Exempt Law Enforcement Firearm and Ammunition Sales

LAW ENFORCEMENT INFORMATION BULLETIN:

EXEMPT LAW ENFORCEMENT FIREARM AND AMMUNITION SALES

What Law Enforcement Agencies, Officers, and Licensed Firearm Dealers Need to Know

NOVEMBER 3, 2020

Both California and federal firearm laws provide a means for law enforcement officers and California licensed firearm dealers to engage in certain sales that would otherwise be prohibited. These exceptions can be for types of firearms and firearm-related equipment, such as handguns not listed on the California Department of Justice’s (“DOJ”) roster of handguns certified for sale, so-called “assault weapons,” and “large-capacity” magazines. Other exceptions also provided for specific transaction requirements, such as the background check, 10-day waiting period, and one handgun per 30-day restrictions.

Each of these exceptions have specific requirements and procedures that must be satisfied to be considered valid. The following information has been prepared to better assist California law enforcement and licensed firearm dealers in processing such transactions and has been updated to reflect the changes made following the adoption of Assembly Bill No. 2699 as applied to California’s handgun roster.

I. STATE AND FEDERAL BACKGROUND CHECKS

Both state and federal law generally require individuals purchasing a firearm to undergo a background check prior to taking delivery of the firearm from a licensed dealer. (Footnote 1) To satisfy this requirement under Federal law, a prospective purchaser must complete a “Firearm Transaction Record,” more commonly known as the “4473 form.” (Footnote 2) Unlike most states, however, California is a “point of contact” state, meaning the California Department of Justice is required to process all firearm background checks on behalf of California licensed firearm dealers. (Footnote 3) Thus, although a prospective purchaser must still complete the 4473 form, the contents of this form are not used to conduct the required background check.

Instead, DOJ processes background checks for prospective firearm purchasers beginning with the Dealer Record of Sale (“DROS”) Entry System (“DES”). (See Footnote 4) Using this system, California licensed firearm dealers collect a prospective purchaser’s information which it then submits electronically to DOJ. Upon submission, DOJ is required to then examine State and federal records to determine if the purchaser is prohibited from owning or possessing firearms. (See Footnote 5) DOJ will then notify the California licensed firearm dealer of the result. (See Footnote 6)

A. Federal Background Check Exceptions for Law Enforcement

For purposes of transactions with law enforcement agencies, firearms sold or shipped to the United States or any department or agency thereof, or any State or any department, agency, or political subdivision thereof, are exempt from the requirements of the federal Gun Control Act. (See Footnote 7) In other words, licensed firearm dealers need not complete a 4473 form when transferring any firearm to a law enforcement agency. (See Footnote 8) As applied to transactions with law enforcement officers in their individual capacity, no 4473 form or federal background check is needed, provided certain requirements are met. (See Footnote 9)

For an individual law enforcement officer to meet the exception, they must be purchasing the firearm “for official use” and provide a certification on agency letterhead, signed by a person in authority within the agency (other than the officer themselves), stating the firearm will be used “in official duties and that a records check reveals that the purchasing officer has no convictions for misdemeanor crimes of domestic violence.” (See Footnote 10) In connection with this requirement, the following individuals are considered to have sufficient authority:

  • For a city or county police department, the director of public safety or the chief or commission of police;

  • For a sheriff’s office, the sheriff;

  • For a State police or highway patrol department, the superintendent or the supervisor in charge of the office to which the State officer or employee is assigned; and,

  • For federal law enforcement officers, the supervisor in charge of the office to which the Federal officer or employee is assigned. (See Footnote 11)

If the above requirements are satisfied, the law enforcement officer will not be required to complete the 4473 form or undergo a federal background check. (See Footnote 12) However, the licensed dealer will still need to enter the disposition of the firearm into their official records and maintain the certification letter in their files. (See Footnote 13)

B. California Background Check Exceptions for Law Enforcement

Unlike federal law, California law does not provide an exception to the DROS background check requirements for sales to individual law enforcement officers by California licensed firearm dealers. Instead California law only exempts the sale, delivery or transfer of a firearm to “an authorized law enforcement representative” for the exclusive use by the agency which they represent. (See Footnote 14) In other words, the representative is acquiring the guns for the agency itself—not in a personal capacity. To meet the exception, the representative must present “written authorization from the head of the agency authorizing the transaction.” (See Footnote 15) This “written authorization” is defined as “verifiable written certification from the head of the agency by which the purchaser or transferee is employed” that:

