Intra-familial (within family) transfers

[Librarian]

There's a lot of confusion about this. I don't know why - it's pretty straightforward.

First, what is a 'family'?Penal Code 12078(c)(3)
As used in this subdivision, "immediate family member" means any one of the following relationships:
(A) Parent and child.
(B) Grandparent and grandchild.

NOT cousins.
NOT brothers or sisters.
NOT uncles or aunts or nephews.

Blood relatives related parent-child or grandparent-grandchild are all of it.

NB: Husbands and wives are not mentioned as members of the immediate family, and transfers between spouses are not explicitly included. I don't know why that is. I speculate that it may be associated with California 'community property' law (see, for example, Family Code 1100).

ETA: See Amendment II's post in #7, below.

http://www.cagunlaws.com/ has a FAQ question where they say transfer between spouses is OK. They probably know what they're talking about.

Why would anyone care about an intrafamilial transfer?
Penal Code 12078(c)
(1) Subdivision (d) of Section 12072 shall not apply to the infrequent transfer of a firearm that is not a handgun by gift, bequest, intestate succession, or other means by one individual to another if both individuals are members of the same immediate family.

(2) Subdivision (d) of Section 12072 shall not apply to the infrequent transfer of a handgun by gift, bequest, intestate succession, or other means by one individual to another if both individuals are members of the same immediate family and all of the following conditions are met:
(A) The person to whom the firearm is transferred shall, within 30 days of taking possession of the firearm, forward by prepaid mail or deliver in person to the Department of Justice, a report that includes information concerning the individual taking possession of the firearm, how title was obtained and from whom, and a description of the firearm in question. The report forms that individuals complete pursuant to this paragraph shall be provided to them by the Department of Justice.
(B) The person taking title to the firearm shall first obtain a handgun safety certificate.
(C) The person receiving the firearm is 18 years of age or older.
This means that intrafamilial transfers are not required to go through an FFL if the gun is going from one California resident to another.

And handgun transfers that need not go through a licensed dealer are exempt from the Roster requirement.

ETA: Transfers from out of state into California MUST go through a California FFL, but there is an override in the DROS software so intrafamilial GIFTS are not required to be on the Roster.

Long guns can just be transferred.

Handguns require that the giver files the the "Operation of Law or Intrafamilial Handgun Transaction Report (http://caag.state.ca.us/firearms/forms/pdf/oplaw.pdf)” [ PC 12071(a)(3) ]

ETA: The DOJ will, by all reports, eventually send you a confirmation of the handgun transfer(s) when using the form. Response times noted have been from a few weeks to months. The transfer, however, occurs when you pass the gun(s) to the new owner; the acknowledgment from DOJ is not needed before the new owner can use the transferred handgun(s).

Remember, your brother or cousin or uncle CAN give you a gun for a present or sell you a gun in a PPT - but it has to go through an FFL, exactly as if you were complete strangers.

[swhatb]

If you do an intrafamilial transfer for an OLL, how does one document the transfer? It's not like you have a receipt; like a handgun showing it now belongs to someone else becomes one mailed in the "Operation of Law or Intrafamilial Handgun Transaction Report” to DOJ.

[FCinCA]

What about intrafamilial transfers of non listed handguns from out of state? Can they be sent to a CA FFL for the transfer?

[Librarian]

If you do an intrafamilial transfer for an OLL, how does one document the transfer? It's not like you have a receipt; like a handgun showing it now belongs to someone else becomes one mailed in the "Operation of Law or Intrafamilial Handgun Transaction Report” to DOJ.
An OLL is just a rifle. No documentation needed according to law, though you can voluntarily register it.

[Librarian]

What about intrafamilial transfers of non listed handguns from out of state? Can they be sent to a CA FFL for the transfer?
Yes, but only as GIFTS - they can't be sales. Posts in other threads indicate there's a DROS over-ride for intra-familial.

[CenterX]

[QUOTE=Librarian;1092564]There's a lot of confusion about this. I don't know why - it's pretty straightforward.

First, what is a 'family'?

NOT cousins.
NOT brothers or sisters.
NOT uncles or aunts or nephews.

