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View Full Version : What happens if dealer DROS's a gun not on the Roster?


Gryff
01-24-2011, 4:13 PM
I have a friend who has decided she wants a CZ SP-01 Phantom. That gun isn't on the Roster under that exact name (there are four named variants of the SP-01), but the "CZ 75 SP-01" is.

I've found a dealer who assures me that can sell the Phantom, but all other dealers I've talked to tell me it isn't on the Roster. I'm assuming the one dealer is just processing the Phantoms as the CZ 75 SP-01.

If this dealer sells her the gun, and the dealer ever gets in trouble for doing this little assumed sleight of hand, what legally can happen to my friend?

bwiese
01-24-2011, 4:32 PM
Depends on the collusion.

If knowing, etc. it's generally a misdemeanor - certainly for the FFL, and he'll lose his state license (and thus FFL). I'm unsure of the exact charges, but besides selling an 'unsafe handgun', the FFL is also performing what in essence is a type of 'document fraud'.

If plain ol' Joe Blow unknowlingly goes to FFL and asks to buy gun X that is not Rostered, and FFL overrides the system to do so, without any feedback to Joe Blow, then the FFL is wholly liable. (He's an agent for the state.)

Now it's gonna be entirely separate situation if Joe Blow wants a non-Rostered gun, knows the general issues and searches for an FFL that will illegally collaborate in this scheme.

Now, if it's REALLY REALLY CLOSE, there are often Harrott-style issues with individual Roster entries. Those could be a defense based on issues of clarity (things like blue vs parkerized, nickel vs stainless, confusing blued with blued stainless, etc. or SKU numbers mangled due to grips/sights only, etc.)

Overall, I'm sure as sh*t puzzled why anyone wants to do this crap when (1) the single shot exemption is a legal, usable workaround, and (2) the Roster will fall eventually. Buncha dingbats.

Gryff
01-24-2011, 4:36 PM
Overall, I'm sure as sh*t puzzled why anyone wants to do this crap when (1) the single shot exemption is a legal, usable workaround

Doesn't this require the additional expense of custom manufactured barrels and mag/sleds that will significantly impact the price to the customer?

one*eyed*jack
01-24-2011, 4:44 PM
Maybe the dealer is selling the CZ 75 SP-01, and not the CZ 75 SP-01 Phantom. Is he aware its a different firearm and not just a different term for the same firearm?

Gryff
01-24-2011, 4:59 PM
Maybe the dealer is selling the CZ 75 SP-01, and not the CZ 75 SP-01 Phantom. Is he aware its a different firearm and not just a different term for the same firearm?

No, it's definitely the Phantom.

Right now, I'm the only person who has voiced this question anywhere, but neither the dealer nor the actual buyer know my concerns. I've just asked him if he is sure that he can sell the Phantom to non-LEOs, and he says "yes."

Omil
01-24-2011, 5:09 PM
No, it's definitely the Phantom.

Right now, I'm the only person who has voiced this question anywhere, but neither the dealer nor the actual buyer know my concerns. I've just asked him if he is sure that he can sell the Phantom to non-LEOs, and he says "yes."

Very interesting, will see what happens.. GL!

Librarian
01-24-2011, 5:20 PM
(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.
Misdemeanor (with licensing consequences, no doubt), as Bill said.

I suppose the sale could not be initiated or completed without at least one of importing for sale, keeping for sale, offering for sale or exposing for sale - but it looks like the wording leaves out the actual act of selling, in the sense of 'thanks for your money, come back in 10 days and I'll deliver the handgun'. I don't know that anything could be made from that...

Gryff
01-24-2011, 5:24 PM
Is it a legal loophole that the dealer could argue that he thought that "CZ 75 SP-01 / Steel, Poly" also covered the "Phantom," "Tactical," and "Shadow" as well as the basic SP-01?

The interesting thing is that the actual SP-01 isn't a polymer gun, yet the Roster mentions "Steel, Poly" in its listing.

In all honesty, I really don't think the dealer realizes that he might be doing something verboten.

Saym14
01-31-2011, 12:51 PM
Overall, I'm sure as sh*t puzzled why anyone wants to do this crap when (1) the single shot exemption is a legal, usable workaround, and (2) the Roster will fall eventually. Buncha dingbats.

isnt the single shot expetion limited to longer barrels?

wildhawker
01-31-2011, 12:56 PM
Saym, that's why you see 8" LCPs.

dantodd
01-31-2011, 1:57 PM
Someone should start using the same part # for all their handguns.

Matt C
01-31-2011, 2:02 PM
Is it a legal loophole that the dealer could argue that he thought that "CZ 75 SP-01 / Steel, Poly" also covered the "Phantom," "Tactical," and "Shadow" as well as the basic SP-01?



Depends on what is different:

12131.5. (a) A firearm shall be deemed to satisfy the
requirements of subdivision (a) of Section 12131 if another
firearm made by the same manufacturer is already listed and
the unlisted firearm differs from the listed firearm only in
one or more of the following features:

(1) Finish, including, but not limited to, bluing, chrome-
plating, oiling, or engraving.

(2) The material from which the grips are made.

(3) The shape or texture of the grips, so long as the
difference in grip shape or texture does not in any way
alter the dimensions, material, linkage, or functioning of
the magazine well, the barrel, the chamber, or any of the
components of the firing mechanism of the firearm.