  • Identifies the employee as an individual authorized to conduct the transaction; and,

  • Authorizes the transaction for the exclusive use of the agency by which that person is employed. (See Footnote 16)

Within 10 days of receiving the firearms, the agency must then enter them into DOJ’s Automated Firearms System (“AFS”) as “institutional weapons” via the California Law Enforcement Telecommunications System (“CLETS”). (See Footnote 17)

Although California licensed firearm dealers cannot sell or transfer a firearm to a law enforcement officer in an individual capacity without processing a DROS, California law does allow the law enforcement agencies themselves to sell, deliver, or transfer a firearm to a “peace officer” employed by the State of California pursuant to Section 10334 of the Public Contract Code. (See Footnote 18) But such sales are generally limited to officers who are retiring, when the employing agency is changing its state-issued service weapon, or for sales to the spouse or domestic partner of an officer who died in the line of duty. (See Footnote 19) Otherwise, California law only allows agencies to “loan” a firearm to its officers “for the carrying and use of that firearm by that peace officer in the course and scope of the officer’s duties.” (See Footnote 20)

In sum, law enforcement officers wishing to purchase a firearm in their individual capacity must still complete a DROS when purchasing the firearm at a California licensed firearms dealer. But if the officer has written certification on agency letterhead that satisfies all the requirements under federal law, the officer will not be required to complete a 4473 form in connection with the DROS transaction.

a. “Head of Agency”

As applied to California’s DROS exception for law enforcement and other California-specific exceptions requiring authorization from the officer’s “head of agency,” DOJ has provided conflicting guidance to firearm dealers depending on the agency in question. In most cases, obtaining this authorization is not an issue for relatively small agencies such as a local police department. But for larger agencies such as the California Highway Patrol, DOJ has suggested it may be appropriate for the officer to obtain written authorization from an appropriate designee of the head of the agency. Before accepting any written authorizations from someone other than the head of the agency, however, it is advised dealers consult their DOJ Field Representative for written instruction.

II. CALIFORNIA’S 10-DAY WAITING PERIOD RESTRICTION

California licensed firearm dealers are generally prohibited from delivering a firearm to any person within 10 days of the DROS transaction being submitted to DOJ. (See Footnote 21) But the law provides an exception for the sale, delivery, or transfer of a firearm to any person who satisfies both of the following requirements:

  • The person 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 of the Penal Code; and,

  • The officer’s employer has authorized the officer to carry firearms while in the performance of their duties. (See Footnote 22)

To meet the proper identification requirements of this exception, the officer must present “verifiable written certification from the head of the agency” employing the officer that:

  • Identifies the purchaser as a peace officer who is authorized to carry firearms while in the performance of their duties; and,

  • Authorizes the purchase or transfer. (See Footnote 23)

Note that California licensed firearm dealers must still submit a DROS for the firearm and keep the certification with the DROS and any other required records for the transaction. (See Footnote 24)

III. CALIFORNIA’S 30-DAY RESTRICTION

Until July 1, 2021, California licensed firearm dealers are also prohibited from delivering a handgun to any person whenever the dealer is notified by DOJ that the person made a prior application to purchase a handgun within the preceding 30-day period. (See Footnote 25) Beginning July 1, 2021, this same restriction will also apply to semiautomatic centerfire rifles. (See Footnote 26) What’s more, California law also places this same restriction on individuals themselves who attempt to purchase more than one handgun (and beginning July 1, 2021, semiautomatic centerfire rifles). (See Footnote 27)

An exemption to the restriction on dealers is provided for the delivery of a firearm to “any of the entities or circumstances specified in subdivision (b) of Section 27535.” (See Footnote 28) This includes “[a]ny law enforcement agency” as well as “[a]ny 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 employment as a peace officer.” (See Footnote 29) Notably absent from these requirements is any “verifiable written certification” from the officer’s employing agency, as is required for the exemption to California’s 10-day waiting period restriction. This fact is further illustrated in DOJ’s DES User Guide, which states that dealers need only click on the 30-day restriction exemption check box “if the purchaser has provided proof of having a valid exemption from the one handgun purchase per 30 days restriction.” (See Footnote 30)

As a result, officers seeking an exemption to California’s 30-day restriction need only provide proof of their status as a full-time paid peace officer authorized to carry a firearm. What’s more, should the officer provide the required verifiable written certification to meet the exemption for California’s 10-day waiting period, that same certification should satisfy the requirements here.

