Familial transfer question

[BONECUTR]

I've done a ton of research on this and I have to disagree with your comment. It took me a long time to get to that point, but I now feel strongly based on an CA attorney who specializes in this and my direct communication with CA BOF. Federally, the ATF has issues around interstate when it's a commercial transaction. The non compliant firearm is not the issue when completing an intrafamily transfer from an out of state (non CA) qualified family member. Obviously, the firearm must meet non assault weapon rules (mag capacity and non threaded barrel) but does not need to be on the CA roster, in 99% of the cases it won't be on the CA roster. The out of state donor can transport into CA (following all rules for transportation) a handgun, gift to their qualified family member without the involvement of an FFL, and that family member can fill out the BOF 4544A or CFARS process. I can't wait to hear the responses I get to this post lol

My response to this is:
Will this Attorney put their money where their mouth is?
Will they put this in writing and cite all relevant exemptions that will allow this?
Will they offer to defend anyone charged with a crime for doing this?

Direct communication with CADOJ BOF means nothing. They have put illegal advice in writing on many occasion and had to back track.
I can email them the same questions 3 times and get 3 different responses.

The two biggest CA Gun Lawyers I know of have both said the CADOJ giving people advice on just submitting those form are not following Federal Law.

 

[1911-CV]

Difficult to see how an attorney could avoid 1968 Gun Control act requirements for use of an FFL when transferring firearms between persons who are residents of different states. "Gifts" are included in the prohibited list. Actual Law

(5) for any person (other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector) to transfer, sell, trade, give, transport, or deliver any firearm to any person (other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector) who the transferor knows or has reasonable cause to believe does not reside in (or if the person is a corporation or other business entity, does not maintain a place of business in) the State in which the transferor resides; except that this paragraph shall not apply to (A) the transfer, transportation, or delivery of a firearm made to carry out a bequest of a firearm to, or an acquisition by intestate succession of a firearm by, a person who is permitted to acquire or possess a firearm under the laws of the State of his residence, and (B) the loan or rental of a firearm to any person for temporary use for lawful sporting purposes;

 

[squirrelnuts]

If my son gifts me a non-CA compliant, I assume that in order to make it completely CA legit, he would would have to send it to my FFL here in CA and do the transfer? With the declaration that it's a gift from son to father...I can't just go to NE and PPT it there, correct?

Call Reed's indoor range and ask for remington, Alex or Rizzi they should be able to guide you.

 

[treelogger]

I've done a ton of research on this and I have to disagree with your comment. It took me a long time to get to that point, but I now feel strongly based on an CA attorney who specializes in this and my direct communication with CA BOF. Federally, the ATF has issues around interstate when it's a commercial transaction. The non compliant firearm is not the issue when completing an intrafamily transfer from an out of state (non CA) qualified family member. Obviously, the firearm must meet non assault weapon rules (mag capacity and non threaded barrel) but does not need to be on the CA roster, in 99% of the cases it won't be on the CA roster. The out of state donor can transport into CA (following all rules for transportation) a handgun, gift to their qualified family member without the involvement of an FFL, and that family member can fill out the BOF 4544A or CFARS process. I can't wait to hear the responses I get to this post lol

I don't think so. That's interstate transfer of a firearm by gift, and has to go through an FFL. Please explain exactly which exception in federal law you would be using here.

The important thing to note: The donor is NOT a California resident.

 

[kemasa]

Wow, a lot of bad information here.

There are exemptions for the transfer of a handgun for the certified list, one of which is an intrafamilial transfer. There is NO exemption with regards to long guns, especially if it is considered a so-called a-salt weapon.

For it to be an intrafamilial transfer between family members, that means it is being transferred between one family member and another. That means that they have to own it, not just pay for it. It isn't an intrafamilial gift exemption. That means it is required that the firearm has been transferred to them before it can be transferred to the other family member. Don't try to play word games, it won't work out well for you.

There is NO law which requires the shipment of a firearm through a shipping FFL. Common carrier policies do cause an issue, as well as USPS law which is very limited as to who can ship a handgun USPS. It is often cheaper to ship a handgun through a FFL since USPS is a lot cheaper, no next day air policy requirements, nor other absurd policies, just the law.

