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California 2nd Amend. Political Discussion & Activism Discuss gun rights activism and 2A related political topics here. All advice given is NOT legal counsel.

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  #1  
Old 03-09-2011, 11:06 AM
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Default DOJ just called - intrafamilial transfer

6 weeks ago I emailed DOJ regarding the proper procedure for out of state father transfer (gift) of handgun(s) to Ca resident son. They just called me today and informed me that my father can bring the handgun(s) to me and give them to me. I then would have to fill out the DOJ Report of operation of law or Intra-familial handgun transaction form and send them a $19 check.

If dad ships handgun(s) they have to go to ffl and be drosed. Also one every 30 days applies.

Still wish they responded in writing.
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Old 03-09-2011, 11:11 AM
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Quote:
Originally Posted by robnbritt View Post
6 weeks ago I emailed DOJ regarding the proper procedure for out of state father transfer (gift) of handgun(s) to Ca resident son. They just called me today and informed me that my father can bring the handgun(s) to me and give them to me. I then would have to fill out the DOJ Report of operation of law or Intra-familial handgun transaction form and send them a $19 check.

If dad ships handgun(s) they have to go to ffl and be drosed. Also one every 30 days applies.

Still wish they responded in writing.
If Dad lives in another state this would imply DOJ is instructing you/him to violate federal law - I'm not aware that two unlicensed individuals as residents of different states may transfer ownership of a handgun without going through an FFL; nor that a federal intrafamilial exemption exists.

Perhaps they are asserting such a procedure would not violate CA law only, it does seem to violate federal law.
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Old 03-09-2011, 11:12 AM
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While that answer is correct for California law, to do so would be a violation of federal law. Federal law requires that citizens from different states doing transfers use an FFL in the recipients state. So in your case you would need to choose an FFL in California.

Any pistols that are received would be roster exempt. Beware of anything that is AOW or AW.
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Old 03-09-2011, 11:16 AM
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Does the DROS still need to take place then? Or does the CA FFL simply hand it over since you would have the intra-familia form?
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Old 03-09-2011, 11:17 AM
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That is what I thought also. When I asked she stated that there was no prohibition becusea it would be a gift not a sale.

Makes you wonder as to the accuracy of DOJ's legal "advice"
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Old 03-09-2011, 11:17 AM
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The DOJ lady stated if shipped it would have to be DROSed
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Old 03-09-2011, 11:20 AM
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You can not count on the State to give the proper answer with respect to Federal laws and vice versa. This means that if you have a question which involves different states, you also need to check with the Feds and perhaps the other state as well. If you got the name of the person who told you that, you should call them back and inform the to call the BATF to get educated on Federal law.

As stated, the transfer of firearms between residents of different states has to go through a FFL (Federal law).

It would have to be DROS'd and have a 10 day waiting period. It does not matter if it was shipped or personally delivered to the FFL.
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Old 03-09-2011, 11:20 AM
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I guess we've figured out why they wouldn't put it in writing.
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Old 03-09-2011, 11:23 AM
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Quote:
Still wish they responded in writing.
Yes, makes you wonder.

The oplaw form indicates that you agree to have a backround check run, so California would be happy about that. Still, there is that whole Federal thing.
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Old 03-09-2011, 11:24 AM
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Thanks for the clarification, Kemasa. I have been asked this before and was unsure if the DROS still applied.
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Old 03-09-2011, 11:27 AM
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You need to contact an FFL familiar with intra-familial transfers.
Where are you located?
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Old 03-09-2011, 11:27 AM
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I'd say you don't chance it I went through something similar & received differing opinions from different people @ the CADOJ. I say ship them, pay the DROS & go through the headache, because last thing you want is to deal w/ the BATF
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Old 03-09-2011, 11:28 AM
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You are welcome. The intrafamilial form means nothing to a FFL.

Ask the BATF to get the final answer, although some there don't know either.
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Last edited by kemasa; 03-09-2011 at 11:32 AM..
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  #14  
Old 03-09-2011, 11:31 AM
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I am in Sac and have been talking to Rob @ GoldenState Tactical for a while about all the different answers on how to do this. We agreed that I/we will ship them and do the DROS. Better safe than sorry. Just wish it was a little easier to play by the "rules" and not have to guess as to the legal way.
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Old 03-09-2011, 11:34 AM
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As stated, intrafamilial transfers are exempt from the certified list. There is a thread on that issue.
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Old 03-09-2011, 11:36 AM
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Do you recall the name of the DOJ person who "helped" you? Or maybe the phone number from which she called? I would follow up on this if I knew who to talk to. Pm me if you don't want to shout it out.
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Old 03-09-2011, 11:39 AM
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Any response that is not in writing is of zero value. Further, DOJ's alleged response doesn't mean that Fed law may be ignored. We've covered intra-fam xfers at length; see the Wiki and trust a low-level DOJ telephone clerk with your freedom at your peril.
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  #18  
Old 03-09-2011, 11:44 AM
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paul0660 pm sent with #'s. Call was recieved @ 10:48am 3/9
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Old 03-09-2011, 11:52 AM
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Quote:
Originally Posted by robnbritt View Post
I am in Sac and have been talking to Rob @ GoldenState Tactical for a while about all the different answers on how to do this. We agreed that I/we will ship them and do the DROS. Better safe than sorry. Just wish it was a little easier to play by the "rules" and not have to guess as to the legal way.
Do what you are comfortable with, definitely.

