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yzernie
10-19-2010, 9:27 PM
I have a recently retired LEO who wants to purchase an off-list handgun. When I told him that once he retires he is no longer exempt from the list he insists he can still purchase an off-list hand gun based upon the Title 18 comments on the back of his retired ID card. I called CaDoJ this afternoon and the lady there was not really much help.

I just want to confirm my opinion is correct...that a retired LEO has no exemption to the safe handgun list any longer.

hk-p2000
10-19-2010, 10:00 PM
thats kind of interesting, just to know if they still qualify.

Blademan21
10-19-2010, 10:20 PM
Hey Ernie
I asked the same question at ProForce for a retired CHP friend of mine. I was told he no longer is able to purchase off list handguns since he is retired. Might call and ask to double check.

code33
10-19-2010, 10:33 PM
12125. (a) Commencing January 1, 2001, any person in this state who manufactures or causes to be manufactured, imports into the state for sale, keeps for sale, offers or exposes for sale, gives, or lends any unsafe handgun shall be punished by imprisonment in a county jail not exceeding one year.
(b) This section shall not apply to any of the following:
(4) The sale or purchase of any pistol, revolver or other firearm capable of being concealed upon the person, if the pistol, revolver, or other firearm is sold to, or purchased by, the Department of Justice, any police department, any sheriff's official, any marshal's office, the Youth and Adult Correctional Agency, the California Highway Patrol, any district attorney's office, or the military or naval forces of this state or of the United States for use in the discharge of their official duties. Nor shall anything in this section prohibit the sale to, or purchase by, sworn members of these agencies of any pistol, revolver, or other firearm capable of being concealed upon the person.

Librarian
10-20-2010, 12:31 AM
I have a recently retired LEO who wants to purchase an off-list handgun. When I told him that once he retires he is no longer exempt from the list he insists he can still purchase an off-list hand gun based upon the Title 18 comments on the back of his retired ID card. I called CaDoJ this afternoon and the lady there was not really much help.

I just want to confirm my opinion is correct...that a retired LEO has no exemption to the safe handgun list any longer.
You have that right. Retired LEO are no longer exempt as LEO. It's possible that an individual might be exempt under some other reason, but retired LEO is no longer sworn, no longer a member of an agency.

jtmkinsd
10-20-2010, 12:32 AM
I have a recently retired LEO who wants to purchase an off-list handgun. When I told him that once he retires he is no longer exempt from the list he insists he can still purchase an off-list hand gun based upon the Title 18 comments on the back of his retired ID card. I called CaDoJ this afternoon and the lady there was not really much help.

I just want to confirm my opinion is correct...that a retired LEO has no exemption to the safe handgun list any longer.

I believe the reason you got no help from DOJ is because Title 18 supersedes state law

Here is my take on it:

Title 18 is a Federal law which does supersede any state law:

(a) Notwithstanding any other provision of the law of any State or any political subdivision thereof, an individual who is a qualified retired law enforcement officer and who is carrying the identification required by subsection (d) may carry a concealed firearm that has been shipped or transported in interstate or foreign commerce, subject to subsection (b).

Being a Federal law superseding state law, we must take the Federal definition of a "firearm" (concealable in this case). So the list would not apply to retired LE. I do DROS off list handguns for retired LE under this premise. I'm NOT saying it is 100% the way it is, just an interpretation which I believe to be sound. And I haven't run into any problems in the past over this.

SVT-40
10-20-2010, 1:10 AM
Where does Title 18 mention anything about "purchasing"?

The federal law does supersede state laws regarding "carrying".

But it is mute to anything about superseding state laws regarding the purchase of a concealable firearm.

Using the same logic would then a retired or active LEO have to wait the required ten days to pick up his hand gun? Or would the state of California be forced to preform a telephonic NICS and allow the retired or active LEO have the firearm without waiting the ten days?

I don't think so.

jtmkinsd
10-20-2010, 1:17 AM
Where does Title 18 mention anything about "purchasing"?

The federal law does supersede state laws regarding "carrying".

But it is mute to anything about superseding state laws regarding the purchase of a concealable firearm.

Using the same logic would then a retired or active LEO have to wait the required ten days to pick up his hand gun? Or would the state of California be forced to preform a telephonic NICS and allow the retired or active LEO have the firearm without waiting the ten days?

I don't think so.

(d) may carry a concealed firearm that has been shipped or transported in interstate or foreign commerce, subject to subsection (b).

The law states LE can carry when retired...and what they can carry. There is no mention of waiting periods and such so the state law for that portion does apply. As well as the 1 in 30 day rule, high cap mag law, yadda yadda ya.

Ron-Solo
10-20-2010, 1:23 AM
I think Ernie is right, that's why I just DROS'd another LCP today and I'm collecting all the hicaps I think I might need because I'm retiring in March.