(4) Any other purely cosmetic feature that does not in any
way alter the dimensions, material, linkage, or functioning
of the magazine well, the barrel, the chamber, or any of the
components of the firing mechanism of the firearm.

bwiese
01-31-2011, 2:57 PM
Doesn't this require the additional expense of custom manufactured barrels and mag/sleds that will significantly impact the price to the customer?

Well yes, but people wanting off-Roster pistols are willing to do that.

Also, those barrels can be re-sold back to the 07FFL dealer for future conversions.

halifax
01-31-2011, 3:01 PM
Depends on what is different:

12131.5 only applies to the manufacturer if they want to add a variant to the roster ($$$). It is not a loophole for the dealer to use.

Matt C
01-31-2011, 3:11 PM
12131.5 only applies to the manufacturer if they want to add another variant to the roster ($$$). It is not a loophole for the dealer to use.

That does not even make any sense.

Section 12131.5 states A firearm shall be deemed to satisfy the
requirements of subdivision (a) of Section 12131 if another
firearm made by the same manufacturer is already listed...

Section 12131(a) states: On and after January 1, 2001, the Department of Justice shall compile, publish, and thereafter maintain a roster listing all of the pistols, revolvers, and other firearms capable of being concealed upon the person that have been tested by a certified
testing laboratory, have been determined not to be unsafe handguns,
and may be sold in this state pursuant to this title. The roster
shall list, for each firearm, the manufacturer, model number, and
model name.

Section 12131(a) IS the roster, 12131.5 exempts substantially similar (unlisted) variants of listed from needing to be on the roster in order to be sold, if they were actually added to the roster (which 12131.5 has nothing to do with) then they would not require 12131.5 or any other exemption, they would be rostered (listed) guns.

halifax
01-31-2011, 3:21 PM
That does not even make any sense.

Section 12131.5 states

Section 12131(a) states:

Section 12131(a) IS the roster, 12131.5 exempts substantially similar (unlisted) variants of listed from needing to be on the roster in order to be sold, if they were actually added to the roster (which 12131.5 has nothing to do with) then they would not require 12131.5 or any other exemption, they would be rostered (listed) guns.

You did not read 12131.5 to its conclusion:


(b) Any manufacturer seeking to have a firearm
listed under this section shall provide to the
Department of Justice all of the following:
(1) The model designation of the listed firearm.
(2) The model designation of each firearm
that the manufacturer seeks to have listed under
this section.
(3) A statement, under oath, that each unlisted
firearm for which listing is sought differs
from the listed firearm only in one or more of the
ways identified in subdivision (a) and is in all
other respects identical to the listed firearm.

ke6guj
01-31-2011, 3:22 PM
That does not even make any sense.

Section 12131.5 states

Section 12131(a) states:

Section 12131(a) IS the roster, 12131.5 exempts substantially similar (unlisted) variants of listed from needing to be on the roster in order to be sold, if they were actually added to the roster (which 12131.5 has nothing to do with) then they would not require 12131.5 or any other exemption, they would be rostered (listed) guns.

thats the way I understood it to be, but the second part of 12131.5 says that the manufacturer must notify CADOJ they have a similar handgun that they want to have listed under this section.


12131.5(b) Any manufacturer seeking to have a firearm listed under this section shall provide to the Department of Justice all of the following:
(1) The model designation of the listed firearm.
(2) The model designation of each firearm that the manufacturer seeks to have listed under this section.
(3) A statement, under oath, that each unlisted firearm for which listing is sought differs from the listed firearm only in one or more of the ways identified in subdivision (a) and is in all other respects identical to the listed firearm.
(c) The department may, in its discretion and at any time, require a manufacturer to provide to the department any model for which listing is sought under this section, to determine whether the model complies with the requirements of this section.

Matt C
01-31-2011, 3:34 PM
You did not read 12131.5 to its conclusion:

No I see that, but 12131.5 (a) specifically states that an unlisted firearm can meet the of requirements 12131(a). 12131.5 (b) states that a firearm my be added to the 12131(a) list by a manufacturer and gives procedures for doing so. Maybe not the best legal argument ever, I'll admit, but the law is not well written and if something is illegal based on it being the wrong color finish I'd really like to hear how that could possibly be rationally related to any legitimate government purpose.

dantodd
01-31-2011, 3:36 PM
d if something is illegal based on it being the wrong color finish I'd really like to hear how that could possibly be rationally related to any legitimate government purpose.

Of course there is none and that is one of the many reasons for Pena.

Saym14
02-01-2011, 12:12 PM
Saym, that's why you see 8" LCPs.

anyone sell 8" P30's ? :confused:

Matt C
02-01-2011, 12:19 PM
anyone sell 8" P30's ? :confused:

PRK arms?

JeepFreak
02-01-2011, 1:18 PM
Doesn't this require the additional expense of custom manufactured barrels and mag/sleds that will significantly impact the price to the customer?

I just bought a gun from Valkyrie Arms w/ the single shot exemption and it was $25 UNDER MSRP!!!
Billy

Tyrenlds
02-01-2011, 2:32 PM
Go ahead and let them sell it to you. You're not liable for their mistake. My local gun shop sold me a Glock 17 gen4 and DROSed it as a regular G17. Went through fine. I decided to sell it to get something else and before offering it to any private party I notified the FFL of what they had done and gave them the opportunity to purchase the gun back from me to cover their butts. They declined and I sold the thing PPT, DROSed as a gen4 just fine thru PPT. Go ahead and let them do it is the point.