IV. CALIFORNIA “DANGEROUS WEAPONS” AND NFA REGULATED ITEMS

California law generally prohibits the sale, transfer, importation, and possession of so-called “assault weapons,” .50 BMG rifles, machineguns, short-barreled rifles, short-barreled shotguns, and silencers. (See Footnote 31) With the exception of silencers, these firearms are sometimes referred to as “dangerous weapons” in California, the lawful sale or transfer of which requires an appropriate Dangerous Weapons License/Permit (“DWP”) issued by DOJ. (See Footnote 32)

It is estimated there are between 250-300 active DWP holders in the entire state of California, and DOJ generally refuses to release a list of current DWP holders citing “public safety” concerns. In any event, not all DWP holders can engage in sales or transfers, and among those that are able, not all can engage in transactions involving all types of so-called “dangerous weapons.”

In addition to California’s DWP requirements, the sale or transfer of firearms regulated under the National Firearms Act (“NFA”) requires that the dealer to pay a special occupational tax (“SOT”) in accordance with federal law. (See Footnote 33) NFA regulated items include shotguns with a barrel of less than 18 inches or an overall length of less than 26 inches, rifles with a barrel length of less than 16 inches or overall length of less than 26 inches, machineguns, silencers, and “any other weapon” as defined under federal law. (See Footnote 34) The transfer of any such items regulated by the NFA generally requires the completion of the appropriate ATF form and payment of a $200 transfer tax for each item that is to be paid by the transferor. (See Footnote 35)

A. Exceptions Applicable to Law Enforcement (See Footnote 36)

Federal law generally exempts the transfer of an NFA regulated item to “any State, possession of the United States, any political subdivision thereof, or any official police organization of such a government entity engaged in criminal investigations” from the $200 transfer tax requirement. (See Footnote 37) But such transfers must first be approved by the ATF in order to qualify for the exception. (See Footnote 38) This generally requires the completion and submission of an “Application for Tax Exempt Transfer and Registration of Firearm” to ATF, more commonly known as “Form 5.” (See Footnote 39) There is, however, no Federal exception for the transfer of an NFA regulated item to an individual officer. As a result, law enforcement officers wishing to acquire NFA regulated items will generally be required to pay the $200 transfer tax and complete the required “Application for Tax Paid Transfer and Registration of Firearm” form, more commonly known as “Form 4.”40 Regardless, California law imposes specific requirements on the transfer of so-called “dangerous weapons” that must be considered as discussed below.

i. “Assault Weapons” and .50 BMG Rifles

Neither so-called “assault weapons” or .50 BMG rifles are regulated under the NFA, meaning the transfers of such firearms do not require the payment of a $200 tax or the completion of a special federal form.

But, as illustrated above, California licensed firearm dealers are still required to obtain a DWP issued by DOJ in order to lawfully transfer such firearms. That said, California allows the sale or transfer of an “assault weapon” or .50 BMG rifle to the following agencies:

  • DOJ;

  • Police Departments;

  • Sheriffs’ Offices;

  • Marshals’ Offices;

  • Department of Corrections and Rehabilitation;

  • Department of the California Highway Patrol;

  • District Attorney’s Offices;

  • Department of Fish and Wildlife;

  • Department of Parks and Recreation;

  • Military or Naval Forces of California or the United States; or,

  • Any Federal Law Enforcement Agency. (See Footnote 41)

California law also allows the sale or transfer of an “assault weapon” or .50 BMG rifle to a “sworn peace officer member” of any of the agencies listed above, provided the peace officer is authorized by their employer to possess or receive the firearm. (See Footnote 42) Proper “authorization” is defined as “verifiable written certification from the head of the agency, identifying the recipient or possessor of the [firearm] as a peace officer and authorizing that person to receive or possess the specific [firearm].” (See Footnote 43)