My local LE Gun Store agrees with Ernie and ProForce on this one. Carry and purchase are not the same thing.

jtmkinsd, while I like your way of thinking, I think you may be treading on dangerous ground.

jtmkinsd
10-20-2010, 1:42 AM
I think Ernie is right, that's why I just DROS'd another LCP today and I'm collecting all the hicaps I think I might need because I'm retiring in March.

My local LE Gun Store agrees with Ernie and ProForce on this one. Carry and purchase are not the same thing.

jtmkinsd, while I like your way of thinking, I think you may be treading on dangerous ground.

I understand the hesitancy on this issue...but the key is in what I got from DOJ. Just like Ernie I called many moons ago, and got the run around...A call to ATF got me a little more information (I think both agencies are scared of the other...lol) but the way the conversations ended up, Title 18 was the overriding authority and the language is fairly clear...I understand the risk...but I believe this one to be very defensible :D

tenpercentfirearms
10-20-2010, 7:03 AM
Title 18 is a Federal law which does supersede any state law:

(a) Notwithstanding any other provision of the law of any State or any political subdivision thereof, an individual who is a qualified retired law enforcement officer and who is carrying the identification required by subsection (d) may carry a concealed firearm that has been shipped or transported in interstate or foreign commerce, subject to subsection (b).

Being a Federal law superseding state law, we must take the Federal definition of a "firearm" (concealable in this case). So the list would not apply to retired LE. I do DROS off list handguns for retired LE under this premise. I'm NOT saying it is 100% the way it is, just an interpretation which I believe to be sound. And I haven't run into any problems in the past over this.

Am I the only one who is not following the logic here? First, the very first sentence is "Notwithstanding any other provision of the law of any state". The State of California says they are not exempt from the list, so that there is your withstanding any other provision of the law.

Second, this authorizes them to carry a concealed firearm that has been shipped or transported in interstate commerce. I am not following how this authorizes them to purchase an handgun that is not on the approved list of handguns for sale. If you are implying that the language about being shipped or transported in interstate commerce authorizes them to conduct interstate commerce in firearms, I believe you are 100% wrong. The only reason that language is in there is Congress has no authority to tell the states what to do. However, Congress can regulate interstate commerce. So if a firearm is transported or shipped across state lines, then Congress very loosely believes it is now their business. So they are saying that federally speaking, such firearms are legal to carry concealed. If you purchase and keep a handgun that was manufactured, bought, and is kept in your home state of California, then this section does not apply because the handgun was never involved in interstate commerce. As soon as you take it to Nevada with you, then it is legal for retired LEO to carry it concealed.

Seriously, you are going to have to do a much better job of explaining your "soundness" on this one as it doesn't make any sense to me at all. If it were me, I would want to have a much clearer argument than this. You might even want to bounce it off your lawyer.

glockman19
10-20-2010, 9:28 AM
I have a recently retired LEO who wants to purchase an off-list handgun. When I told him that once he retires he is no longer exempt from the list he insists he can still purchase an off-list hand gun based upon the Title 18 comments on the back of his retired ID card. I called CaDoJ this afternoon and the lady there was not really much help.

I just want to confirm my opinion is correct...that a retired LEO has no exemption to the safe handgun list any longer.

YES you are correct. He is no longer a Sworn Officer. No Exemption. Now if he were to continue as a reserve he might still be sworn.


I think Ernie is right, that's why I just DROS'd another LCP today and I'm collecting all the hicaps I think I might need because I'm retiring in March.

My local LE Gun Store agrees with Ernie and ProForce on this one. Carry and purchase are not the same thing.

jtmkinsd, while I like your way of thinking, I think you may be treading on dangerous ground.

Thank you.
:hurray:

yzernie
10-20-2010, 9:48 AM
Thanks fellas. I was confident I was correct but needed to get the opinions of some of the experts here.

Cali State rules do in many ways and forms trump the federal rules. In any other state than this one it wouldn't even be an issue but we have to deal with what we have here.

Librarian
10-20-2010, 10:04 AM
I believe the reason you got no help from DOJ is because Title 18 supersedes state law

Here is my take on it:

Title 18 is a Federal law which does supersede any state law:

(a) Notwithstanding any other provision of the law of any State or any political subdivision thereof, an individual who is a qualified retired law enforcement officer and who is carrying the identification required by subsection (d) may carry a concealed firearm that has been shipped or transported in interstate or foreign commerce, subject to subsection (b).

Being a Federal law superseding state law, we must take the Federal definition of a "firearm" (concealable in this case). So the list would not apply to retired LE. I do DROS off list handguns for retired LE under this premise. I'm NOT saying it is 100% the way it is, just an interpretation which I believe to be sound. And I haven't run into any problems in the past over this.