Saym14
02-01-2011, 6:34 PM
PRK arms?

they got mail:cool:

7.62x54R
02-01-2011, 11:07 PM
I just bought a gun from Valkyrie Arms w/ the single shot exemption and it was $25 UNDER MSRP!!!
Billy

I am sure any dealer will be willing to do that for you. As MSRP is usually higher than actual retail. Dealer cost varies depending on gun i find buds gun shop prices generally to be very close to dealer cost usually only 30-40$ above of course it depends on the firearm.

Buds price for LCP is 290$ - 30-40$= 250-260$ dealer cost.

tenpercentfirearms
02-02-2011, 6:49 AM
Go ahead and let them sell it to you. You're not liable for their mistake. My local gun shop sold me a Glock 17 gen4 and DROSed it as a regular G17. Went through fine. I decided to sell it to get something else and before offering it to any private party I notified the FFL of what they had done and gave them the opportunity to purchase the gun back from me to cover their butts. They declined and I sold the thing PPT, DROSed as a gen4 just fine thru PPT. Go ahead and let them do it is the point.

You need to be very careful about advertising such things. Clearly the Gen4 is not approved for sale. The DOJ has your complete registration information and if they want to make an issue out of it, they could. Sure you might not have to give up the gun and you might win eventually, but at what cost? The CGF already has a roster case pending, so I am not sure how badly we need to spend more funds on further cases should you suddenly take a hit for taking possession of a handgun you know is not listed.

The way DROS works, is dealers can DROS the wrong handguns with little effort. For example the OPs case or the Glock Gen4s. Unless the DOJ comes in and is comparing DROSed handguns to real handguns in the safe, they aren't going to figure it out.

However, it is possible that they could figure out from the manufacturer which guns have which serial numbers. If the serial number range is easily detectable, it might not be that hard to find out if it is a Gen3 or Gen4 Glock or if it is a CZ SP-01 or a Phantom.

Is this likely, probably highly unlikely. However, could the DOJ figure it out and then just look for dealers who seem to be making large numbers of "incorrect" DROSes and inspect and prosecute? You bet they could.

Now, I believe sometimes the CA approved list is highly confusing and you might not honestly know the difference between different models. Until they start listing guns by SKU, I think it is nearly impossible in some cases to expect a dealer to know for sure which handgun they are DROSing. To further complicate matters further, even if listed by SKU, if the gun did not come in its original box, it complicates the matter all the same.

This list really is a mess and needs to go away. However, until it does, tread lightly ladies and gentleman.

No I see that, but 12131.5 (a) specifically states that an unlisted firearm can meet the of requirements 12131(a). 12131.5 (b) states that a firearm my be added to the 12131(a) list by a manufacturer and gives procedures for doing so. Maybe not the best legal argument ever, I'll admit, but the law is not well written and if something is illegal based on it being the wrong color finish I'd really like to hear how that could possibly be rationally related to any legitimate government purpose.

I don't see any current legal argument here. The firearm still must be listed by the CA DOJ as a approved handgun for sale. If it isn't listed, then I can't sell it in a standard handgun DROS. Period.

Matt C
02-02-2011, 9:57 AM
The firearm still must be listed by the CA DOJ as a approved handgun for sale. If it isn't listed, then I can't sell it in a standard handgun DROS. Period.

Where does the laws say the gun must be listed for sale? 12131 (a). What does 12131.5 (a) say? A firearm shall be deemed to satisfy the requirements of subdivision (a) of Section 12131[THE LIST!] if another firearm made by the same manufacturer is already listed and the unlisted firearm [that's unlisted, as in not on the list]differs from the listed firearm only in one or more of the following features.

If you don't see the legal argument, look harder. The law states that an unlisted firearm which is made my the manufacturer of a listed firearm and differs only from that listed firearm in specific ways is exempt from needing to be on the list.

jtmkinsd
02-02-2011, 10:02 AM
Where does the laws say the gun must be listed for sale? 12131 (a). What does 12131.5 (a) say? A firearm shall be deemed to satisfy the requirements of subdivision (a) of Section 12131[THE LIST!] if another firearm made by the same manufacturer is already listed and the unlisted firearm [that's unlisted, as in not on the list]differs from the listed firearm only in one or more of the following features.

If you don't see the legal argument, look harder.

:beatdeadhorse5:

Yes, if the gun differs only in certain cosmetic things, the manufacturer can have the gun added to the list without having to submit it for testing.

But it still must be on the list to be DROSed as a dealer sale to a non-exempt individual.

Matt C
02-02-2011, 10:11 AM
Yes, if the gun differs only in certain cosmetic things, the manufacturer can have the gun added to the list without having to submit it for testing.


Sure they can, 12131 (b) makes that very clear.


But it still must be on the list to be DROSed as a dealer sale to a non-exempt individual.
Where does it say that exactly? I see where 12131.5 (a) says that an unlisted gun meeting those requirements "shall be deemed to satisfy the requirements of [the list]" I don't see where it says that the exception only applies to guns which the manufacturer has had listed though the provisions of 12131.5 (b).