In 1999, I got a transfer from out of state Via Police department to an FFL from a deceased Uncle. I went to the police station in the city where he died and asked for his personal belongings - they had his old service revolver and a few rings. The rings were handed to me at the time and the revolver was sent once I arranged receipt via an FFL.
Now, was that before the current law?

(there have been so many legal modificaiton in the past 10 years it is costing us a lot in taxes just to employ the tech writers).

[Mssr. Eleganté]

NB: Husbands and wives are not mentioned as members of the immediate family, and transfers between spouses are not explicitly included. I don't know why that is. I speculate that it may be associated with California 'community property' law (see, for example, Family Code 1100).

You are correct in speculating that it is associated with California community property law. Section 850 of the California Family Code is the one that applies.

But first we have to look at the California Penal Code. CPC Section 12078(i)(2) is the one that exempts "operation of law" handgun transfers from Dealer and DROS requirements.

Then CPC Section 12078(u)(2)(G) says that "operation of law" includes firearms transfers made pursuant to Section 850 of the Family Code.

Here are all of the relevant Sections...

CPC 12078(i)(2) - Subdivision (d) of Section 12072 shall not apply to a person who takes title or possession of a handgun by operation of law if the person is not prohibited by Section 12021 or 12021.1 of this code or Section 8100 or 8103 of the Welfare and Institutions Code from possessing firearms and all of the following conditions are met: (A) If the person taking title or possession is neither a levying officer as defined in Section 481.140, 511.060, or 680.210 of the Code of Civil Procedure nor a person who is receiving that firearm pursuant to subparagraph (G), (I), or (J) of paragraph (2) of subdivision (u), the person shall, within 30 days of taking possession, forward by prepaid mail or deliver in person to the Department of Justice, a report of information concerning the individual taking possession of the firearm, how title or possession was obtained and from whom, and a description of the firearm in question. The reports that individuals complete pursuant to this paragraph shall be provided to them by the department. (B) If the person taking title or possession is receiving the firearm pursuant to subparagraph (G) of paragraph (2) of subdivision (u), the person shall do both of the following: (i) Within 30 days of taking possession, forward by prepaid mail or deliver in person to the department, a report of information concerning the individual taking possession of the firearm, how title or possession was obtained and from whom, and a description of the firearm in question. The reports that individuals complete pursuant to this paragraph shall be provided to them by the department. (ii) Prior to taking title or possession of the firearm, the person shall obtain a handgun safety certificate.

CPC 12078(u) - As used in this section:

(2) "A person taking title or possession of firearms by operation of law" includes, but is not limited to, any of the following instances wherein an individual receives title to, or possession of, firearms:

(G) A transmutation of property consisting of firearms pursuant to Section 850 of the Family Code.

CFC 850. Subject to Sections 851 to 853, inclusive, married persons may by agreement or transfer, with or without consideration, do any of the following:

(a) Transmute community property to separate property of either spouse.
(b) Transmute separate property of either spouse to community property.
(c) Transmute separate property of one spouse to separate property of the other spouse.

So when you use the "Operation of Law/Intrafamilial Handgun Transaction Report" to report a transfer between spouses, you are using the "operation of law" part of the form name. And when you use the form to transfer between parent and child, you are using the "Intrafamilial" part of the form name.

[Librarian]

So when you use the "Operation of Law/Intrafamilial Handgun Transaction Report" to report a transfer between spouses, you are using the "operation of law" part of the form name. And when you use the form to transfer between parent and child, you are using the "Intrafamilial" part of the form name.
Very cool; thanks, Amendment II!

[Librarian]

In 1999, I got a transfer from out of state Via Police department to an FFL from a deceased Uncle. I went to the police station in the city where he died and asked for his personal belongings - they had his old service revolver and a few rings. The rings were handed to me at the time and the revolver was sent once I arranged receipt via an FFL.
Now, was that before the current law?

(there have been so many legal modificaiton in the past 10 years it is costing us a lot in taxes just to employ the tech writers).
Well, it was before the Roster, so whatever it was the FFL would have had no problem transferring it to you. Intra-family handgun transfer didn't really get "interesting", IMHO, until the Roster became effective in 2001.