18 USC 926B (http://www.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00000926---B000-.html) is, on its face, only about carry.

Before acting on any different interpretation, I think I would consult my attorney. A real legal opinion you pay for is the one most likely to be safe.

jtmkinsd
10-20-2010, 10:11 AM
Am I the only one who is not following the logic here? First, the very first sentence is "Notwithstanding any other provision of the law of any state". The State of California says they are not exempt from the list, so that there is your withstanding any other provision of the law.

Second, this authorizes them to carry a concealed firearm that has been shipped or transported in interstate commerce. I am not following how this authorizes them to purchase an handgun that is not on the approved list of handguns for sale. If you are implying that the language about being shipped or transported in interstate commerce authorizes them to conduct interstate commerce in firearms, I believe you are 100% wrong. The only reason that language is in there is Congress has no authority to tell the states what to do. However, Congress can regulate interstate commerce. So if a firearm is transported or shipped across state lines, then Congress very loosely believes it is now their business. So they are saying that federally speaking, such firearms are legal to carry concealed. If you purchase and keep a handgun that was manufactured, bought, and is kept in your home state of California, then this section does not apply because the handgun was never involved in interstate commerce. As soon as you take it to Nevada with you, then it is legal for retired LEO to carry it concealed.

Seriously, you are going to have to do a much better job of explaining your "soundness" on this one as it doesn't make any sense to me at all. If it were me, I would want to have a much clearer argument than this. You might even want to bounce it off your lawyer.

Notwithstanding = In spite of, or regardless of any other state law. If it's so clear cut, just give a call to DOJ and see how clear it is. I've had face to face discussions with both ATF and DOJ agents when they've been to the shop. From those discussions I've come to the conclusions I have on this issue. As I've explained, I've been transferring off-roster concealeable firearms to retired LE since the law passed in 2004, and haven't had a problem in that time. Your interpretation gives CA the abilitity to control what a CA resident buys in another state...which is a little far reaching IMHO. Nowhere in CA law does it say it is illegal for anyone to purchase an off-list handgun outside California...I don't need California's permission to buy anything outside CA. The provision allows the interstate shipping of firearms for concealable carry in CA for retired LE...and as I said, Federal law, superseding state law, I use the Federal definition of a firearm. In 18 USC 926B there is clear language of what a "firearm" is not...so what is a firearm is equally clear.

Hopefully, none of this is going to matter in the near future. But as I said, although I'm comfortable enough with my interpretation to process these transactions, as with any part of gun law, it's up to everyone individually as to what they want to do. Legal "opinions" from attorneys are a waste of money for the most part. If something were to happen where I needed an attorney, I'd be paying for a defense in any case.

As an aside, one of the retired LE I've transfered off-list carry guns to is also a criminal defense attorney.

aquaelvis
10-20-2010, 10:21 AM
I have heard several of the "old farts" in my dept talk about getting guns before they retire. I think it is a given that after you retire, you aren't getting off list guns any longer.
Of course it would be very hard for me to believe that a retired LEO can't find the gun he wants sitting in the safe of one of the guys he used to work with. So given a retired LEO's access to active LEOs I can't imagine an issue with them getting a gun they wanted. (unless he was a real *****) Off lists are still available for non-LEO through PPT so there shouldn't be much of a problem.

6172crew
10-20-2010, 11:36 AM
18 USC 926B (http://www.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00000926---B000-.html) is, on its face, only about carry.

Before acting on any different interpretation, I think I would consult my attorney. A real legal opinion you pay for is the one most likely to be safe.

^ This is the correct cgn response IMO.

jtmkinsd
10-20-2010, 11:45 AM
^ This is the correct cgn response IMO.

I understand that opinion. It's not my intention to "rock the boat" here. My only caveat to that is without people willing to use the laws in place to justify legal commerce of firearms in this state, we wouldn't have any black rifles, single shot exemptions (except ones manufactured specifically as single shot), and the list could go on and on. I know what the "safe" answer is...it's always no.

eltee
10-20-2010, 1:20 PM
already answered

tenpercentfirearms
10-20-2010, 11:18 PM
Notwithstanding = In spite of, or regardless of any other state law. If it's so clear cut, just give a call to DOJ and see how clear it is. I've had face to face discussions with both ATF and DOJ agents when they've been to the shop. From those discussions I've come to the conclusions I have on this issue. As I've explained, I've been transferring off-roster concealeable firearms to retired LE since the law passed in 2004, and haven't had a problem in that time. Your interpretation gives CA the abilitity to control what a CA resident buys in another state...which is a little far reaching IMHO. Nowhere in CA law does it say it is illegal for anyone to purchase an off-list handgun outside California...I don't need California's permission to buy anything outside CA. The provision allows the interstate shipping of firearms for concealable carry in CA for retired LE...and as I said, Federal law, superseding state law, I use the Federal definition of a firearm. In 18 USC 926B there is clear language of what a "firearm" is not...so what is a firearm is equally clear.