Quote:
Originally Posted by kemasa View Post
As stated, intrafamilial transfers are exempt from the certified list. There is a thread on that issue.
This is true.
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Old 03-09-2011, 12:10 PM
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Interfamilial transfers are exempt from the 1 in 30 law. There is no federal restriction for selling or transferring a bequeathed firearm in person as long as state law is followed.
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Old 03-09-2011, 12:22 PM
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Quote:
Originally Posted by robnbritt View Post
I am in Sac and have been talking to Rob @ GoldenState Tactical for a while about all the different answers on how to do this. We agreed that I/we will ship them and do the DROS. Better safe than sorry. Just wish it was a little easier to play by the "rules" and not have to guess as to the legal way.
I believe you and Rob would find useful the Calguns Foundation Wiki articles on
Intrafamilial transfer - http://wiki.calgunsfoundation.org/in...Family_Members

Interstate transfer - http://wiki.calgunsfoundation.org/in...rms_Interstate
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- most questions that start 'Is it legal ...' go there.

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Old 03-09-2011, 1:18 PM
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Just got off the phone with Renee at DOJ. Her number is 9162634886, the number that called Rob. She may have been the person he talked to, can't be sure. I gave her a rundown of the issue, and mentioned the limitations of US 27 478.30. She says that the person who gave him his information was only addressing California law, which makes sense (but her advice should certainly have included a disclaimer about Federal law). She thinks perhaps the response to Rob only considered an intrastate transfer. She seemed up on the idea of interstate familial transfer, and that the gun does not have to be on the roster. She said they like to have a statement of fact from the original owner to the FFL attesting to the familial relationship, serial number, date, etc. She was basically non committal and agreed with everything I laid out. I got the feeling that if I did not know much of this law, her advice would have been different, and probably wrong.

I forgot to ask her about the shipping vs. face to face thing. We know that an interstate transfer has to be done via a FFL regardless of the means of delivering the gun. How about intrastate? Certainly a father can hand the son a gun, the son sends in the $19 and paperwork, and it is done. Can't the father also ship the gun from the Bay Area, for instance, to the son in San Diego, and get the job done as well, without going through a FFL? It seems this is another bit of misinformation.
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Old 03-09-2011, 2:09 PM
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Were can I find out that the 1 every 30 does not apply? The transfer involves multiple handguns and this would be most helpful. Every FFL I talked to (4+) are under the impression that it would be 1 every 30.

Thanks for all the input
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Old 03-09-2011, 2:17 PM
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My first thought would be that the father could not ship a firearm to a son, but in looking the the FAQ for the BATF:

Quote:
Q: May a nonlicensee ship a firearm by common or contract carrier?

A nonlicensee may ship a firearm by a common or contract carrier to a resident of his or her own State or to a licensee in any State. A common or contract carrier must be used to ship a handgun. In addition, Federal law requires that the carrier be notified that the shipment contains a firearm and prohibits common or contract carriers from requiring or causing any label to be placed on any package indicating that it contains a firearm.

[18 U.S.C. 922(a)(2)(A), 922(a) (3), 922(a)(5) and 922(e), 27 CFR 478.31 and 478.30]
Then I looked at the shipping requirements for UPS:

Quote:
Special Procedures for Shipping Firearms
Use These UPS Services for Your Firearm Shipment
UPS accepts packages containing firearms (as defined by Title 18, Chapter 44, and Title 26, Chapter 53 of the United States Code) for transportation from and between licensed importers, licensed manufacturers, licensed dealers, and licensed collectors (as defined in Title 18, Chapter 44 of the United States Code), law enforcement agencies of the United States (or of any department or agency of the United States), law enforcement agencies of any state or department agency (or political subdivision of any state), from and between persons not otherwise prohibited from shipping firearms by federal, state or local law, and when such shipment complies with all federal, state and local laws applicable to the shipper, recipient, and package.
So, it seems that it can be done. A bit surprising. There could be some law that I am missing, but in a quick check it does not seem like it is prohibited.
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Old 03-09-2011, 2:35 PM
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You could call the CA DOJ to see if the one gun per 30 days applies. In trying to follow the CA PC, I do not see an exemption. The transfer is not occurring because 12082, which is an exemption. If you were to just fill out the form, you would be exempt, but that can't be done because it is coming from out of state.