Nice family heirloom, I hope.

[5150Marcelo]

So when you use the "Operation of Law/Intrafamilial Handgun Transaction Report" to report a transfer between spouses, you are using the "operation of law" part of the form name. And when you use the form to transfer between parent and child, you are using the "Intrafamilial" part of the form name.[/QUOTE]

Is that with spouses only,or cousins too??? *Operation of Law*

[swhatb]

An OLL is just a rifle. No documentation needed according to law, though you can voluntarily register it.

But if one wants a receipt (not voluntarily registering it) what do you suggest? A receipt meaning that XXX had it before and gave it to YYY, show prove they are the actual owner, just in case a question comes up, say 5-10-15-30 years later, and I'm dead and gone but my daughter owns it.

[Mssr. Eleganté]

Is that with spouses only,or cousins too??? *Operation of Law*

CFC 850. Subject to Sections 851 to 853, inclusive, married persons may by agreement or transfer, with or without consideration, do any of the following:

(a) Transmute community property to separate property of either spouse.
(b) Transmute separate property of either spouse to community property.
(c) Transmute separate property of one spouse to separate property of the other spouse.

If you are married to your cousin then yes, cousins too.

[Librarian]

Is that with spouses only,or cousins too??? *Operation of Law*Not unless you're from a state where spouses can be cousins.

Even inheritance/bequest covers only the parent/child, grandparent/grandchild. Cousins are right out.

[Librarian]

But if one wants a receipt (not voluntarily registering it) what do you suggest? A receipt meaning that XXX had it before and gave it to YYY, show prove they are the actual owner, just in case a question comes up, say 5-10-15-30 years later, and I'm dead and gone but my daughter owns it.
Ask a lawyer, I guess. Lots of places want to sell you Bill of Sale forms usable in California. This link (http://www.re-quest.net/g2g/legal-forms/general/) claims to have free ones. I have no idea what would be a legally sufficient record - not my area.

[swhatb]

Ask a lawyer, I guess. Lots of places want to sell you Bill of Sale forms usable in California. This link (http://www.re-quest.net/g2g/legal-forms/general/) claims to have free ones. I have no idea what would be a legally sufficient record - not my area.

Thanks for the honest answer. Good to know long guns don't require anything, any ways.

[sfwdiy]

Yes, but only as GIFTS - they can't be sales. Posts in other threads indicate there's a DROS over-ride for intra-familial.

So a parent in another state can gift you an off-list handgun? This is intriguing to me. Can they bring it into the state and give it to you, then you fill out the transfer form? Or do they have to ship it to your FFL?

Does the law only apply to blood relatives, or do step-parents count? My Mom married her current husband when I was a minor and they both live in Colorado. This topic came up with the family once or twice but no one was sure of the details.

--Ben

[Quiet]

So a parent in another state can gift you an off-list handgun? This is intriguing to me. Can they bring it into the state and give it to you, then you fill out the transfer form? Or do they have to ship it to your FFL?
Since the handgun is crossing state borders, it needs to be shipped to a CA 01-FFL dealer in order to comply with federal law.

[otteray]

:shrug:
Does the law only apply to blood relatives, or do step-parents count? My Mom married her current husband when I was a minor and they both live in Colorado. This topic came up with the family once or twice but no one was sure of the details.
--Ben

I'm curious, too!
A step mom for decades is less legal than a real mom that left when the kid was 5 years old?
Seems discriminatory... or prejudice.

[sfwdiy]

So? Anyone know if step-parents count? By that I mean specifically, the legally married spouse of one of your biological parent.

--Ben

[Hunter]

So? Anyone know if step-parents count? By that I mean specifically, the legally married spouse of one of your biological parent.

--Ben

If the step-parent is/was your legal guardian, then yes. Otherwise they will need to gift the firearm to the other spouse (blood parent) before it is gifted to the child.

[Monkeystein]

I don't know if step parents count. I doubt that there's been a case on that yet.

However, if you want to make sure, you can transfer it to your dad/mom and he/she can then transfer it to his/her new wife/husband.

Same, if you want to give a gun to your, say, brother, you can first xfer it to your dad/mom then he/she can xfer it to the brother.

