this.

<LI> was more than one magazine illegally transferred? More than one count filed.

<LI> I may or may not be correct on this, but a charge of illegal hicap mag transfer might well be an 'escalator' if you're charged with other gun 'crimes' in future (like 1st time CCW conviction = no jail misdemeanor, but it can escalate penalty for 2nd charge...)


Also if there's a situation where this gun comes into question (during vehicle stop, an incident at home, etc.) at best you're unlikely to get mags OR guns back if there's questions. It's hard enough to get guns back from LE even when everything is OK.

And, yes, this (and similar) stuff does happen. I know (and know of) folks who've lost their unreg'd AWs because the cops came to their house thru no fault of their own for entirely unrelated noncriminal matters. Coulda been a felony bust, they were just lucky.

Ted, enjoy your stay in free Nevada. But until you live in metro CA w/antigun democrat cops & prosecutors, pipe down!


Bill Wiese
San Jose

code33
07-06-2005, 5:57 PM
The burden of proof would be on the person in possession NOT law enforcement.

Originally posted by Ted_Bell:


Have the doj prove otherwise-- they can't.

stillbigmac
07-06-2005, 6:49 PM
The burden of proof IS on LAW ENFORCMENT. We are innocent untill proven guilty. Any time we roll over and allow ourselves to produce the proof...we are giving up rights.

Would it be easy to prove... if the DA wants it bad enough.. yeh.

bwiese
07-06-2005, 7:26 PM
While it's true that burden of proof for guilt is on LEO + DA, etc. do remember that possessions have a lower standard for seizure than persons have for arrest.

If there's questions, you can have your goodies taken even w/o your arrest. Again, the bar is set lower for property than persons. You'd have to sue to get them back. The items might be taken as a whole - guns + mags + ammo, even if there were only questions about mags themselves.

Even if/when you sue, successful outcome may only eventually get your property back but no damages or attorney's fees recovered.

So don't count on all these 'protections'. They're out there if you have $$$.

Bill Wiese
San Jose

TrailerparkTrash
07-07-2005, 6:56 AM
Originally posted by bwiese:
Actually, Ted...

<LI> he did NOT own those magazines, and this posting would/could be used against him to show he did not. (Quite easy to get someone's identity from a forum posting...)



That's being paranoid!!! The DOJ can't prove when he aquired those hicaps.........Niether can a street cop. It's virtually impossible to know when a magazine was purchased. The state has the burden of proof to come up with facts when the magazine was purchased.

code33
07-07-2005, 9:42 AM
Yes, in court, the burden is on LE. However, because a mag that can hold more than 10 rounds is currently a prohibited device, mere possession is enough for LEO to seize. The burden is on the person to prove legal possession to get it back.



Originally posted by stillbigbac:
The burden of proof IS on LAW ENFORCMENT. We are innocent untill proven guilty. Any time we roll over and allow ourselves to produce the proof...we are giving up rights.

Would it be easy to prove... if the DA wants it bad enough.. yeh.

Ted_Bell
07-07-2005, 11:38 AM
It's not a prohibited device -- perfectly legal to own and use. Everyone has them and the cops are not running around looking to bust people for posession (since it's not illegal).

Now if you were arrested for some other serious crime, and you had an evil mag, and it was somehow obvious that it was brought into the State after the cutoff date, then maybe they would add that charge to the list. Otherwise nobody (who matters) cares that you have them. Lots of people on this board care because they like to point out all the rules and regulations and make everyone scared to wipe their *** without Arnold's permission.

F'in lawyers running around scaring people are the root of many of our problems. Gotta justify that big salary somehow. Many of the rules we live under are a result of some busy-body lawyer looking for a problem.

code33
07-07-2005, 3:50 PM
What LE would do differs from what they could do.

A full capacity mag is in the Prohibited Device category according to POST. There are exceptions to possession.

Purchase workbook LD40 to see for yourself:
https://docstore.kinkos.com/post_ca

It's sometimes interesting to see what the police recruits are taught in the academy.

C.G.
07-07-2005, 4:03 PM
Originally posted by code33:
What LE would do differs from what they could do.

A full capacity mag is in the Prohibited Device category according to POST. There are exceptions to possession.

Purchase workbook LD40 to see for yourself:
https://docstore.kinkos.com/post_ca

It's sometimes interesting to see what the police recruits are taught in the academy.
Aw, c'mmon don't wag a carrot in front of our noses; give a us a brief, please. http://calguns.net/groupee_common/emoticons/icon_wink.gif

code33
07-08-2005, 9:26 AM
http://img201.imageshack.us/img201/2294/409gj.jpg

C.G.
07-08-2005, 7:21 PM
Originally posted by code33:
http://img201.imageshack.us/img201/2294/409gj.jpg

Thanks for posting this; it is obviously not very clear at all. I imagine the LEs take it at face value: NO HICAPS FOR ANYBODY BUT LE!

code33
07-09-2005, 9:19 AM
It does state "not continuously possessed by the same owner prior to January 1, 2000." Meaning, one must have had it prior to that date.

All this stuff is written by a bunch of lawyers. A lot of it requires a second look or more to understand. I suppose that's why there are instructors, to explain and clarify these topics.

monkey
07-09-2005, 11:18 AM
Regarding the Intrafamilial transfer, a step-parent does not have legal rights over the wife's child. He is your mother's husband, he has no legal parental or guardianship rights over you, therefore he cannot transfer a firearm to you in this manner. He would need to legally adopt you for this transfer to qualify as "Familial." "Step-parent" and "Parent-in-law" have no legal meaning, they are just explanations of relationship. Once an adoption occurs (even between a step-parent and a fully-adult child), then they become a legal parent with all the rights of a biological parent.

bwiese
07-09-2005, 11:27 AM
Thank you, Monkey, for a good answer.

Bill Wiese
San Jose

mymitchell
07-11-2005, 10:39 AM
Originally posted by Monkey:
Regarding the Intrafamilial transfer, a step-parent does not have legal rights over the wife's child. He is your mother's husband, he has no legal parental or guardianship rights over you, therefore he cannot transfer a firearm to you in this manner. He would need to legally adopt you for this transfer to qualify as "Familial." "Step-parent" and "Parent-in-law" have no legal meaning, they are just explanations of relationship. Once an adoption occurs (even between a step-parent and a fully-adult child), then they become a legal parent with all the rights of a biological parent.

Thanks Monkey.

I'll get some 10 rnd mags and do a PPT.

http://calguns.net/groupee_common/emoticons/icon_smile.gif Thank you forum for your input