With limited exceptions, a firearm can NOT be transferred between residents of different states without going through a FFL in the state of residence of the person receiving the firearm. This means that the form nor CFARS can be used to receive a firearm from an out of state family member. It should be noted that the CA DOJ has often given bogus legal advice stating that it could be done that way, ignoring federal law. They have been informed of this numerous times. Bad information from the CA DOJ will likely not be protection against federal charges.

Just because a FFL has gotten away with doing illegal things doesn't somehow make it legal. Having a family member pay for the firearm and never having owned it doesn't qualify as an intrafamilial transfer and if/when it gets noticed it will be rather costly, not just in terms of money. It will also cause the CA DOJ to look into everything quite closely, so the number of charges might not be small.

While this isn't a public forum, it is quite possible that there are those in the government watching what is said here, so it is a really bad idea to point out illegal activity unless you want someone to go out of business and/or jail.

 

[kemasa]

If my son gifts me a non-CA compliant, I assume that in order to make it completely CA legit, he would would have to send it to my FFL here in CA and do the transfer? With the declaration that it's a gift from son to father...I can't just go to NE and PPT it there, correct?

What EXACTLY do you mean?

I suspect you are asking about an off roster handgun. A CA non-compliant long gun is not legal period, no family exemption.

No, federal law prohibits you as a CA resident from acquiring firearms from out of state with limited exceptions, such as having a C&R FFL or an inheritance where you are specifically named.

 

[kemasa]

Get a cfars account.

A CFARS account is completely useless in regards to a transfer of a firearm from out of state with the limited exception of things like acquiring a C&R firearm from out of state when you have a C&R FFL and CA DOJ COE.

 

[kemasa]

Are you familiar if the out of state member have to physically buy it in store or can they buy it online retailer with there cc info send to ca FFL and email or ship there gift letter with ID?

There is only an intrafamilial transfer exemption, no intrafamilial gift exemptions.

 

[kemasa]

I been trying to find that part in the law or statute but can't find it where they have to take possession of it first

The law talks about the transfer of a firearm from one family member to another. If the family member never owned it, then it isn't a transfer from that person, is it?

 

[kemasa]

I mean, wouldn't common sense dictate that they'd have to take possession in order to IFT? Otherwise, wouldn't it just be a "straw purchase"? (Take it easy on me; I'm still learning all this myself. This is just my understanding).

In order to be transferred from one family member to another, yes, it means that they had possession of it. Their buying a firearm as a gift isn't a straw purchase. A person could pay your FFL for a firearm and then it could be transferred to you. They could also buy the firearm intending to give it as a gift to you, which in CA still requires the transfer to you to go through a FFL.

It can get complicated as to what a straw purchase is or isn't. For example, if you saw a firearm that you knew someone really wanted, you could buy it with the intention to sell it to them as long as you don't ask them about it in advance. If you ask them about it, it is a straw purchase. If you buy a firearm and the other person is paying you for the firearm, arranged in advance, it is a straw purchase. It doesn't matter if all transfers go through a dealer. A straw purchase doesn't require the person who ends up with the firearm to be prohibited. For example, if a dealer sees a gun in inventory of another dealer who refuses to sell it to the dealer directly, it would be a straw purchase for the dealer to have another person buy it for them in order to have it transferred to the dealer.

 

[kemasa]

I thought you just had to download BOF 4544A from CA DOJ website, fill out and mail in, pay the small fee. There is some definitions and rules printed on the document. You may want to contact an FFL for a legal questions. I don't know exactly how it works for out of state transfers. I had to do some transfers between spouse for CCW requiring that said CCW firearm be registered to CCW applicant.

Federal law prohibits the transfer of a firearm between residents of different states unless the firearm goes to a FFL in the state of residence of the person receiving it.

 

[kemasa]

Well I believe the law says it's a straw purchase if your buying for someone knowingly they are prohibited from buying firearms but giving the gift letter is saying your gifting it

The law says it is a straw purchase, actually making a false statement on a federal form, if you are buying it for another person, not as a gift. They don't need to be prohibited in order for it to be illegal.