But the requirements do not end there. All law enforcement officers who acquire an “assault weapon” or .50 BMG rifle pursuant to this exception must register the firearm with DOJ in accordance with the specified procedures set forth in Penal Code sections 30900 through 30965 within 90 days of acquisition. (See Footnote 44) These same Penal Codes were amended in 2016 following the adoption of Senate Bill No. 880 and Assembly Bill No. 1135, both of which redefined California’s definition of an “assault weapon” and mandated any registrations for such firearms “be submitted electronically via the internet utilizing a public-facing application made available by [DOJ].” (See Footnote 45) This suggests law enforcement officers must also submit “assault weapon” and .50 BMG rifle registrations through the same electronic system, but DOJ does not appear to have any such system in place at this time. (See Footnote 46)

Assuming a law enforcement officer is somehow able to register the firearm with DOJ, the registration must include a copy of the “authorization” required by the exception. (See Footnote 47)

ii. Short-Barreled Rifles and Short-Barreled Shotguns

Except for shotguns like the Taurus Judge and other “handgun type” shotguns, short-barreled rifles and short-barreled shotguns are regulated under both the NFA and California’s “dangerous weapon” restrictions. As a result, the transfer of any such firearm requires the submission of the appropriate NFA form in addition to satisfying an exception under California law.

Under California law, the sale to, purchase by, or possession of short-barreled rifles or short-barreled shotguns (as those terms are defined under California law) by the following entities is exempt from California’s restrictions on such firearms:

  • Police Departments;

  • Sheriff’s Offices;

  • Marshal’s Offices;

  • California Highway Patrol;

  • DOJ;

  • Department of Corrections and Rehabilitation; or,

  • Military or Naval Forces of California or the United States.(See Footnote 48)

.50 BMG rifles, it is presumed this was merely an oversight by California’s legislature when drafting the exception’s language.

As you can see, the list of exempt entities is limited compared to California’s “assault weapon” and .50 BMG rifle exception. Not expressly mentioned are any federal law enforcement agencies. (See Footnote 49) Regarding the application of the law to officers in their individual capacity, California law only exempts the possession of short-barreled rifles and short-barreled shotguns by “peace officer members” of the above listed entities when:

  • On duty;

  • The use is authorized by the agency and is within the course and scope of their duties; and,

  • The officer has completed a training course in the use of short-barreled rifles and/or short-barreled shotguns certified by the Commission on Peace Officer Standards and Training. (See Footnote 50)

Because the exception only allows the possession, California licensed firearm dealers with the appropriate DWP cannot lawfully sell or transfer such firearms to officers in their individual capacity. Instead, dealers may only sell or transfer short-barreled rifles and/or short-barreled shotguns to the agencies themselves, who can then presumably supply their individual officers with those firearms in accordance with the above requirements.

iii. Machineguns

Like short-barreled rifles and short-barreled shotguns, machineguns are regulated under both the NFA and California’s “dangerous weapon” restrictions, which also means any transfer of a machinegun will require the submission of the appropriate NFA form in addition to satisfying any applicable California exception. That said, California exempts the sale to, purchase by, or possession of a machinegun by the following agencies:

  • Police Departments;

  • Sheriff’s Offices;

  • Marshal’s Offices;

  • District Attorney’s Offices;

  • California Highway Patrol;

  • DOJ;

  • Department of Corrections for use by their “Special Emergency Response Teams” and “Law Enforcement Liaison/Investigations Unit”; or,

  • Military or Naval Forces of California or the United States. (See Footnote 51)

Once again, the list of exempt entities is different compared to other types of “dangerous weapons,” and in the case of the Department of Corrections is further restricted to its specialized units. And like the exception for short-barreled rifles and short-barreled shotguns, there is no mention of federal law enforcement agencies.