If you want to give it to your cousin, and you have grandparents alive, just xfer it to one of them, then he/she can xfer it to the cousin.

Furthermore, to get a gun from an immediate relative from out of state, just have him ship it to himself, c/o you at your address; have him include the filled-out form for out-of-staters declaring their weapons in CA & send it in with the fee; then fill out the form transferring it to you (with fee if it's a handgun). Bingo.

[Hunter]

...Furthermore, to get a gun from an immediate relative from out of state, just have him ship it to himself, c/o you at your address; have him include the filled-out form for out-of-staters declaring their weapons in CA & send it in with the fee; then fill out the form transferring it to you (with fee if it's a handgun). Bingo.

This is completely wrong.

First on the shipping, while one can indeed ship guns to oneself, they MUST be retreived by the owner. Yes someone can receive the package for the owner but the owner is the own who needs to open said package at destination.

Now for the part that one then just fills out the transfer form and sends it in is also wrong. Doing this you will have now commited a FEDERAL crime by receiving said firearm, via interstate shipment, without an FFL involved.

[Monkeystein]

and they're going to know.. how?

ok fine, so the next the relative visits, he/she brings it along. End result is the same.

[Hunter]

and they're going to know.. how?

Let me see, maybe because you fill out the transfer form that shows your parent's legal residence being out of state and that you aquired it from them???

If you are not going to follow legal laws and instead have both you and your parent committing a felony, why even bother with the transfer form??

[Hunter]

..ok fine, so the next the relative visits, he/she brings it along. End result is the same.



It still is illegal unless it is then taken to a CA FFL for the transfer to you. Bottom line is that any interstate firearm transfer from a resident of another state MUST go thru a FFL to be legal. If one doesn't do the transfer on say a handgun properly and it is then found later (say robbery or some action of law) you will then be nailed for illegal possession. Think it through.

[Monkeystein]

Federal law is very lax about what "residence" means. "A person coming into a place with intention to establish his domicile or permanent residence, and who in consequence actually remains there." There is no time limit. So your mom or whoever says she had a sudden desire to be a Californian, got here, was so happy that she xferred all her guns to you, then the next day realized there were no White Castles here and changed her mind and left.

"Residence" largely hinges on intent. Intent is hard to prove.

[Hunter]

Federal law is very lax about what "residence" means. "A person coming into a place with intention to establish his domicile or permanent residence, and who in consequence actually remains there." There is no time limit. So your mom or whoever says she had a sudden desire to be a Californian, got here, was so happy that she xferred all her guns to you, then the next day realized there were no White Castles here and changed her mind and left.

"Residence" largely hinges on intent. Intent is hard to prove.

If you truely believe you can win this defense, well more power to you. But if I were a betting man I would say the end result in a CA court would have you barred for life from firearm ownership due to the felony you will be slapped with. Regardless of the outcome, you would have your bank account drained for legal fees (win or loose) and most likely the guns confiscated anyways as a "plea bargain" by the DA to drop charges. Remember, this is not Kansas.

[Monkeystein]

guess I shouldn't have let my dad open the SKS I had sent from Georgia to my C&R address then. :O

[Mssr. Eleganté]

Same, if you want to give a gun to your, say, brother, you can first xfer it to your dad/mom then he/she can xfer it to the brother.

If you want to give it to your cousin, and you have grandparents alive, just xfer it to one of them, then he/she can xfer it to the cousin.

No!

If you want to give a gun to your brother or your cousin then you need to do a PPT through a Dealer.

If you want to give a gun to one of your parents or grandparents and then they later decide that they want to give it to your brother/cousin then it is none of your business what they do with it. ;)

[CABilly]

Got this thread via search feature.

Why would anyone care about an intrafamilial transfer?
Quote:
Penal Code 12078(c)
(1) Subdivision (d) of Section 12072 shall not apply to the infrequent transfer of a firearm that is not a handgun by gift, bequest, intestate succession, or other means by one individual to another if both individuals are members of the same immediate family.


Does this apply to pre-ban AW and/or high-cap mags? If "unsafe" handguns are exempt, it begs the question.