 

[kemasa]

I can't speak for what other dealers do but IMHO for me to transfer it as a exempt gift it must be owned by the person gifting it. Buying online does not mean you own it. Taking possession does..

There is no gift exemption. The exemption is for a transfer of a firearm between limited family members, which means that the person giving it must have had it transferred to them since otherwise it isn't a transfer from them.

 

[Constitutional Armory]

In order to be transferred from one family member to another, yes, it means that they had possession of it. Their buying a firearm as a gift isn't a straw purchase. A person could pay your FFL for a firearm and then it could be transferred to you. They could also buy the firearm intending to give it as a gift to you, which in CA still requires the transfer to you to go through a FFL.

It can get complicated as to what a straw purchase is or isn't. For example, if you saw a firearm that you knew someone really wanted, you could buy it with the intention to sell it to them as long as you don't ask them about it in advance. If you ask them about it, it is a straw purchase. If you buy a firearm and the other person is paying you for the firearm, arranged in advance, it is a straw purchase. It doesn't matter if all transfers go through a dealer. A straw purchase doesn't require the person who ends up with the firearm to be prohibited. For example, if a dealer sees a gun in inventory of another dealer who refuses to sell it to the dealer directly, it would be a straw purchase for the dealer to have another person buy it for them in order to have it transferred to the dealer.

Well abramski v US shows exactly what a straw purchase is why the 4473 form changed right? It's intent so paper trail is what matters I would think who bought it with what funds from who's money and the law says no money is exchanged is that's considered a gift

 

[1911-CV]

Federal law prohibits the transfer of a firearm between residents of different states unless the firearm goes to a FFL in the state of residence of the person receiving it.

As I understand the 1968 federal Gun Control act, handgun transfers between residents of different states must go through an FFL in the state of the receiving party but long guns may go through an FFL of the seller's state so long as the parties are present and the long gun is legal in both states. 922(b)(3).

(A) shall not apply to the sale or delivery of any rifle or shotgun to a resident of a State other than a State in which the licensee’s place of business is located if the transferee meets in person with the transferor to accomplish the transfer, and the sale, delivery, and receipt fully comply with the legal conditions of sale in both such States

[edit]... which doesn't help you with California's requirements, but it seems you are ok with the feds.

 

[kemasa]

Well abramski v US shows exactly what a straw purchase is why the 4473 form changed right? It's intent so paper trail is what matters I would think who bought it with what funds from who's money and the law says no money is exchanged is that's considered a gift

That case showed that the paper trail DOESN'T matter. It stated that it was illegal because the nephew wasn't the actual buyer even though ALL transfers went through a dealer. The person is the actual buyer if they are getting it as a gift for someone, or if the person is getting it as a gift from someone. The question is this case add the exemption for the certified list, which is a different issue.

 

[kemasa]

upski, it actually can. In this specific case it is useless, but in other cases it could be.

 

[kemasa]

No way to enforce it if true

Really? It can be shown that the firearm never belonged to the family member, which means that the intrafamilial exemption doesn't apply. There is paperwork in regards to firearms which can prove a lot.

 

[kemasa]

I'm sure there are some who feel differently and I'm just giving my opinion.
When someone comes in and buys a firearm it is not thiers to gift until they own it. Paying for something does not make it yours. Possession of it does. IMO

This is 100% correct. The exemption is for a transfer from one family member to another, it isn't a gift exemption. So if they never owned it, it isn't a transfer from them, so it doesn't qualify. I would say that it isn't just an opinion, it is the law. Some people don't want to read the law correctly and try to play word games.

 

[kemasa]

So to my interpretation and I'm not a lawyer but law doesn't say have to take possession it says that it's able to be gifted the statute reads

"Section 27545 does not apply to the transfer of a handgun by gift, bequest, intestate succession, or other means from one individual to another, if all of the following requirements are met..."

By other means is broad and can be to the how it's gifted which doesn't imply that it needs to be in possession first

But the word "transfer" does. How does one transfer a firearm from one family member to another if they never actually owned it? You are ignoring that very important word and instead trying to focus on just the word gift.