Again, would I bet my arse on this interpretation? No. But the question was "Is it a legal loophole that the dealer could argue". It's arguable, and better than no defense at all, if the dealer had been busted for violation of 12131.

halifax
02-02-2011, 10:24 AM
Sure they can, 12131 (b) makes that very clear.


Where does it say that exactly? I see where 12131.5 (a) says that an unlisted gun meeting those requirements "shall be deemed to satisfy the requirements of [the list]" I don't see where it says that the exception only applies to guns which the manufacturer has had listed though the provisions of 12131.5 (b).

Again, would I bet my arse on this interpretation? No. But the question was "Is it a legal loophole that the dealer could argue". It's arguable, and better than no defense at all, if the dealer had been busted for violation of 12131.

How would the dealer know if the manufacturer satisfied 12131.5 if the handgun is not on the drop-down list?

jtmkinsd
02-02-2011, 10:26 AM
Sure they can, 12131 (b) makes that very clear.


Where does it say that exactly? I see where 12131.5 (a) says that an unlisted gun meeting those requirements "shall be deemed to satisfy the requirements of [the list]" I don't see where it says that the exception only applies to guns which the manufacturer has had listed though the provisions of 12131.5 (b).

Again, would I bet my arse on this interpretation? No. But the question was "Is it a legal loophole that the dealer could argue". It's arguable, and better than no defense at all, if the dealer had been busted for violation of 12131.

Legally I could argue I should be able to have a fully functional M1 Abrams tank parked in my driveway...Is it gonna happen?

Matt C
02-02-2011, 10:27 AM
How would the dealer know if the manufacturer satisfied 12131.5 if the handgun is not on the drop-down list?

If the manufacturer used the process in 12131.5 (b), it would be on the drop down list, because it would be listed.

Legally I could argue I should be able to have a fully functional M1 Abrams tank parked in my driveway...Is it gonna happen?
That's a fallacious argument, do you have a legal basis for your argument that is not contrary to prior case law?

jtmkinsd
02-02-2011, 10:37 AM
If the manufacturer used the process in 12131.5 (b), it would be on the drop down list, because it would be listed.


There is your answer...in order to have the gun listed, the manufacturer must take the steps to have it added to the list to sell non-exempt individuals. If the manufacturer does not take those steps, it can't be sold to non-exempt individuals. If a dealer was audited and/or busted for a violation, there are much better arguments out there than "I didn't think the second half of PC 12131.5 was really that important, so I ignored it".


The "important" part of PC 12131.5"

(b) Any manufacturer seeking to have a firearm listed under this
section shall provide to the Department of Justice all of the
following:
(1) The model designation of the listed firearm.
(2) The model designation of each firearm that the manufacturer
seeks to have listed under this section.
(3) A statement, under oath, that each unlisted firearm for which
listing is sought differs from the listed firearm only in one or more
of the ways identified in subdivision (a) and is in all other
respects identical to the listed firearm.
(c) The department may, in its discretion and at any time, require
a manufacturer to provide to the department any model for which
listing is sought under this section, to determine whether the model
complies with the requirements of this section.

jtmkinsd
02-02-2011, 10:51 AM
No, it's definitely the Phantom.

Right now, I'm the only person who has voiced this question anywhere, but neither the dealer nor the actual buyer know my concerns. I've just asked him if he is sure that he can sell the Phantom to non-LEOs, and he says "yes."

This question has been asked and debated numerous times...you are not the first, and most assuredly will not be the last.

oso grande
02-02-2011, 11:49 AM
Overall, I'm sure as sh*t puzzled why anyone wants to do this crap when (1) the single shot exemption is a legal, usable workaround, and (2) the Roster will fall eventually.

:twoweeks:

Matt C
02-02-2011, 1:31 PM
There is your answer...in order to have the gun listed, the manufacturer must take the steps to have it added to the list to sell non-exempt individuals. If the manufacturer does not take those steps, it can't be sold to non-exempt individuals. If a dealer was audited and/or busted for a violation, there are much better arguments out there than "I didn't think the second half of PC 12131.5 was really that important, so I ignored it".


The "important" part of PC 12131.5"

(b) Any manufacturer seeking to have a firearm listed under this
section shall provide to the Department of Justice all of the
following:
(1) The model designation of the listed firearm.
(2) The model designation of each firearm that the manufacturer
seeks to have listed under this section.
(3) A statement, under oath, that each unlisted firearm for which
listing is sought differs from the listed firearm only in one or more
of the ways identified in subdivision (a) and is in all other
respects identical to the listed firearm.
(c) The department may, in its discretion and at any time, require
a manufacturer to provide to the department any model for which
listing is sought under this section, to determine whether the model
complies with the requirements of this section.

We are going in circles here. I understand what section (b) does. Regardless, section (a) specifically says an UNLISTED gun can meet the requirements of 12131. I'm not ignoring section (b), but nothing in section (b) changes what is sted in section (a). I understand there are other arguments that are stronger, but that is not what the poster I responded too asked about.

stretch64
02-02-2011, 9:11 PM
Gryff,
I looked into getting the SP-01 Phantom a year or two ago, even went so far as to call CADOJ to verify Steel/Poly description on the roster included the Phantom. Reply I got was that it did include the Phantom. Problem I ran into was the barrel length on the roster didn't exactly match the manufacturer's specs for the Phantom (or for any of the SP-01s for that matter). While waiting for the lady from DOJ (can't remember her name anymore) to get back to me regarding the barrel length discrepancy, I lost interest and moved on to other acquisitions. Never did hear back from them.

jtmkinsd
02-02-2011, 9:49 PM
We are going in circles here. I understand what section (b) does. Regardless, section (a) specifically says an UNLISTED gun can meet the requirements of 12131. I'm not ignoring section (b), but nothing in section (b) changes what is sted in section (a). I understand there are other arguments that are stronger, but that is not what the poster I responded too asked about.