The best bet is to get a C&R FFL and CA DOJ COE, then you would be exempt.

Quote:
Is there a limit on the number of handguns that I can own or purchase?

While no limitation exists for the number of handguns that you may own,you are generally limited to purchasing no more than one handgun in any 30-day period. Handgun transactions related to law enforcement, private party transfers, returns to owners, and certain other specific circumstances are exempt from the one-handgun-per-30-day limit.

(PC section 12072(a)(9))
Quote:
12072
(9) (A) No person shall make an application to purchase more than
one pistol, revolver, or other firearm capable of being concealed
upon the person within any 30-day period.
(B) Subparagraph (A) shall not apply to any of the following:
(i) Any law enforcement agency.
(ii) Any agency duly authorized to perform law enforcement duties.
(iii) Any state or local correctional facility.
(iv) Any private security company licensed to do business in
California.
(v) Any person who is properly identified as a full-time paid
peace officer, as defined in Chapter 4.5 (commencing with Section
830) of Title 3 of Part 2, and who is authorized to, and does carry a
firearm during the course and scope of his or her employment as a
peace officer.
(vi) Any motion picture, television, or video production company
or entertainment or theatrical company whose production by its nature
involves the use of a firearm.
(vii) Any person who may, pursuant to Section 12078, claim an
exemption from the waiting period set forth in subdivision (c) of
this section.
(viii) Any transaction conducted through a licensed firearms
dealer pursuant to Section 12082.
(ix) Any person who is licensed as a collector pursuant to Chapter
44 (commencing with Section 921) of Title 18 of the United States
Code and the regulations issued pursuant thereto and who has a
current certificate of eligibility issued to him or her by the
Department of Justice pursuant to Section 12071.
(x) The exchange of a pistol, revolver, or other firearm capable
of being concealed upon the person where the dealer purchased that
firearm from the person seeking the exchange within the 30-day period
immediately preceding the date of exchange or replacement.
(xi) The replacement of a pistol, revolver, or other firearm
capable of being concealed upon the person when the person's pistol,
revolver, or other firearm capable of being concealed upon the person
was lost or stolen, and the person reported that firearm lost or
stolen prior to the completion of the application to purchase to any
local law enforcement agency of the city, county, or city and county
in which he or she resides.
(xii) The return of any pistol, revolver, or other firearm capable
of being concealed upon the person to its owner.
Quote:
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.
(3) As used in this subdivision, "immediate family member" means
any one of the following relationships:
(A) Parent and child.
(B) Grandparent and grandchild.
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Old 03-09-2011, 2:40 PM
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Quote:
Originally Posted by kemasa View Post
My first thought would be that the father could not ship a firearm to a son, but in looking the the FAQ for the BATF:



Then I looked at the shipping requirements for UPS:



So, it seems that it can be done. A bit surprising. There could be some law that I am missing, but in a quick check it does not seem like it is prohibited.
That is the way I read it too. The DOJ person's advice about face to face vs. shipping was totally unfounded, interstate OR intrastate.
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Old 03-09-2011, 3:02 PM
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Too bad there isn't an option to pay your DOJ OpLaw fees at an FFL. That would satisfy the feds.
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Old 03-09-2011, 3:22 PM
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Any suggestions for FFLs in the Bay Area familiar with how to do intrafamily out of state?
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Old 03-09-2011, 4:02 PM
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Quote:
Originally Posted by robnbritt View Post
That is what I thought also. When I asked she stated that there was no prohibition becusea it would be a gift not a sale.

Makes you wonder as to the accuracy of DOJ's legal "advice"
It is still a "transfer" of a firearm. Gift/Sale are irrelevant.
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Old 03-09-2011, 4:12 PM
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Quote:
Originally Posted by luvtolean View Post
Any suggestions for FFLs in the Bay Area familiar with how to do intrafamily out of state?
I did one at City Arms a few years back, best to call them first and find exactly what they want for "this is my gun and this is my son and I'm giving it to him". IIRC mine was Mom's name & address on dated latter with complete description of the gun and a copy of her DL.

Just avoid the "note from Epstein's mother" approach and you should be fine, but check the gun store first.
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Old 03-09-2011, 6:44 PM
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Quote:
Originally Posted by robnbritt View Post
Makes you wonder as to the accuracy of DOJ's legal "advice"
CA DOJ only cares about you being in compliance with CA state laws.
CA DOJ does not care about complying with Federal laws.

Anything they instruct you will be to be in compliance with CA state laws.
What they tell can be legal under CA state laws, but can also violate Federal laws.

CA DOJ only cares about the CA state laws and not the Federal laws.
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