Hopefully, none of this is going to matter in the near future. But as I said, although I'm comfortable enough with my interpretation to process these transactions, as with any part of gun law, it's up to everyone individually as to what they want to do. Legal "opinions" from attorneys are a waste of money for the most part. If something were to happen where I needed an attorney, I'd be paying for a defense in any case.

As an aside, one of the retired LE I've transfered off-list carry guns to is also a criminal defense attorney.
You are correct in that you do not need California's permission to buy handguns out of state. However, Federal Law is clear that you cannot take possession of those handguns outside of your state of residence. Additionally Federal Law is clear that any handgun you buy out of state must be transfered to a FFL in your state and properly purchased from that FFL.

CA law is clear that you may not DROS a handgun from a dealer unless it is on the safe list or unless you are exempt.

Again, the Federal Law you are citing has to do with concealed carry of handguns that are transported across state lines by retired law enforcement. I quote PC 1212512125. (a) Commencing January 1, 2001, any person in this state who manufactures or causes to be manufactured, imports into the state for sale, keeps for sale, offers or exposes for sale, gives, or lends any unsafe handgun shall be punished by imprisonment in a county jail not exceeding one year.
(b) This section shall not apply to any of the following:
(4) The sale or purchase of any pistol, revolver or other firearm capable of being concealed upon the person, if the pistol, revolver, or other firearm is sold to, or purchased by, the Department of Justice, any police department, any sheriff's official, any marshal's office, the Youth and Adult Correctional Agency, the California Highway Patrol, any district attorney's office, or the military or naval forces of this state or of the United States for use in the discharge of their official duties. Nor shall anything in this section prohibit the sale to, or purchase by, sworn members of these agencies of any pistol, revolver, or other firearm capable of being concealed upon the person.A possible reason your criminal defense attorney buddy doesn't care if you sell him off roster guns is there is no legal liability for him. He is not breaking the law by purchasing a non-roster handgun from you. You are breaking the law by offering for sale an off-roster handgun. This is solely your jail time here, not anyone else's. Worst case scenario for the criminal defense attorney is he has to give his handgun back. Worst case for you is hard time.

Unfortunately you are dead wrong on this. You seem to think that the statement "may carry a concealed firearm that has been shipped or transported in interstate or foreign commerce, subject to subsection (b)" means that as you state "the provision allows the interstate shipping of firearms for concealable carry in CA for retired LE". This is wrong.

Federal Law is clear! You cannot ship a handgun directly to a retired LE. The handgun must be shipped to an FFL. Period. Once that handgun has been shipped through interstate commerce to a dealer, then it can be carried concealed by retired LE. However it is still illegal for you to sell that retired LE that handgun. You are violating CA State Law by DROSing it to a non-exempt retired LE.

If that retired LE lawfully purchased a non-roster handgun through the private party transfer or intrafamiliar transfer process, then yes, that LE could carry that handgun concealed.

The best analogy of what you are doing is claiming that I as a SOT holder can still possess fully automatic and/or SBS/SBRs in California. You are claiming that because Federal Law states I can have them, that supersedes CA State law that says possessing them is a felony. However, your analogy is even further flawed than that because the Federal code you are citing makes no mention of purchasing non-roster being legal for retired LE, it only states it is legal for them to carry concealed handguns that were at one point transported or shipped over state lines.

And that there is where you are making your crucial mistake. Read up on this.

http://en.wikipedia.org/wiki/Commerce_Clause

The only reason "a concealed firearm that has been shipped or transported in interstate or foreign commerce" is in there is to provide justification for Congress in delving into State affairs. The only time the Federal Government has the authority to tell the states what to do with firearms is because they are involved in Interstate Commerce. That is the link the Feds made to justify forcing the states to recognize the concealed carry of firearms from residents of other states (in this case LE or retired LE residents).

In no way does this language state that a LE resident has a right to receive a shipped firearm from out of state. They still must go through a dealer. A dealer in the State of California is committing a crime by DROSing a unsafe handgun to a retired LE as retired LE is not exempt from PC12125.

Further your analogy of the safe answer is to say no and that if we had always done that we wouldn't have OLLs or single shot exempt pistols is additionally flawed. Neither the OLL or single shot pistol laws state it is unlawful to transfer those items to non-exempt retired LE. Anyone can own OLLs or single shot pistols. Clearly in both of these cases CA residents are clearly following CA law. In your case, you are directly violating CA law and you are claiming that it is legal for you to violate CA law because federal law says it is legal to violate CA law.