I understand...the key is yes, the gun can meet the standards to be on the list, but the manufacturer must go through the steps to put it on the list in order for average joe Californian to buy it. Just meeting the standards is not enough in CA, the gun must be on the list to sell to non exempt individuals. There are LOTS of firearms that meet the standards set forth in the PC to be listed, but they are not listed, so they cannot be sold to non exempt individuals.

tenpercentfirearms
02-02-2011, 10:15 PM
We are going in circles here. I understand what section (b) does. Regardless, section (a) specifically says an UNLISTED gun can meet the requirements of 12131. I'm not ignoring section (b), but nothing in section (b) changes what is sted in section (a). I understand there are other arguments that are stronger, but that is not what the poster I responded too asked about.

So what is your point? Are you saying that a dealer can sell guns not on the approved list of handguns for sale if the handguns comply with 12131.5(a)?

The penal code most certainly says quite the opposite.

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.

12131. (a) On and after January 1, 2001, the Department of Justice shall compile, publish, and thereafter maintain a roster listing all of the pistols, revolvers, and other firearms capable of being concealed upon the person that have been tested by a certified testing laboratory, have been determined not to be unsafe handguns, and may be sold in this state pursuant to this title. The roster shall list, for each firearm, the manufacturer, model number, and model name.

12131.5. (a) A firearm shall be deemed to satisfy the requirements of subdivision (a) of Section 12131 if another firearm made by the same manufacturer is already listed and the unlisted firearm differs from the listed firearm only in one or more of the following features:
(1) Finish, including, but not limited to, bluing, chrome-plating, oiling, or engraving.
(2) The material from which the grips are made.
(3) The shape or texture of the grips, so long as the difference in grip shape or texture does not in any way alter the dimensions, material, linkage, or functioning of the magazine well, the barrel, the chamber, or any of the components of the firing mechanism of the firearm.
(4) Any other purely cosmetic feature that does not in any way alter the dimensions, material, linkage, or functioning of the magazine well, the barrel, the chamber, or any of the components of the firing mechanism of the firearm.
(b) Any manufacturer seeking to have a firearm listed under this section shall provide to the Department of Justice all of the following:
(1) The model designation of the listed firearm.
(2) The model designation of each firearm that the manufacturer seeks to have listed under this section.
(3) A statement, under oath, that each unlisted firearm for which listing is sought differs from the listed firearm only in one or more of the ways identified in subdivision (a) and is in all other respects identical to the listed firearm.
(c) The department may, in its discretion and at any time, require a manufacturer to provide to the department any model for which listing is sought under this section, to determine whether the model complies with the requirements of this section.

I cannot sell handguns unless they are on the approved list. Guns can't get on the approved list without going through testing. Guns that have been tested and meet the requirements of 12131.5(a)(1)-(4) do not need to be tested, but must comply with 12131.5(b) in order to be listed in 12131(a) and therefore can be sold under 12125(a).

So again, are you saying that a dealer could go ahead and sell a handgun not approved for sale in California to a non-exempt person because of 12131.5(a)? Again, if so, the law clearly states this is not the case...

Mimi_T
02-02-2011, 10:56 PM
Very interesting thread. I know of at least one shop here (OC) that sells the Phantom, and I've always wondered what was up with this since it's not on the roster.

Matt C
02-03-2011, 12:06 AM
First off I think it would it is very bad idea to sell a non-listed gun based on the similarity to a listed gun at this time, it would probably cost the FFL his license at best, and could result in further legal consequences. So DON'T DO THIS. I hope no one was thinking that is what I was implying, I'm simply pointing out a potential argument, that hopefully will be moot soon anyway (and probably always was).

That said, the question is does 12131.5 (a) state than an unlisted firearm can meet the requirements of 12131 (a), yes or no?

12131.5 (a) uses the word "unlisted" in describing a firearm which does according to the law "satisfy the requirements of subdivision (a) of Section 12131"

Note that 12131 (a) is not a list of requirements to not be an unsafe handgun (that is another section), but is primarily the roster of not unsafe handguns itself

So to recap:

12125 makes illegal to sell guns that do not fall under section 12131 (a)

12125 does not make it illegal to see an unrostered gun, only a unsafe gun

12131 (a) describes what is a not unsafe handgun and provides for a roster of not unsafe guns

12131.5 (a) provides that certain guns that are UNLISTED (as in not on the roster of not-unsafe handguns described in 12131 (a)) may , notwithstanding this fact, meet the requirements of 12131 (a) and are therefore not unsafe handguns

So it appears certain guns can be not unsafe and yet not be on the roster

12131.5 (b) provides that certain not unsafe guns can be added to the roster by a manufacturer

Librarian
02-03-2011, 12:15 AM
And PC12125 says 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.
and those handguns which are not unsafe are identified in 12131 (a) On and after January 1, 2001, the
Department of Justice shall compile, publish, and thereafter
maintain a roster listing all of the pistols, revolvers, and
other firearms capable of being concealed upon the person that
have been tested by a certified testing laboratory, have been
determined not to be unsafe handguns, and may be sold in
this state pursuant to this title. The roster shall list, for
each firearm, the manufacturer, model number, and model name.
If the manufacturer does not follow 12131.5(b), the handgun cannot be sold to non-exempt people in California.