As for law enforcement officers in their individual capacity, California law only allows the possession of machineguns “by regular, salaried, full-time peace officer members” of the above listed entities “when on duty and if the use is within the scope of their duties.” (See Footnote 52) Which means dealers may only sell or transfer machineguns to the above listed agencies directly and not to individual law enforcement officers. But the agencies themselves can presumably supply their individual officers with machineguns in the course and scope of their duties.

iv. Silencers

As noted above, silencers are governed under the provisions of the NFA, thereby requiring a California licensed firearms dealer wishing to sell or transfer silencers to pay the required SOT under federal law. But unlike firearms classified as “dangerous weapons,” there is no state issued permit for the sale or transfer of silencers in California. (See Footnote 53) Instead, California law simply prohibits their ”possession” subject to the following exceptions:

  • The sale to, purchase by, or possession by agencies listed in Penal Code section 830.1, or the military or naval forces of California or the United States, for use in the discharge of their official duties;

  • The possession by regular, salaried, full-time peace officers who are employed by an agency listed in Penal Code section 830.1, or by the military or naval forces of California or the United States, when on duty and the use is authorized by the agency and is within the course and scope of their duties; or,

  • The manufacture, possession, transportation, or sale or other transfer to agencies listed in Penal Code section 830.1, or the military or naval forces of California or the United States, by dealers or manufacturers who have paid the required SOT under federal law. (See Footnote 54)

These exceptions effectively prohibit California licensed firearm dealers who have paid the required SOT under federal law from selling or transferring silencers to law enforcement officers in their individual capacity. So as with short-barreled rifles, short-barreled shotguns, and machineguns, dealers may only sell or transfer silencers to the agencies themselves, who can then presumably supply their individual officers with those silencers in accordance with the above requirements. (See Footnote 55)

V. “LARGE-CAPACITY” MAGAZINES

California law generally prohibits the manufacture, importation, sale, gift, loan, purchase, and receipt of any “large-capacity” magazine. (See Footnote 56) Exempt from this restriction are sales, gifts, loans, importation for purchase, or purchase by any federal, state, county, city and county, or city agency that is charged with the enforcement of any law, if the “large-capacity” magazine is:

  • For use by that agencies’ employees in the discharge of their official duties, whether on or off duty; and,

  • Where the use is authorized by the agency and is within the course and scope of their duties. (See Footnote 57)

As applied to California licensed firearm dealers, a DWP is not required to lawfully engage in the sale or transfer of so-called “large-capacity” magazines. However, a special permit is required for “possession, transportation, or sale” to “an out-of-state client.” (See Footnote 58) And while generally limited for purposes of sales or transfers outside of California, DOJ has taken the position that this permit is required for sales or transfers that occur within California. As a result, a California licensed firearms dealer wishing to engage sales or transfers to these agencies will need to obtain a “Large-Capacity Magazine Permit” issued by DOJ.

The sale, lending, transfer, purchase by, receipt, and importation of a “large-capacity” magazine by a “sworn peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2, or sworn federal law enforcement officer, who is authorized to carry a firearm in the course and scope of that officer’s duties” is also exempt. This allows individual law enforcement officers to acquire “large-capacity” magazines in their individual capacity provided they satisfy the above criteria. What’s more, officers are also free to acquire “large-capacity” magazines from sources outside of California as they are exempt from the importation restriction. No specific authorization from the officer’s agency is required. (See Footnote 59)

A. Duncan v. Becerra

With the enactment of both Proposition 63 and Senate Bill No. 1446 in 2016, California enacted a restriction on mere possession of so-called “large-capacity” magazines. But before the new restriction could take effect, CRPA filed a lawsuit and was successful in obtaining at first a preliminary injunction and, more.

 

 

1 27 C.F.R. § 478.102 (prohibiting licensed dealer from selling, delivering, or transferring a firearm to an unlicensed individual without completing a background check); Pen. Code § 28220 (requiring DOJ to conduct background check of prospective firearm purchaser and notify California licensed dealer of outcome).

2 See ATF E-Form 4473 (5300.9): Firearms Transaction Record, U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, https://www.atf.gov/file/61446/download (Oct. 2016).

3 See Permanent Brady State Lists, U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, https://www.atf.gov/rules-and-regulations/permanent-brady-state-lists (last visited Mar. 10, 2020).

4 See, generally, Cal. Code Regs. tit. 11, §§ 4200-4240; See also Pen. Code § 28205.

5 Pen. Code § 28220.

6 Id.

7 18 U.S.C. § 925(a)(1); See also 27 C.F.R. § 478.141.

8 Licensed firearm dealers will still need to maintain appropriate records of any acquisitions and dispositions of firearms for such transactions. And as discussed below, firearms regulated under the National Firearms Act are subject to additional federal requirements.