You are in violation of PC 12125(a). Period. That is it. Any prosecutor with half a brain is going to rip your argument to shreds.

I'll contact my lawyer and ask him for you. Odds are you might never get popped for this. However, if the DOJ does decide to look into it, I bet they will have a pretty solid case against you. Good luck!

jtmkinsd
10-21-2010, 12:06 AM
Unfortunately, I don't agree with any of your points or analogies. I don't believe we'll ever see any common ground on this...so any further debate is futile and would just not be productive. There's almost no case law on this issue (only three I can find, none having to do with this issue) so everything said is pure opinion. I consider the matter closed.

tenpercentfirearms
10-21-2010, 12:16 AM
Unfortunately, I don't agree with any of your points or analogies. I don't believe we'll ever see any common ground on this...so any further debate is futile and would just not be productive. There's almost no case law on this issue (only three I can find, none having to do with this issue) so everything said is pure opinion. I consider the matter closed.

Is that what you are going to tell the prosecution? I would think you would at least try to refute some of my claims and then make the comment all has been said. As it stands, it kind of seems like you have no defense. I think it would be quite productive to counter the points of attack I made pretending I was a prosecutor coming after your freedom. I would think it would only make your case stronger.

I guess all has been said really, so I respect that. You stated why you thought it was legit and I stated why I thought it wasn't. Again, good luck if they ever decide to make this an issue. Hopefully as you stated once before that they will invalidate the unsafe handgun law and then we won't have to worry about it anymore. That is definitely something we agree on.

jtmkinsd
10-21-2010, 12:38 AM
Is that what you are going to tell the prosecution? I would think you would at least try to refute some of my claims and then make the comment all has been said. As it stands, it kind of seems like you have no defense. I think it would be quite productive to counter the points of attack I made pretending I was a prosecutor coming after your freedom. I would think it would only make your case stronger.

I guess all has been said really, so I respect that. You stated why you thought it was legit and I stated why I thought it wasn't. Again, good luck if they ever decide to make this an issue. Hopefully as you stated once before that they will invalidate the unsafe handgun law and then we won't have to worry about it anymore. That is definitely something we agree on.

I really wouldn't mind a discussion about the two different arguments...but I think it would involve way too much typing...lol Honestly I'm relying on a lot of the information I've been able to suck out of agents from the two respective departments of authority in this. From what I've been able to gleen from those conversations is basically a shoulder shrug and a "I'm not going to say you can do it, but I don't see anything wrong with it" Just for informations sake both departments have reviewed packets with non-roster guns going to the same retired LE who is a customer of mine. This was more than two years ago and since that time I have probably processed only a handful of identical transactions.

5shot
10-21-2010, 2:11 AM
jtmkinsd is not the only FFL who is under this impression. A FFL I've used for years does most of his sales to active and retired officers.
When he asked DOJ about selling off list handguns to retired officers, he was told that the DROS paperwork does not distinguish between active and retired officers. Retired officers are not required to have a HSC to purchase handguns. So once you check the "California Peace Officer" box it is considered a sale to a peace officer. Anyway, that's what he told me DOJ has told him, and he's never had a problem when they come in to review his paperwork.

socalblue
10-21-2010, 2:58 AM
The easy question 1st - 832 PC course excepts one from the HSC & one needs only to show proof (current/retired ID or course certification).

The spirit & intent of the law would indicate that retired LEO's may no longer purchase off roster firearms (The intent is to make available firearms specific to LEO requirements that are not rostered).

That being said, IMO any attempt at prosecution would be at risk during appeal (If it went that far). Given that retired LEO's enjoy many specific legal exceptions & protections under state & federal law I doubt most judges would see a prosecution attempt as a real stretch being a stretch over a minor technicality.

Other than a retired LEO that is clearly buying & selling off roster guns for profit, I would think the selling store would be the one to feel the brunt of any pain via a license revocation / suspension should CA DOJ decide to crack down.

JasonDavis
10-21-2010, 5:26 AM
The "shipped in interstate commerce" provision is only there as a hook to keep it from being declared unconstitutional because, in general, Congress can only regulate commerce if it has shipped in interestate commerce. LEOSA does not, in my opinion, preempt the the UHA.

tenpercentfirearms
10-21-2010, 6:37 AM
jtmkinsd is not the only FFL who is under this impression. A FFL I've used for years does most of his sales to active and retired officers.
When he asked DOJ about selling off list handguns to retired officers, he was told that the DROS paperwork does not distinguish between active and retired officers. Retired officers are not required to have a HSC to purchase handguns. So once you check the "California Peace Officer" box it is considered a sale to a peace officer. Anyway, that's what he told me DOJ has told him, and he's never had a problem when they come in to review his paperwork.