The action specified in 12131.5(b) is required for those firearms certified in (a) before they can be sold.

California Code of Regulations says 4070. Roster of Certified Handguns.

(a) Within 10 days of the receipt of the Compliance Test Report, Form FD 021 (Rev. 6-00), and one prototype handgun, from the DOJ-Certified Laboratory; and the receipt of the initial annual listing fee from the manufacturer/importer, the DOJ will determine whether the handgun is not unsafe and may be sold in California. After the determination that the model may be listed, the DOJ will add the handgun model to the Roster of Certified Handguns. The listing will be valid for one year from the date the model was added to the Roster, and shall be renewed as set forth in 4071 of these regulations.

(b) Within 10 days of the receipt of the initial annual listing fee and a request from a manufacturer/importer to have a handgun model added to the Roster pursuant to Penal Code 12131.5, the DOJ will determine whether the handgun model may be listed without testing. After the determination that the model may be listed, the DOJ will add the handgun model to the Roster. The listing will be valid for one year from the date the model was added to the Roster, and shall be renewed as set forth in 4071 of these regulations.

There is no legal selling to non-exempt without the listing.

Matt C
02-03-2011, 12:22 AM
You still have not explained why 12131.5(a) says an "unlisted" gun can meet the requirements of 12131 (a).

Librarian
02-03-2011, 1:05 AM
You still have not explained why 12131.5(a) says an "unlisted" gun can meet the requirements of 12131 (a).

It doesn't mean what you appear to think it means.

The CCR clarifies:

IF a manufacturer submits a gun for testing
AND it passes
AND DOJ adds that model to the Roster

THEN
that same manufacturer
MAY submit a similar model
that they certify differs from the listed model by certain 'minor' characteristics
and DOJ may agree and add that submitted, certified model to the Roster.

The benefit is that the manufacturer pays only the 'listing fee'; they need not submit three copies of the handgun, pay for ammo to test it, and pay the 'testing fee'.

That's all 12131.5 is saying.

And 12131(a) is also perfectly clear: on the Roster only may be sold by dealers to non-exempt. If one stops at 12131.5(a) and does not proceed to (b), then the handgun in question is not on the Roster and may not be sold by dealers to non-exempt.

redcliff
02-03-2011, 1:38 AM
Since we're discussing this subject, I have a related question.... Where does the penal code allow an FFL to import into the State a non-roster firearm for sale to a LEO? I see where it says they can SELL a non-roster handgun to a LEO, but not where an FFL can Import the non-roster handgun. The code seems clear that importing is a violation, not just selling.

CAL. PEN. CODE 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:

(1)The manufacture in this state, or importation into this state, of any prototype pistol, revolver, or other firearm capable of being concealed upon the person when the manufacture or importation is for the sole purpose of allowing an independent laboratory certified by the Department of Justice pursuant to Section 12130 to conduct an independent test to determine whether that pistol, revolver, or other firearm capable of being concealed upon the person is prohibited by this chapter, and, if not, allowing the department to add the firearm to the roster of pistols, revolvers, and other firearms capable of being concealed upon the person that may be sold in this state pursuant to Section 12131.

(2)The importation or lending of a pistol, revolver, or other firearm capable of being concealed upon the person by employees or authorized agents of entities determining whether the weapon is prohibited by this section.

(3)Firearms listed as curios or relics, as defined in Section 478.11 of Title 27 of the Code of Federal Regulations.

(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.
(c)Violations of subdivision (a) are cumulative with respect to each handgun and shall not be construed as restricting the application of any other law. However, an act or omission punishable in different ways by this section and other provisions of law shall not be punished under more than one provision, but the penalty to be imposed shall be determined as set forth in Section 654

halifax
02-03-2011, 2:10 AM
You still have not explained why 12131.5(a) says an "unlisted" gun can meet the requirements of 12131 (a).

So what if an "unlisted" gun CAN meet the requirements, it's still NOT on the list and can't be sold to non-exempt persons.

I CAN be a doctor if I did everything to become one but just because I CAN be doesn't mean I'm allowed to start operating on people.

TahoeSig
02-03-2011, 7:27 AM
How does one determine whether a different generation gun is rostered or not. The roster doesn't have "generation" information in the list available to the public or the FFLs. For example, when you look up the Glock 17, there isn't any specific entry saying Gen3 or Gen4. So if the listed description is correct for both, then how would you be able to distinguish ok versus not-ok?

ke6guj
02-03-2011, 8:38 AM
the Gen 1 -3 Glocks just say "17" on the side for the model 17, so they are covered by the Roster listing. There is no mention of a Generation.

However, the Gen 4 models do have a different model. For instance, the Gen 4 G17 says "17Gen4" on the side. That would be the model, not "17", and "17Gen4" is not on the roster.

tenpercentfirearms
02-03-2011, 12:23 PM
Since we're discussing this subject, I have a related question.... Where does the penal code allow an FFL to import into the State a non-roster firearm for sale to a LEO? I see where it says they can SELL a non-roster handgun to a LEO, but not where an FFL can Import the non-roster handgun. The code seems clear that importing is a violation, not just selling.

