Visitor selling handgun to CA resident

[Chewy65]

Definitions matter:



This IS in the CA PC.

There is also in the CA PC the requirement that regulations can be created by the CA DOJ.

Regulations can't be constructed in such a fashion as to effectively enact a law different from the one authorized. The DOJ did not need to block an out of state seller from entering into a private party transaction.

Let's take baby steps before deciding if this is an "Underground Regulation" and first ask if it is even a "regulation". Can anyone cite just where the DOJ requires the seller's CDL or ID to be swiped into the DROS software (is that what is called "DES"?) and has such requirement been adopted as a regulation filed with the Secretary of State?

No state agency shall issue, utilize, enforce, or attempt to enforce
any guideline, criterion, bulletin, manual, instruction, order,
standard of general application, or other rule, which is a
“regulation” under the APA unless it has been adopted as a
regulation and filed with the Secretary of State pursuant to the
APA. Government Code section 11340.5(a)

https://www.oal.ca.gov/wp-content/uploads/sites/28/2017/05/What_Is_a_Regulation.pdf

[kemasa]

The CA PC isn't a regulation. The CA PC requires a CA ID/DL as I quoted.

[Chewy65]

The CA PC isn't a regulation. The CA PC requires a CA ID/DL as I quoted.

Go back and read what you "cited". A "cite" is not the same as a "quote". I believe you will find that acceptable proof of identity refers to what the buyer must produce. Also PC 16400, if that is what you are talking about, merely defines what is clear evidence of identity and age, but it does not say who must provide it to do a PPT.

[Chewy65]

ENTERING PURCHASER AND SELLER INFORMATION
All DROS transaction types require the entry of purchaser information. Seller information is only
required on the following transaction types:
 Private Party Handgun Transfer
 Handgun Loan
 Private Party Long Gun Transfer
 Long Gun Loan
Purchaser and seller information will be captured by swiping the California Driver’s License or Identification card through a magnetic card swipe reader. Any missing or incorrect information
will be keyed directly into the appropriate fields.

Okay, this part of the DES instructions could mean that you must swipe the seller's California cards through a card swipe reader but the same language suggests that you may be able to do a manual entry. Has anyone with a CAFFL ever asked DOJ how they can process a ppt from an out of state resident who had neither a CDL or Identity Card?

[Chewy65]

Look at Penal Code Section 28060. It provides that the AG is to adopt regs to do certain things. The AG then goes and requires the use of a DROS Entry System that amounts to a regulation depriving a resident from doing a PPT with a non-resident. Had the Legislature wished to do so, it could have passed such a law but it did not.

The Attorney General shall adopt regulations under this chapter to do all of the following:
(a) Allow the seller or transferor or the person loaning the firearm, and the purchaser or transferee or the person being loaned the firearm, to complete a sale, loan, or transfer through a dealer, and to allow those persons and the dealer to preserve the confidentiality of those records and to comply with the requirements of this chapter and all of the following:
(1) Article 1 (commencing with Section 26700) and Article 2 (commencing with Section 26800) of Chapter 2.
(2) Article 1 (commencing with Section 27500) of Chapter 4.
(3) Article 2 (commencing with Section 28150) of Chapter 6.
(4) Article 3 (commencing with Section 28200) of Chapter 6.
(b) Record sufficient information for purposes of Section 11106 in the instance where a firearm is returned to a personal firearm importer because a sale or transfer of that firearm by the personal firearm importer could not be completed.
(c) Ensure that the register or record of electronic transfer shall state all of the following:
(1) The name and address of the seller or transferor of the firearm or the person loaning the firearm.
(2) Whether or not the person is a personal firearm importer.
(3) Any other information required by Article 2 (commencing with Section 28150) of Chapter 6.
(Amended by Stats. 2011, Ch. 745, Sec. 47. (AB 809) Effective January 1, 2012.)

[kemasa]

Did you read the CA PC section I posted? It states what is defined as proof of identity which means a CA ID/DL. It isn't limited in reference.

You are not clearly reading it correctly. When it says in other sections that the person has to provide proof of identity, it means that you can replace that with CA ID/DL and that alone. That is what the law says.

[Chewy65]

Did you read the CA PC section I posted? It states what is defined as proof of identity which means a CA ID/DL. It isn't limited in reference.

You are not clearly reading it correctly. When it says in other sections that the person has to provide proof of identity, it means that you can replace that with CA ID/DL and that alone. That is what the law says.

Yes I read it. Go back and find where the PC says you must provide proof of identity. You will see that it is only required of the buyer. For instance, see PC 26815(c)

26815. No firearm shall be delivered . . . (c) Unless the purchaser, transferee, or person being loaned the firearm presents clear evidence of the person’s identity and age to the dealer.

If the Legislature wanted to require the seller, transferor, or person making the loan of the firearm to present clear evidence of the person's identity and age to the dealer, the Legislature would have said so. It did not, which suggest that it did not intend the same. Also, it is well established that an unambiguous statute is to be construed according to its plain language. I believe there is an exception for when that plain language would lead to an absurdity, which here is not the case. While an agency tasked with enforcing a statute and adopting regulations for its enforcement has broad discretion in interpreting a statute, I do not believe that here the DOJ has the right to read into PC 26815 the requirement that the seller must also produce "clear evidence of the person's identity and age".

[taperxz]

Yes I read it. Go back and find where the PC says you must provide proof of identity. You will see that it is only required of the buyer. For instance, see PC 26815(c)



If the Legislature wanted to require the seller, transferor, or person making the loan of the firearm to present clear evidence of the person's identity and age to the dealer, the Legislature would have said so. It did not, which suggest that it did not intend the same. Also, it is well established that an unambiguous statute is to be construed according to its plain language. I believe there is an exception for when that plain language would lead to an absurdity, which here is not the case. While an agency tasked with enforcing a statute and adopting regulations for its enforcement has broad discretion in interpreting a statute, I do not believe that here the DOJ has the right to read into PC 26815 the requirement that the seller must also produce "clear evidence of the person's identity and age".

The ATF does in order for an FFL to put it in their A&D book

[kemasa]

Yes I read it. Go back and find where the PC says you must provide proof of identity. You will see that it is only required of the buyer. For instance, see PC 26815(c)



If the Legislature wanted to require the seller, transferor, or person making the loan of the firearm to present clear evidence of the person's identity and age to the dealer, the Legislature would have said so. It did not, which suggest that it did not intend the same. Also, it is well established that an unambiguous statute is to be construed according to its plain language. I believe there is an exception for when that plain language would lead to an absurdity, which here is not the case. While an agency tasked with enforcing a statute and adopting regulations for its enforcement has broad discretion in interpreting a statute, I do not believe that here the DOJ has the right to read into PC 26815 the requirement that the seller must also produce "clear evidence of the person's identity and age".

So you think that for a CA PPT that the seller is not required to provide ANY identification? That would make it quite hard to be able to return it to the seller if the buyer is denied.

[taperxz]

So you think that for a CA PPT that the seller is not required to provide ANY identification? That would make it quite hard to be able to return it to the seller if the buyer is denied.

It would also be problematic with ATF since you are holding the gun in your store for 240 hours minimum.

[taperxz]

To add, even if you could get around this, the state doesn’t allow someone to import and expose for sale non rostered handguns unless you are exempted from this law. Thinking you can get an off roster handgun with your arguments will result in more road blocks