There is a lot of wishful thinking going on here. Just because DROS software is limited or not limited has nothing to do with clear PC that states selling an unsafe handgun is a crime and that the exemption is for members of the agencies during the performance of their official duties. Retired officers no longer have official duties and are no longer sworn. Second, your DROS argument won't fly because in the HSC exemption, it clearly has two tabs for Federal and California retired LEOs. So the HSC clearly distinguishes between retired and active.

And there is no "California Peace Officer" box. There is a Peace Officer DROS screen, but your rationale is similar to "they let me run his DROS as Peace Officer and they didn't deny it, so it must be okay."

That is the crappy part about being an FFL. There are a ton of ways you can screw things up and you will never know you are doing them wrong until you get inspected. By then it will be too late, they are going to write you up.

spencerhut
10-21-2010, 7:28 AM
I'm still new to this so I'm being cautious. I had a pair of retired correctional officers come in and ask me to order off list .380 Bodyguards and had to turn them down. They were pissed and thought I was an idiot. They were pulling the commanding / demanding voice thing on me. Ha ha. I am immune to that trick. I learned later no one else in town would sell the .380 Bodyguard to them either.

I then talked to the person from a local department who gives out the authorization letters for officers to buy off list items about this and he broke it down to one simple thing (forget about retired or active) does the person in question have the power to serve warrants. Retired? Nope, they do not have the power to serve a warrant.

aquaelvis
10-21-2010, 9:25 AM
There's almost no case law on this issue
Yet :kest:

eltee
10-21-2010, 10:31 AM
There is a lot of wishful thinking going on here. Just because DROS software is limited or not limited has nothing to do with clear PC that states selling an unsafe handgun is a crime and that the exemption is for members of the agencies during the performance of their official duties. Retired officers no longer have official duties and are no longer sworn. Second, your DROS argument won't fly because in the HSC exemption, it clearly has two tabs for Federal and California retired LEOs. So the HSC clearly distinguishes between retired and active.

And there is no "California Peace Officer" box. There is a Peace Officer DROS screen, but your rationale is similar to "they let me run his DROS as Peace Officer and they didn't deny it, so it must be okay."

That is the crappy part about being an FFL. There are a ton of ways you can screw things up and you will never know you are doing them wrong until you get inspected. By then it will be too late, they are going to write you up.

In my department when you are processed for honorable retirement you are told that you no longer are a peace officer (Calif. Commission on POST is the final authority on who is and is not a PO), no longer have peace officer powers of arrest, qualified immunity or other exemptions. The retirement badge and ID allow you to CCW as a retiree, now a citizen. When you are hired, your department sends a form to P.O.S.T. in Sac requesting that they (POST) certify you as a peace officer. When you leave, they send a letter to POST declaring that you are no longer an active PO and POST will remove your name form the list of active peace officers. Essentially, you are decertified. During the exit interview, the departments often hammer into you that you are now a citizen. No exemption from traffic laws, criminal laws, can only arrest as a "private person", etc.

My opinion is that if you are retired you are no longer a peace officer by statute, and therefore not entitled to peace officer exemptions or privileges.

While I wish that retired POs would be treated the same as when they were active POs re. a DROS, it is my belief and opinion that retirees' only exemption on a DROS is the HSC requirement and perhaps the Safe Handling Demo. IMHO, the LEOSA has minimal or no implication re. a California DROS, the spirit of that law was what and when a qualified LEO (active or retired) can carry. Calif. DOJ has stated they will not allow the transfer / sale of hicap mags to a retired PO, so it is hard to conceive they would allow the sale of an off list firearm to that same person.

jtmkinsd
10-21-2010, 11:11 AM
Just as a hypothetical, let's pretend CA had a law specifically stating once LE retired they were no longer allowed to concealed carry...obviously Title 18 would supersede that. So the question comes down to which provisions of CA law Title 18 currently supersedes. I'm of the opinion it allows for the transfer of concealable firearms to retired LE...and as I stated, Federal law, Federal definition of a "firearm". If the only gun an LE ever had was his service gun, and had to turn it in at the end of his career, how would he get a gun to carry? With the interpretations I've seen here, he'd have to drive to Nevada or Arizona...buy a gun...and bring it back into CA...which is a different violation of Federal law.

aquaelvis
10-21-2010, 11:35 AM
If the only gun an LE ever had was his service gun, and had to turn it in at the end of his career, how would he get a gun to carry? With the interpretations I've seen here, he'd have to drive to Nevada or Arizona...buy a gun...and bring it back into CA...which is a different violation of Federal law.

He'd buy an on-list gun, like all other civilians in CA. Glocks are available to all people (not prohibited of course) in CA so he'd be able to get one. He just can't buy an off-list gun. There are lots of guns a retired LEO can buy. (like I said before, if he wants an LCP I am pretty sure he'd be able to get one PTP from one of the active guys at his old dept)
I don't follow your point.