CAL. PEN. CODE 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:

(1)The manufacture in this state, or importation into this state, of any prototype pistol, revolver, or other firearm capable of being concealed upon the person when the manufacture or importation is for the sole purpose of allowing an independent laboratory certified by the Department of Justice pursuant to Section 12130 to conduct an independent test to determine whether that pistol, revolver, or other firearm capable of being concealed upon the person is prohibited by this chapter, and, if not, allowing the department to add the firearm to the roster of pistols, revolvers, and other firearms capable of being concealed upon the person that may be sold in this state pursuant to Section 12131.

(2)The importation or lending of a pistol, revolver, or other firearm capable of being concealed upon the person by employees or authorized agents of entities determining whether the weapon is prohibited by this section.

(3)Firearms listed as curios or relics, as defined in Section 478.11 of Title 27 of the Code of Federal Regulations.

(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.
(c)Violations of subdivision (a) are cumulative with respect to each handgun and shall not be construed as restricting the application of any other law. However, an act or omission punishable in different ways by this section and other provisions of law shall not be punished under more than one provision, but the penalty to be imposed shall be determined as set forth in Section 654

Good point.

12132. This chapter shall not apply to any of the following:
(a) The sale, loan, or transfer of any firearm pursuant to Section 12082 in order to comply with subdivision (d) of Section 12072.
(b) The sale, loan, or transfer of any firearm that is exempt from the provisions of subdivision (d) of Section 12072 pursuant to any applicable exemption contained in Section 12078, if the sale, loan, or transfer complies with the requirements of that applicable exemption to subdivision (d) of Section 12072.
(c) The sale, loan, or transfer of any firearm as described in paragraph (3) of subdivision (b) of Section 12125.
(d) The delivery of a pistol, revolver, or other firearm capable of being concealed upon the person to a person licensed pursuant to Section 12071 for the purposes of the service or repair of that firearm.
(e) The return of a pistol, revolver, or other firearm capable of being concealed upon the person by a person licensed pursuant to Section 12071 to its owner where that firearm was initially delivered in the circumstances set forth in subdivisions (a), (d), (f), or (j).
(f) The return of a pistol, revolver, or other firearm capable of being concealed upon the person by a person licensed pursuant to Section 12071 to its owner where that firearm was initially delivered to that licensee for the purpose of a consignment sale or as collateral for a pawnbroker loan.
(g) The sale, loan, or transfer of any pistol, revolver, or other firearm capable of being concealed upon the person listed as a curio or relic, as defined in Section 178.11 of the Code of Federal Regulations.
(h)(1) The Legislature finds a significant public purpose in exempting pistols that are designed expressly for use in Olympic target shooting events. Therefore, those pistols that are sanctioned by the International Olympic Committee and by USA Shooting, the national governing body for international shooting competition in the United States, and that are used for Olympic target shooting purposes at the time that the act adding this subdivision is enacted, and that fall within the definition of "unsafe handgun" pursuant to paragraph (3) of subdivision (b) of Section 12126 shall be exempt, as provided in paragraphs (2) and (3). (2) This chapter shall not apply to any of the following pistols, because they are consistent with the significant public purpose expressed in paragraph (1):
MANUFACTURER MODEL CALIBER
ANSCHUTZ FP .22LR
BENELLI MP90 .22LR
BENELLI MP90 .32 S&W LONG
BENELLI MP95 .22LR
BENELLI MP95 .32 S&W LONG
DRULOV FP .22LR
GREEN ELECTROARM .22LR
HAMMERLI 100 .22LR
HAMMERLI 101 .22LR
HAMMERLI 102 .22LR
HAMMERLI 162 .22LR
HAMMERLI 280 .22LR
HAMMERLI 280 .32 S&W LONG
HAMMERLI FP10 .22LR
HAMMERLI MP33 .22LR
HAMMERLI SP20 .22LR
HAMMERLI SP20 .32 S&W LONG
MORINI CM102E .22LR
MORINI 22M .22LR
MORINI 32M .32 S&W LONG
MORINI CM80 .22LR
PARDINI GP .22 SHORT
PARDINI GPO .22 SHORT
PARDINI GP-SCHUMANN .22 SHORT
PARDINI HP .32 S&W LONG
PARDINI K22 .22LR
PARDINI MP .32 S&W LONG
PARDINI PGP75 .22LR
PARDINI SP .22LR
PARDINI SPE .22LR
SAKO FINMASTER .22LR
STEYR FP .22LR
VOSTOK IZH NO. 1 .22LR
VOSTOK MU55 .22LR
VOSTOK TOZ35 .22LR
WALTHER FP .22LR
WALTHER GSP .22LR
WALTHER GSP .32 S&W LONG
WALTHER OSP .22 SHORT
WALTHER OSP-2000 .22 SHORT
top

(3) The department shall create a program that is consistent with the purpose stated in paragraph (1) to exempt new models of competitive firearms from this chapter. The exempt competitive firearms may be based on recommendations by USA Shooting consistent with the regulations contained in the USA Shooting Official Rules or may be based on the recommendation or rules of any other organization that the department deems relevant.
(i) The sale, loan, or transfer of any semiautomatic pistol that is to be used solely as a prop during the course of a motion picture, television, or video production by an authorized participant therein in the course of making that production or event or by an authorized employee or agent of the entity producing that production or event.
(j) The delivery of a pistol, revolver, or other firearm capable of being concealed upon the person to a person licensed pursuant to Section 12071 where the firearm is being loaned by the licensee to a consultant-evaluator.
(k) The delivery of a pistol, revolver, or other firearm capable of being concealed upon the person by a person licensed pursuant to Section 12071 where the firearm is being loaned by the licensee to a consultant-evaluator.
(l) The return of a pistol, revolver, or other firearm capable of being concealed upon the person to a person licensed pursuant to Section 12071 where it was initially delivered pursuant to subdivision (k).

