Reserve Officers being denied "Off Roster" pistol transactions
 

Hi folks,

I've been away for a while. Work has been work and the forum, as a whole, has changed vibes a bit, so I haven't had the desire to participate. I felt that it was appropriate to come out of the shadows to let ya'll know about this situation.

I have confirmed of 3 cases where Reserve Officers were denied off-roster, new acquisitions by different FFLs in my area. The FFLs are citing that their "DOJ Inspector" (could be BOF Crime Analyst I or II on the phone) stated that ROs are "not full-time, 24/7 and cannot purchase off-roster..." I called BS on this to one FFL, and their reply was "they were following orders from their head office." PC 32000 is very clear, and FT status has nothing to do with this type of transaction. Further more, all 3 ROs fall under the original PC 32000 under City and SO. All are Level 1, one was a "designated" Level 1 but that's irrelevant since all levels are covered under the statute.

Did I miss a bulletin while I was away, or is this more BOF shenanigans? Has anyone else or do you know of anyone else who's experienced this? If not, and if you are an RO were you able to recently complete a transaction?

Disclaimer: Not my transactions but guys I know. I ran into one of them at the FFL that denied him and he told me about it.

EDIT: I'll add that according to him the FFL also tried to submit the exempt handgun DROS (not Peace Officer exempt handgun AKA agency letter transaction) but DOJ denied. He had the FFL submit his creds to BOF but was still denied the transaction. I am not 100% on this and need to speak with him again to clarify this part but be aware of the possibility.

Thanks

More BOF/DOJ shenanigans. Making stuff up without the support of the PC.

This issue seems to surface every coupe of years.

Unfortunately, the DOJ position is largely defensible. Here's how it goes.

1) To be able to purchase an off-roster handgun, the buyer must be a "sworn member" of the listed agencies (which includes police departments and sheriff's offices)

2) Although not clearly stated in statute, the context of "sworn" is synonymous with "peace officer" in the case of police officers and deputy sheriffs.

3) Reserve officers appointed under Penal Code section 830.6 are only peace officers when on duty. They are not peace officers at other times.

4) The statutes do not clearly define the point in time when a "purchase" occurs. In the absence of any such definition, the sale could reasonably be considered to include the time from the DROS being filled out and until the weapon is physically transferred to the buyer.

5) If a reserve officer, appointed under PC 830.6 were to be "on-duty" at the time of the purchase, and remained on duty for the next 240 hours. then it may be possible for them to make the purchase, but I know of no agency that would allow an officer to remain "on duty" for that long (my record is 38 hours).

There are many viable arguments that could be made to the contrary (I'm sure we'll see some made in this thread). But so long as the DOJ has a viable argument, they get to proceed. Case law gives deference to the agency.

Please note that the above analysis only applies to reserve officers appointed under PC 830.6.

It is possible for reserve officers and deputies to be appointed under sections 830.1 and 830.2 if they meet POST training requirements. Such officers and deputies are commonly referred to as "Level 1 (Designated)" using POST terminology. Such officers and deputies are "peace officers" at all times.

Proforce is one of the strictest FFL out there. However, they have no problems selling off rosters to Reserves officers/deputies but reserves are limited to 1 and 30 on new handguns. One guy at my work is a LAPD reserve officer (level II) and he told me he just purchased a new Staccato.

Thanks Rick (as always) for the thoughtful, wise analysis!

Another issue is say 830.6 with 03FFL and CoE...more than 1 off roster handguns in 30 or not?

After many discussions with Proforce, they reached out to DoJ and came back with 1 off roster and any on-roster handgun within a 30 day period is OK.

I have been denied by DoJ for more than 1 handgun in 30 with a current 03FFL and CoE.

I think one of the biggest issues/concerns by the DoJ is the sales of off roster handguns by LE...which hopefully and eventually will get tossed by the 9th circuit courts as a result of Bruen.

ETA - another LE firearms store (remaining unnamed) has denied more than 1 in 30 for a 830.1 reserve...I rationalize this by the credo ATF gives FFLs that they can do what ever they think is correct in their opinion so not to have the ire of DoJ and ATF.

Yea, not concerned with the 1-30. That's already understood.

In DES, there are new transaction types specifically for Peace Officer PPTs now. It's pretty ridiculous. The onus is still on the FFL to confirm the status of the pistol or how it was acquired by the seller. I really doubt BOF has the manpower to check this. They can't even complete COEs in under 60 days.

OK, well it seems like this was a rouge BOF staffer or FFLs doing FFL things. I'll be sure to report back when I find out more.

On the 1 in 30 question for a FFL03 and COE holder, I'll have to defer to forum members more knowlegable than I on the point. I've never had to deal with that issue.

As to a reserve appointed under PC 830.1, there should be no issue with the 1 in 30. There is no legal distinction between a PC 830.1 or PC 830.2 appointed reserve and any other officer appointed under those sections.

Thank you Rick for the great input and analysis! I always click on any thread where I see you've posted to read your insight!

As already mentioned, this comes up from time to time. These days, it is usually from FFL's that don't deal with LE transactions regularly.

I recall that about 10-12 years ago, DOJ put out blanket "NO" memos of off-roster and large-cap mag sales to RO's. I believe the CRPOA did some work to get DOJ to change their interpretation and updated memos were sent to FFL's allowing for certain RO's to purchase off-roster guns and mags. DOJ then acknowledged that a reserve peace officer is a “sworn peace officer.” A reserve is still a sworn member of the agency while off duty without peace officer powers.

The CRPOA may want to know about this or be able to help so please ask them to consider contacting them.

Per 830.1 Designated Level 1 is 24/7 full power on/ off duty...

