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  #1  
Old 09-10-2017, 3:48 PM
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BAJ475 BAJ475 is offline
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Default Fireams law as applied to military being stationed in CA

I know that this has probably been asked before but I did not find a clear answer. My brother's grandson is a naval officer, who is presently stationed in South Carolina. In November or December he is scheduled to be transferred to San Diego. When he went into the military, he was a Colorado resident, which I believe is his home of record. I suggested that he buy any off roster handguns he might want, before he leaves South Carolina, because it appears that he would not be able to purchase them here after he arrives in CA. While under federal law it appears that he would be classified as a CA resident for purchasing firearms in CA, under CA law it appears that he would not be a CA resident because he would not be moving to CA to establish CA residency under CA law. Thus, it appears that he would not be able to purchase any firearms in CA because of lack of CA residency under CA law. Is this correct?

What if my brother wants to gift his grandson any firearm. Because the are not residents of the same state, I understand that under federal law the transfer would have to go through an FFL where his grandson resides, which I assume would be CA based on his military orders. But, without being a CA resident, how could a CA FFL complete the transfer?

Assume that he purchases a few off roster guns in South Carolina. Would he have to register them in CA after he gets to San Diego or is he exempt because he is active duty military and did not move here to establish CA residency under CA law? It appears that he would not be a “personal firearm importer” because under PC §17000(a)(6) he would not have moved here as a resident of this state and under PC §17000(b)(2) he will not have been discharged in this state.

Am I correct that he could not sell any off roster handgun that he acquired in South Carolina in CA, without first becoming a CA resident?
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Old 09-10-2017, 4:06 PM
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Any firearm he brings to CA needs to be CA legal (can not be considered an assault weapon, DD, MG, SBR, or SBS under CA laws).
In addition, he can not bring any personally owned large capacity magazines to CA.
^He can bring large capacity magazines that are issued to him by the Mil, because legally he does not owned them, the Mil owns them and the Mil is exempt.

As long as he is active duty, he is exempt from needing to register any firearm he brings with him to CA.


AFAIK... (not 100% sure anymore)
Mil ID with permanent orders for CA would allow him to acquire firearms in CA and should allow him to PPT firearms.
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Old 09-11-2017, 11:06 AM
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Quote:
Thus, it appears that he would not be able to purchase any firearms in CA because of lack of CA residency under CA law. Is this correct?
Incorrect. He will be permitted to purchase firearms if he shows PCS orders. As for your brother in ID gifting off roster firearms to his grandson stationed in CA, it shouldn't be a problem. It should be treated as an interstate intrafamilial transfer. Again, his PCS orders should permit the FFL to do the DROS. He may need a CDL due to the way the DROS software is set up. You may want to confirm this on the FFL forum.

Not that this is a scheme to avoid using a CA FFL to make a transfer from your brother to you, were it that your intention is not to do so since in that case the roster would apply, I suggest you read fiddletown's post from 2007 if you don't want to catch a wobbler/felony.


Quote:
Quote:
Originally Posted by LACRESTALONGSHOT View Post
I want an off roster current production hand gun. My brother lives in a state the gun is legal to buy new. He can buy the gun then gift it to my mother who lives in CA right? Now the gun is registered and legal for my mom to own in CA right? Would my mom be able to then gift it to me in CA thus making it legal for me to own the gun in CA? if all of these are a yes is there any amount of time she has to keep it in her name before gifting it to me?
There's still a possible problem.
What matters is the substance rather than the form of a transaction.

In the transaction described (Child A to Parent to Child B), 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 the other.

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

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

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.

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.

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

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) ...
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) ...
In the transaction described (Child A to Parent to Child B) ---

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

But instead he transfers the gun to a parent for the purpose of the parent transferring the gun to the other child (the original transferor's 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 one of his children and for the purpose of transferring it to to another of his children (the original transferor's 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 transferor (Child A) 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 to Child B (the original transferor's brother) for the purposes of avoiding going through an FFL. And thus the first sibling has violated 27515

Furthermore, the parent has acquired the gun with for the purpose of transferring it to one of his children (the original transferor's brother) and with the intent of thereby effecting the transfer of the gun from one of his children to the another of his children (the original transferor's brother) outside the requirements of 27545. The parent thus violates 27520.
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That post is found at http://www.calguns.net/calgunforum/s....php?t=1179771

Last edited by Chewy65; 09-11-2017 at 11:46 AM..
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  #4  
Old 09-12-2017, 11:54 AM
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Originally Posted by Chewy65 View Post
Incorrect. He will be permitted to purchase firearms if he shows PCS orders. As for your brother in ID gifting off roster firearms to his grandson stationed in CA, it shouldn't be a problem. It should be treated as an interstate intrafamilial transfer. Again, his PCS orders should permit the FFL to do the DROS. He may need a CDL due to the way the DROS software is set up. You may want to confirm this on the FFL forum.

Not that this is a scheme to avoid using a CA FFL to make a transfer from your brother to you, were it that your intention is not to do so since in that case the roster would apply, I suggest you read fiddletown's post from 2007 if you don't want to catch a wobbler/felony.

That post is found at http://www.calguns.net/calgunforum/s....php?t=1179771
Thanks for the reply. I am aware of fiddletown's posts and do not disagree with his analysis. As for myself, my son will be moving to ID as soon as he gets a job there. He had an interview yesterday that he thinks went well. And, in any event, my wife and I are planning on moving to ID within the next 18 months. So I am not contemplating a sibling to sibling transfer. My concern is to help make sure that my brother's grandson is not stuck with the poor selection of handguns on the rooster, given that he will most likely be stationed in CA for about 3 years. As a naval officer, there is no way that he would attempt anything unless it is very clear that he would not be violating any law.
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Old 09-13-2017, 7:29 AM
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Be aware that state firearms laws superceed any federal firearm laws. Same applies to immigration.
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Old 09-13-2017, 8:21 AM
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Be aware that state firearms laws superceed any federal firearm laws. Same applies to immigration.
And drugs. Free speech. Jail time. Shall I name more?
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Old 09-13-2017, 8:52 AM
Chewy65 Chewy65 is offline
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Originally Posted by Skip_Dog View Post
And drugs. Free speech. Jail time. Shall I name more?
California has been doing a good job of placing its laws above the Constitution.
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Old 09-14-2017, 7:58 AM
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And the cowardly SCOTUS has gone along and let them do whatever they want. CA laws are supreme here. The feds have checked out.
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