I do not see anything in there that exempts me from importing. However, I am definitely exempt from sale, loan, or transfer to exempt persons, repairing, or loaning to evaluators.

Librarian
02-03-2011, 12:54 PM
Since we're discussing this subject, I have a related question.... Where does the penal code allow an FFL to import into the State a non-roster firearm for sale to a LEO? I see where it says they can SELL a non-roster handgun to a LEO, but not where an FFL can Import the non-roster handgun. The code seems clear that importing is a violation, not just selling.



Good point.

I do not see anything in there that exempts me from importing. However, I am definitely exempt from sale, loan, or transfer to exempt persons, repairing, or loaning to evaluators.
Oh, that's funny!

I pulled down the .pdf of the dangerous weapons control law (http://ag.ca.gov/firearms/dwcl/dwc.pdf) and searched for 'import' and '12125' and I don't find that, either.

"I'm sorry, officer, I'm not exempt from the PC 12125 importing restriction against unsafe handguns. I'm not allowed to special-order that handgun."

jtmkinsd
02-03-2011, 12:57 PM
Oh, that's funny!

I pulled down the .pdf of the dangerous weapons control law (http://ag.ca.gov/firearms/dwcl/dwc.pdf) and searched for 'import' and '12125' and I don't find that, either.

"I'm sorry, officer, I'm not exempt from the PC 12125 importing restriction against unsafe handguns. I'm not allowed to special-order that handgun."

GREAT...we're all criminals. :willy_nilly:

Matt C
02-03-2011, 10:48 PM
It doesn't mean what you appear to think it means.

That's all 12131.5 is saying.


That's your opinion and interpretation, not a fact. As it happens, I agree with your interpretation, however the other interpretation does have merit.


So what if an "unlisted" gun CAN meet the requirements

I CAN be a doctor if I did everything to become one but just because I CAN be doesn't mean I'm allowed to start operating on people.

Heheh, yes but that was just my paraphrasing, the actual language is not "can meet the requirements" but rather "shall be deemed to satisfy the requirements". If the state declared that your medical degree and training "shall be deemed to satisfy the requirements" of being a doctor, I'd tend to think you were allowed to start operating on people.

Librarian
02-03-2011, 11:00 PM
That's your opinion and interpretation, not a fact. As it happens, I agree with your interpretation, however the other interpretation does have merit.


There's one strong inference we can make that prefers my interpretation over the other.

By what means has the state chosen to inform dealers - the ones affected most by the restriction on 'unsafe handguns' - that a particular handgun has been deemed 'not unsafe'?

The DOJ does not leave it up to guessing or reading bulletins or magazines or circulars from gun manufacturers.

DOJ updates the list used by the DROS software (which, presumably, matches what they publish on the Roster web page).

Matt C
02-03-2011, 11:03 PM
There's one strong inference we can make that prefers my interpretation over the other.

By what means has the state chosen to inform dealers - the ones affected most by the restriction on 'unsafe handguns' - that a particular handgun has been deemed 'not unsafe'?

The DOJ does not leave it up to guessing or reading bulletins or magazines or circulars from gun manufacturers.

DOJ updates the list used by the DROS software (which, presumably, matches what they publish on the Roster web page).

If we just went by whatever the DOJ says there would be a 300k fewer AR and AK variants in this state... ;)

Librarian
02-03-2011, 11:18 PM
If we just went by whatever the DOJ says there would be a 300k fewer AR and AK variants in this state... ;)

True, but it's a different case, as I am sure you know.

DOJ audits CA FFLs. Whether that is good or ill, well or poorly accomplished, really doesn't matter. It's a condition of being in the gun sales business in CA.

So, any CA-FFL who acts differently, as if the Roster is more malleable than that drop-down list in the software, is taking a risk. (Whether the Roster is accurate is entirely a different discussion; I believe It Has Problems.)

I don't really know how much of a risk of discovery there might be, but selling off-Roster handguns improperly is a misdemeanor.

And I'm OK with any businessperson choosing to accept whatever risks they like; it's their business, their license, their bank accounts and liberty to place at risk.

This one seems to be an easy risk to avoid.

Matt C
02-03-2011, 11:24 PM
Agree 100%. Like I said, it would be very foolish to try this IMO, I was just playing devil's advocate in answer to the question asked by Gryff, apparently in regard to past conduct by an FFL who may not have known better.

Gryff
02-19-2011, 12:05 PM
Damn...the gun store finally figured out that they can't sell the model.

oni.dori
02-20-2011, 2:19 AM
...(2) the Roster will fall eventually. Buncha dingbats.

Ya, but the key question is exactly WHEN? (Ya, Ya, I know, I know..."In about two weeks".)