Librarian
10-21-2010, 11:37 AM
Just as a hypothetical, let's pretend CA had a law specifically stating once LE retired they were no longer allowed to concealed carry...obviously Title 18 would supersede that. So the question comes down to which provisions of CA law Title 18 currently supersedes. I'm of the opinion it allows for the transfer of concealable firearms to retired LE...and as I stated, Federal law, Federal definition of a "firearm". If the only gun an LE ever had was his service gun, and had to turn it in at the end of his career, how would he get a gun to carry? With the interpretations I've seen here, he'd have to drive to Nevada or Arizona...buy a gun...and bring it back into CA...which is a different violation of Federal law.

Just for clarification, exactly which provision of Title 18 of US Code is it you mean? Title 18 (http://www.law.cornell.edu/uscode/html/uscode18/usc_sup_01_18.html), while not on the scale of Title 26 (Internal Revenue Code), is a large document.

I earlier posted a link to the section I think you are talking about, but you didn't say whether or not that was the one.

jtmkinsd
10-21-2010, 1:00 PM
Just for clarification, exactly which provision of Title 18 of US Code is it you mean? Title 18 (http://www.law.cornell.edu/uscode/html/uscode18/usc_sup_01_18.html), while not on the scale of Title 26 (Internal Revenue Code), is a large document.

I earlier posted a link to the section I think you are talking about, but you didn't say whether or not that was the one.

You were correct...i think it's 926b

jtmkinsd
10-21-2010, 1:06 PM
He'd buy an on-list gun, like all other civilians in CA. Glocks are available to all people (not prohibited of course) in CA so he'd be able to get one. He just can't buy an off-list gun. There are lots of guns a retired LEO can buy. (like I said before, if he wants an LCP I am pretty sure he'd be able to get one PTP from one of the active guys at his old dept)
I don't follow your point.

This I understand...my example was inartful. But the language of 926b Title 18 is what it is. And as with any law it's subject to interpretation which hasn't been litigated in this area to my knowledge. IF they wanted my license, I would assume they would've come after it when inspectors from both departments reviewed the transaction I spoke of a couple years ago. So all the speculation and hand-wringing is mute. IMHO

Librarian
10-21-2010, 1:22 PM
You were correct...i think it's 926b

Actually, I was wrong :(, it's 18 USC 926C (http://www.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00000926---C000-.html) for retired, 926B is for current LEO. (Didn't read far enough the first time.)

So, a question: 18 USC 926C (c)(7) adds the qualification "(7) is not prohibited by Federal law from receiving a firearm."

That is, LEOSA doesn't apply if the former LEO has become a 'prohibited person', e.g. has been convicted of a felony.

CA has a list of 'crash landings' that prohibit firearms possession, posted on the AG web site at http://ag.ca.gov/firearms/forms/ "Firearms Prohibiting Categories and List of Prohibiting Misdemeanors".

Let's pick PC 71 "Threatening public officers, employees, and school officials ( 71.)" Suppose some poor guy (retired LEO) gets excited at a County Supervisor's meeting and speaks intemperately, gets arrested, prosecuted and convicted for threatening a Supervisor.

Does the Federal LEOSA provision supersede California's ban on ownership/possession?

5shot
10-21-2010, 1:43 PM
There is a lot of wishful thinking going on here. Just because DROS software is limited or not limited has nothing to do with clear PC that states selling an unsafe handgun is a crime and that the exemption is for members of the agencies during the performance of their official duties. Retired officers no longer have official duties and are no longer sworn. Second, your DROS argument won't fly because in the HSC exemption, it clearly has two tabs for Federal and California retired LEOs. So the HSC clearly distinguishes between retired and active.

And there is no "California Peace Officer" box. There is a Peace Officer DROS screen, but your rationale is similar to "they let me run his DROS as Peace Officer and they didn't deny it, so it must be okay."

That is the crappy part about being an FFL. There are a ton of ways you can screw things up and you will never know you are doing them wrong until you get inspected. By then it will be too late, they are going to write you up.


Read my post. I'm not claiming it's legal. I'm not claiming to be a FFL. I'm not arguing with anyone about it.
I'm just telling you that some FFL's, or at least one here and another one I know personally do it, and have done it for years. And have gone thru their DOJ and ATF audits without any problems. The "California Peace Officer Box" is the explanation I was given by the FFL. But I do see that all my purchases from the last few years are listed as X-33 instead of X-31 exemptions.
One would think that when DOJ sees the X-33 exemption and the off list handgun, they would kick back the paperwork and not allow the handgun to be delivered after the 10 day wait.

jtmkinsd
10-21-2010, 2:29 PM
Actually, I was wrong :(, it's 18 USC 926C (http://www.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00000926---C000-.html) for retired, 926B is for current LEO. (Didn't read far enough the first time.)