I wonder how long the kommiefornia roster would stand if there were no exceptions/exemptions for anyone.

:shrug:

The PC section for off-roster exemption does not differentiate between the different reserve levels or full-time paid peace officers.

PC 32000 (b)(4): The sale or purchase of a handgun, if the handgun is sold to, or purchased by, the Department of Justice, a police department, a sheriff’s official, a marshal’s office, the Department of Corrections and Rehabilitation, the Department of the California Highway Patrol, any district attorney’s office, any federal law enforcement agency, or the military or naval forces of this state or of the United States for use in the discharge of their official duties. This section does not prohibit the sale to, or purchase by, sworn members of these agencies of a handgun.

You are quite correct that the Penal Code makes no distinction between full-time peace officers and those who serve less than full time and/or those who volunteer their services.

But that is not the issue involved in this discussion.

They key issue here, is that reserve officers appointed under PC 830.6 are not peace officers when off-duty and therefore fall outside of the purview of PC 32000 when off duty. And that puts us squarely back at the issue in my previous posting where the reserve officer would conceivably need to remain "on-duty" for more than 240 hours in order to complete a purchase as a "sworn officer". (Please keep in mind that I'm using the terms "sworn officer" and "peace officer" as synonyms. That is context in which they are used and the Penal Code does not define "sworn" differently. I'd be pleased to see any case law holding differently. I have no case cites on the point).

PC 32000 does, in fact, distinguish between reserve levels. The distinction is that a reserve officer appointed under PC 830.1 remains a peace officer at all times and can therefore avail themselves of a PC 32000-exempt purchase regardless of their being "on-duty" or not. Under the DOJ position, a reserve officer appointed under PC 830.6 must be "on-duty" in order to fall under the PC 32000 exemption.

The root problem here is that you're trying to treat an PC 830.6 appointed reserve officer as being a "sworn" officer at all times.

I dug up some notes from the past where DOJ has acknowledged that "A person who is properly identified as a reserve peace officer is a "sworn peace officer.""

I looked over PC 32000 and don't see reference to the RO levels.

In PC 830, "Any person who comes within the provisions of this chapter and who otherwise meets all standards imposed by law on a peace officer is a peace officer..." Although an 830.6 RO's authority changes while off-duty, the RO is still a peace officer.

In PC 32000(b)(4), the wording used is "sworn member." As such, the RO is still a member of the agency while off-duty, not "un-sworn" and "sworn-in" for each assignment/tour/shift.

Although an 830.6 reserve does not have peace officer powers off-duty, the person is still a "sworn peace officer" of the agency. You are focusing in on "sworn" as having 24/7 peace officer powers. The title or the appointment doesn't change when off-duty, just the authority.

You're making good arguments here.

But good arguments alone don't win the discussion. Can you cite to any published court decisions that have agreed with your argument(s)?

The point remains that DOJ appears to view the issue differently, and until the issue is settled with a published decision, the DOJ gets to proceed with their read of the law.

Good discussion with you indeed!

No published court decisions that I am aware of.

Only thing I found in the archives was a DOJ memo to FFL's clarifying the exemption for reserves to buy large capacity mags. This is where they acknowledged the "sworn peace officer" status.

If DOJ's position has recently changed recently, it should be brought into CRPOA's radar.

This sworn vs peace officer on duty issue was resolved with case law for limited peace officers like probation officers. See California attorney generals decision 89-505. DPO only have peace officer authority on duty, but based on case law, remain a peace officer 24 hours a day.
Opinion No. 89-505 - California Department of Justice https://oag.ca.gov/system/files/opin...dfs/89-505.pdf

Mike,

Good research, and a good addition to the discussion, but please give the AG Opinion that you cited a closer read. I don't think that it says what you think that it says.

The opinion addresses limited duty peace officers appointed under Penal Code section 830.5. The limitations imposed on the exercise of peace officer powers under section 830.5 are to scope of duties performed in support of their employer. Section 830.5 contains no language limiting the exercise of peace officer powers to an "on duty" status.

You seem to be considering "limited duty" as being the same for the PC 830.5 officers discussed in the opinion and for PC 830.6 officers. I don't think that is the case.

There are bills in the legislature that seek to do just that at this time. Only the end of session squeeze will see if they make it through.

One bill will restrict "non-safe gun sales" to agencies ONLY.

Hello, I just have a follow up question. I am a Reserve working for a Bay Area department and appointed under 830.1. I am looking to purchase a non-roster gun and visited a couple of different gun shops. I was told that any officer that wanted to purchase a non-roster gun for either on duty or off-duty use needed a letter from their chief. This is the first I heard of it and wanted to see if anyone else had heard the same.
Do you think this is a new law that just went into effect?

AFAIK The letter from the chief/ head of department is to waive the 10-day wait for background check.

I'm not aware of any such recent change in the statutes, or in the CCR's.

Penal Code section 26950 requires you to submit a letter from your agency head in order to waive the 10 day waiting period. That's been the law for some time now.

Penal Code section 32000(b)(6) requires that you be a sworn member of a listed agency in order to purchase an "off-roster" handgun. Unlike section 26950, there is no requirement imposed for the agency letter.

As a PC 830.1 appointee, you have peace officer powers 24/7 and the "on-duty" issues applying to a PC 830.6(a)(1) appointee do not apply in your case.

If your gun shop is trying to impose such a requirement on you, I'd ask them to cite the source of the requirement, or find a more knowledgeable shop to deal with.

The AG's site has the following:

https://oag.ca.gov/firearms/exemptpo

It appears silent on non-roster regarding reserves. It does say the 10-day wait exemption is only for "full-time paid peace officer".