I'm sorry if this has been covered. I've been searching and haven't found anything.

[Quiet]

Does this apply to pre-ban AW and/or high-cap mags? If "unsafe" handguns are exempt, it begs the question.

I'm sorry if this has been covered. I've been searching and haven't found anything.
The interfamilial transfer exemption does not apply to assault weapons and large capacity magazines.

[Librarian]

To expand a bit on Quiet's correct answer, part of the annoyance of the California 'assault weapon' law is that the described weapons cannot be transferred to non-LEO/FFL inside California, at all. A similar restriction is on so-called 'large-capacity' magazines.

In neither case is there a "ban" for the current generation of owners; e.g. heroin is 'banned' - there is no legal transfer or possession or use of heroin outside of LEO and some small scientific institutional use. Registered 'assault weapons' and 'large-capacity' magazines may be owned, possessed and used in California.

I'm sure the intent in both cases is that the laws function as a slow-motion ban, with an indefinite date. Since the last 'assault weapon' registration date was Jan 1, 2000, and one must be at least 18 to register a rifle, I'd guess somewhere around 2100 the last legal 'assault weapon' owner will have passed on.

Unless the laws change, of course. (Well, the owners will likely pass by then anyway - I mean the part about registered aw's might change.)

The now-expired Federal 'assault weapons' law (the only obvious reference to 'pre-ban') has no application in California.

[CABilly]

To expand a bit on Quiet's correct answer, part of the annoyance of the California 'assault weapon' law is that the described weapons cannot be transferred to non-LEO/FFL inside California, at all. A similar restriction is on so-called 'large-capacity' magazines.

In neither case is there a "ban" for the current generation of owners; e.g. heroin is 'banned' - there is no legal transfer or possession or use of heroin outside of LEO and some small scientific institutional use. Registered 'assault weapons' and 'large-capacity' magazines may be owned, possessed and used in California.

I'm sure the intent in both cases is that the laws function as a slow-motion ban, with an indefinite date. Since the last 'assault weapon' registration date was Jan 1, 2000, and one must be at least 18 to register a rifle, I'd guess somewhere around 2100 the last legal 'assault weapon' owner will have passed on.

Unless the laws change, of course. (Well, the owners will likely pass by then anyway - I mean the part about registered aw's might change.)

The now-expired Federal 'assault weapons' law (the only obvious reference to 'pre-ban') has no application in California.

Balls. That sucks. (heh, /Yoda)

Thanks for the clarification. Nothing even in the sense of bequest? What happens when the owners eventually DO pass on? Does the ATF crash the wake with their prybars and warrants, ready to take the guns?

[Quiet]

Nothing even in the sense of bequest? What happens when the owners eventually DO pass on? Does the ATF crash the wake with their prybars and warrants, ready to take the guns?
BATFE could care less.
It's the CA DOJ BoF agents that'll crash the wake.

What happens is the executor of the will/estate either turns them over to LE for destruction or sells them out of state.

[Librarian]

Balls. That sucks. (heh, /Yoda)

Thanks for the clarification. Nothing even in the sense of bequest? What happens when the owners eventually DO pass on? Does the ATF crash the wake with their prybars and warrants, ready to take the guns?

PC 12285 (b) (1) Except as provided in paragraph (2), no assault weapon possessed pursuant to this section may be sold or transferred on or after January 1, 1990, to anyone within this state other than to a licensed gun dealer, as defined in subdivision (c) of Section 12290, or as provided in Section 12288.

Any person who (A) obtains title to an assault weapon registered under this section or that was possessed pursuant to paragraph (1) of subdivision (f) of Section 12280 by bequest or intestate succession, or (B) lawfully possessed a firearm subsequently declared to be an assault weapon pursuant to Section 12276.5, or subsequently defined as an assault weapon pursuant to Section 12276.1, shall, within 90 days,

render the weapon permanently inoperable,

sell the weapon to a licensed gun dealer,

obtain a permit from the Department of Justice in the same manner as specified in Article 3 (commencing with Section 12230) of Chapter 2,

or remove the weapon from this state.

Looks like I was wrong about selling directly to LEO. Can surrender one to LEO, though.