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Old 09-11-2013, 5:52 PM
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fiddletown fiddletown is offline
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Quote:
Originally Posted by krpduner View Post
...I would never suggest you break the law but that scenario could easily happen and Im sure has innocently happened in the past when no one ever even thought about it.
Actually, you are suggesting breaking the law. I don't think anyone will buy your "wink-wink/nudge-nudge" nonsense.

Quote:
Originally Posted by Mssr. Eleganté View Post
For a legitimate family transfer, for instance from you to your father or from your father to your brother, there is currently no fee or paperwork required if all parties to the transaction are California residents....
Except if the gun is a handgun, the transferee must have a Handgun Safety Certificate and file the "Operation of Law" form.

Quote:
Originally Posted by SLO1911Fan View Post
...But is it illegal to go from a brother to a parent and then back down to another brother?
Pretty much.
  1. There is legal authority (most commonly applied in tax cases) for looking at the substance rather than the form of a transaction.

    1. In the transaction described (brother to parent to other brother), while the form of the transaction appears to be two successive intrafamilial transfers, the actual intent when the hokum is stripped away is to get the gun from one brother to another.

    2. Thus the substance and intent of the transaction is to transfer the gun from one brother to another. Under Penal Code 27545, such transfer must generally go through an FFL with the usual formalities (DROS, etc.).

    3. The use of the parent as intermediate transferee is a mere subterfuge to attempt to invoke the exemption of Penal Code 27870.

    4. However, it is entirely possible that a court will look beyond the sham form of the transaction and see the underlying transaction as one outside the 27870 exemption.

    5. The true nature of the transaction is a question of intent. But prosecutors in various situations can convince juries of intent, often from circumstantial evidence. A slip of the tongue, posting something on the Internet, tracks left by money transfers have all, in one way or another, and in various contexts, helped convince a jury of intent.

  2. The sham transaction as described above specifically and directly violates Penal Code 27515 and 27520.

    1. Penal Code 27515 provides, in pertinent part, as follows (emphasis added):
      Quote:
      27515. No person, ...shall ... transfer a firearm to anyone whom the person, ... knows or has cause to believe is not the actual purchaser or transferee of the firearm, ..., if the person, ... has either of the following:
      (a) Knowledge that the firearm is to be subsequently ...transferred to avoid the provisions of Section 27540 or 27545.

      (b) ...
    2. Penal Code 27520 provides, in pertinent part, as follows (emphasis added):
      Quote:
      27520. No person, ... shall acquire a firearm for the purpose ... transferring the firearm, if the person, ...has either of the following:
      (a) ...

      (b) In any other case, intent to avoid either of the following:
      (1) The provisions of Section 27545.

      (2) ...
    3. In the transaction described (brother to parent to other brother) ---

      1. The intent of the first brother is to ultimately see the gun transferred to the second brother, a transfer which, under 27545, must go through an FFL.

      2. But instead he transfers the gun to a parent for the purpose of the parent transferring the gun to the second brother, a transfer which would be under the exception to 27545 described in Penal Code 27870.

        • Thus the parent is not the actually transferee of the gun. The parent is merely an intermediary receiving the gun as the agent or proxy of the second brother and for the purpose of transferring it to the second brother without going through an FFL.

        • All the parties know and understand that to be the nature of the transaction and the purpose of the transfer to the parent.

        • The first brother therefore has transferred a gun to another person knowing that person is not the actual transferee and knowing that person will transfer the gun to the second brother for the purposes of avoiding going through an FFL. And thus the first brother had violated 27515

        • Furthermore, the parent has acquired the gun with for the purpose of transferring it to the second brother and with the intent of thereby effecting the transfer of the gun from the first brother to the second outside the requirements of 27545. The parent thus violates 27520.
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Last edited by fiddletown; 09-11-2013 at 6:01 PM.. Reason: correct typo
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