Monder Law Group - News
California Officers Allegedly Reselling Illegal Guns in Southern California
The head of ATF department in Los Angeles sent memos to police chiefs and Sheriffs that Police Officers are buying and illegally reselling guns. California Police Officers are allowed to buy certain firearms that are not obtainable by the general public. However, the ATF is claiming that officers are buying hundreds of guns and then reselling them to the public who cannot legally own the gun. As most are aware, California is very strict on gun laws and who owns them, and what kind. The ATF also alleges that the officers are “Straw Purchasing.” This means that they bought the gun with the direct intent to resell it as soon as it came into possession for an inflated price. In addition, some of these firearms are being found at crime scenes. Which suggest they are now being sold. An interesting statistic by the ATF is that it takes on average 10 years from when the gun was bought legally to when it would be found in a criminal investigation. When a firearm is found quicker than that it hints at the possibility of straw purchasing. It was not stated how quickly the guns were found in police investigations though. In 2015, a former Sheriff’s Deputy in sacrament was found guilty of reselling 25 guns illegally and received 18 months in prison. Thus, there is an ongoing investigation through police departments throughout the state concerning firearm sells.
There are Federal laws that are applicable to the accusations by the ATF, however, we will look at the state laws regarding the selling of firearms. California Penal Code 26500(a) states that no person shall sell, lease, or transfer firearms without a license to do so. Even then, the transfer must be for the type of firearm authorized under the permit. In California, a firearm is defined as any device, designed to be used as a weapon, from which is expelled through a barrel, a projectile, by the force of any explosion or other form of combustion. California Penal Code 16520(a). Moreover, this includes all types of firearms including pistols, revolvers, rifles, shotguns, and assault rifles. In regard to the rule, it plainly states that “no one shall sell, lease, or transfer firearms without a license to do so.” So, it would seem like a pretty simple case that the officers had acted illegally of the allegations are true because just transferring the guns would be in violation of the law. Thus, the rule seems plain and simple regarding the selling of guns.
However, like most rules, there is an exception. Peace Officers may purchase and transport “non-roster” firearms. These are guns that are illegal for the public to buy in the state of California. Police officers can buy them legally and use them for their duty. There are a lot of nuances involved when it comes to this crime because you have California requirement and the Federal Requirements regarding protocol. This is all concerning a licensed dealer to a qualified buyer. The Officers in the investigation were buying the firearms from a licensed dealer because they were being reported to the Federal government. This is known because the ATF was aware of the all the purchases by the Officers. In addition, because Police Officers have exemptions and higher authority they can buy most types of guns with zero waiting days since it is for work and they are considered professionals. This is not where the laws were broken.
The law was being broken when the Police officers resold the guns that they had previously purchased. Some states allow individuals to sell firearms out of their homes, in newspaper ads, online, and even at garage sales. These unlicensed individuals are exempt from conducting background checks of their buyers. Because of this, it is possible they can sell guns to people otherwise not allowed to possess or own firearms. California, however, requires that all transactions involving firearms even those between private parties must be completed through a licensed dealer. California Penal Code 26705. Because of the strict California law, the officers making the firearm sale would have to have a dealer or licensed individual look over the sale run the background check and administer the entire process. Thus, this is to ensure people who cannot legally own a gun are not sold one.
People Who cannot own a gun are felons that are, anyone convicted of any felony offense in any jurisdiction, does not matter the state the felony was charged in, persons who are addicted to narcotics, persons with two or more convictions under Penal Code 417, California’s law against brandishing a weapon, persons convicted of certain misdemeanor offenses, persons who suffer from mental illness, and minors that is, anyone under 18. California Penal Code 29800(a)(1), 29805, 29610. In regard to the police officers selling guns that were found at crime scenes, it can possibly be concluded that people who are not allowed to buy a gun were possibly able to. Therefore, it is possible that the guns fell into the hands of those that were not legally allowed to have them.
For further clarification, for the police officers to legally sell their firearm they would have to have a person with a license to sell firearms present. For one to be licensed to sell firearms they must have a valid federal firearms license, any regulatory or business license or licenses required by your local government, a valid seller’s permit issued by the State Board of Equalization a certificate of eligibility issued by the Department of Justice “DOJ; a local one-year license issued by the authorized licensing authority in one of the following forms: a. in the form prescribed by the California Attorney General, b. in a regulatory or business license that clearly states “Valid for retail sales of firearms” and is endorsed by the appropriate licensing agency, or c. in a letter by the appropriate licensing agency that states that the jurisdiction does not require a license to sell firearms and or does not restrict or regulate firearms sales. California Penal Code 26705. Because of the strict requirements, and all of the paperwork it is unusual for people other than dealers to be able to legally sell firearms. Furthermore, because of this rule if the police officers did not have someone with all of this paperwork the sale would not have been properly sold. Thus, it is required to have all of the proper paperwork in California to sell firearms.
The charge of illegally selling a firearm alone is a misdemeanor. The punishment is a one thousand dollar fine and up to six months in jail. It is also possible that each gun that is sold qualify as a separate count. California Penal Code 26500(b). However, there is always discretion in the punishment. As seen above the Sheriffs Deputy in Sacramento, California was sentenced to 18 months in prison when he illegally sold 25 guns. In addition, an important note from the article is that the ATF discussed the violation of Federal crimes which could possibly add on top of the state crimes or hold higher penalty depending on the police officer’s intent, and possibly the type of firearm being sold.
Therefore, the police officers do have more freedom when it comes to the overall purchasing of firearms, however, there are some exceptions when it comes to selling and the ATF has said that they will be conducting further investigations throughout the state.
If you are facing serious gun charges in San Diego, feel free to contact San Diego Criminal Lawyer Vik Monder to discuss the specifics of your case. Please visit San Diego Criminal Defense Attorney to learn more about your case or call 619-405-0063.