So, a question: 18 USC 926C (c)(7) adds the qualification "(7) is not prohibited by Federal law from receiving a firearm."

That is, LEOSA doesn't apply if the former LEO has become a 'prohibited person', e.g. has been convicted of a felony.

CA has a list of 'crash landings' that prohibit firearms possession, posted on the AG web site at http://ag.ca.gov/firearms/forms/ "Firearms Prohibiting Categories and List of Prohibiting Misdemeanors".

Let's pick PC 71 "Threatening public officers, employees, and school officials ( 71.)" Suppose some poor guy (retired LEO) gets excited at a County Supervisor's meeting and speaks intemperately, gets arrested, prosecuted and convicted for threatening a Supervisor.

Does the Federal LEOSA provision supersede California's ban on ownership/possession?

If he does something to become a "prohibited person" he obviously couldn't own a firearm...DROS would be denied...he probably wouldn't have his ID anymore (there are requirements for maintaining the qualified status)...and it specifically states in both Fed and State law about "prohibited persons". Not to mention there is no "Notwithstanding any State law" provision in the Gun Control Act, it specifically says the contrary in the first paragraph.

yzernie
10-21-2010, 7:42 PM
jtmkinsd is not the only FFL who is under this impression. A FFL I've used for years does most of his sales to active and retired officers.
When he asked DOJ about selling off list handguns to retired officers, he was told that the DROS paperwork does not distinguish between active and retired officers. Retired officers are not required to have a HSC to purchase handguns. So once you check the "California Peace Officer" box it is considered a sale to a peace officer. Anyway, that's what he told me DOJ has told him, and he's never had a problem when they come in to review his paperwork.
The DROS software allows retired peace officers for an exemption for waiving the HSC only. The obvious problem I see with your FFL friend allowing retired POs to purchase off-roster handguns is the overwhelming majority of retired ID cards indicate "retired" right on the front of them. When a copy of it would be made for the paperwork it indicates that boldly on the ID card. That would come to light during a DoJ audit of paperwork.

Librarian
10-21-2010, 10:52 PM
If he does something to become a "prohibited person" he obviously couldn't own a firearm...DROS would be denied...he probably wouldn't have his ID anymore (there are requirements for maintaining the qualified status)...and it specifically states in both Fed and State law about "prohibited persons". Not to mention there is no "Notwithstanding any State law" provision in the Gun Control Act, it specifically says the contrary in the first paragraph.

True, but that doesn't quite answer my question. PC 71 is strictly a California law. If convicted under that CA law, does Federal law 18 USC 926C - remembering that 18 USC 926C (c)(7) disqualification refers to Federal law only - still allow that unfortunate retired LEO to carry concealed?

jtmkinsd
10-22-2010, 12:03 AM
True, but that doesn't quite answer my question. PC 71 is strictly a California law. If convicted under that CA law, does Federal law 18 USC 926C - remembering that 18 USC 926C (c)(7) disqualification refers to Federal law only - still allow that unfortunate retired LEO to carry concealed?

Yes he can still carry..."Notwithstanding any other provision of the law of any State". On a Federal level he is not a prohibited person. But...he would have to carry only what he's got...the DROS system would boot him...It would be up to him to file suit against DOJ in Federal court to be able to purchase a gun in CA under Title 18...or get a second residence in another State.

Keeping in mind he must be able to satisfy all the requirements and proofs required by the LEOSA...and the State could make that very difficult.

tenpercentfirearms
10-23-2010, 7:41 AM
One would think that when DOJ sees the X-33 exemption and the off list handgun, they would kick back the paperwork and not allow the handgun to be delivered after the 10 day wait.

Not unless they set up a protocol to check for that through the background check process, which I doubt they have. The only person that is probably going to catch it is an auditor after they come into the shop. Even then they might not catch it or they might not care.

If FFLs have been doing it and getting away with it, then the DOJ might not care or it might not be worth fighting over. That is a very real possibility.

As far as my reading of the law, it is a crime for an FFL to do this. We are all adults and have to make our own decisions. I have made up my mind not to sell retired LEOs non-rostered handguns and my counsel has suggested the same.

Here's to one day soon never having to worry about this stupid roster for anyone ever again!

bshnt2015
10-23-2010, 10:52 AM
Thanks for the information, one of recently retired was just asking the same question.

jtmkinsd
10-23-2010, 12:07 PM
Here's to one day soon never having to worry about this stupid roster for anyone ever again!

AMEN!

5shot
10-23-2010, 12:25 PM
AMEN!


AGREED.