9 27 C.F.R. § 478.134 (exempting law enforcement officers from completing 4473 form); See also Pen. Code § 27600-27620 (general law enforcement exemptions to California’s firearm transfer requirements).

10 27 C.F.R. § 478.134(a).

11 27 C.F.R. § 478.134(b)(1)(i-iv). It should also be noted that for the purposes of the person in authority, federal law allows an individual to sign on behalf of that person provided there is a proper delegation of authority. 27 C.F.R. § 478.134(b)(2). This allows larger departments to delegate the necessary authority instead of requiring the top agency official to sign the required letter for every sworn member of their department wishing to purchase a firearm pursuant to the exception.

12 This is reiterated on ATF’s own website. See https://www.atf.gov/firearms/qa/may-licensee-sell-firearms-law-enforcement-agencies-and-individual-officers (last visited Mar. 11, 2020).

13 27 C.F.R. § 478.134(c).

14 Pen. Code § 27600(a).

15 Id.

16 Pen. Code § 27600(b).

17 Pen. Code § 37600(c). In the event the agency lacks access to AFS, it must arrange with the sheriff of the county in which the agency is located to input this information into the system. Id. What’s more, should the agency subsequently destroy the weapon, it must report the destruction in AFS within 10 days in the same manner. Pen. Code § 26700(d).

18 Pen. Code § 27610(a). While not expressly stated, the term “peace officer” is defined in Chapter 4.5

(commencing with Section 830) of Title 3 of Part 2 of the Penal Code.

19 Pub. Con. Code § 10334(b-d). What’s more, this code section only contemplates officers “employed by the State of California,” meaning officers employed by cities or counties (or other political subdivisions) may be subject to additional local laws or policies regarding transfers by the agency to its employee.

20 Pen. Code § 27605.

21 Pen. Code § 27540(a).

22 Pen. Code § 27650(a)(1-2).

23 Pen. Code § 27650(b)(1-2). These same requirements are restated on DOJ’s website. See https://oag.ca.gov/firearms/exemptpo.

24 Pen. Code § 27650(b)(3-4).

25 Pen. Code § 27540(f).

26 Pen. Code § 27540(g).

27 Pen. Code § 27535.

28 Pen. Code § 27540(f-g).

29 Pen. Code §§ 27535(b)(1), 27535(b)(5).

30 See DROS Entry System (DES) Firearms Dealership User Guide p. 40, California Department of Justice, Bureau of Firearms, https://oag.ca.gov/sites/all/files/agweb/pdfs/firearms/dros_entry_guide.pdf (Dec. 29, 2017, Rev. 3).

31 See, generally, Pen. Code §§ 30500-31115 (“assault weapon” and .50 BMG restrictions), 32610-32750

(machinegun restrictions), 33210-33320 (short-barreled rifle and short-barreled shotgun restrictions), 33410-33415 (silencer restrictions).

32 See Pen. Code §§ 3100-31005, 33300-33305, 32650-32655, 32700-32715; Cal. Code Regs. tit. 11, §§ 4124-4153; See also BOF 030 (Rev. 05/2019): Dangerous Weapons License/Permit(s) Application, California Department of Justice, Bureau of Firearms,

https://oag.ca.gov/sites/all/files/agweb/pdfs/firearms/forms/FD030DWapp.pdf (May 2019).

33 See, generally, 26 U.S.C. §§ 5801-5872; 27 C.F.R. §§ 479.1-479.193; See also ATF E-Form 5630.7: Special Tax Registration and Return National Firearms Act (NFA), U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, https://www.atf.gov/firearms/docs/form/special-tax-registration-and-return-national-firearms-act-nfa-atf-form-56307/download (Revised Nov. 2018).

34 26 U.S.C. § 2845(a); See also 26 U.S.C. §§ 5845(b) (defining “machinegun”), 5845(c) (defining “rifle”), 5845(d) (defining “shotgun”), 5845(e) (defining “any other weapon”).

35 26 U.S.C. § 5811.

36 Note that “Dangerous Weapons” are not all NFA regulated items and should be examined on a case by case basis.

37 26 U.S.C. § 5853(a).

38 See 26 U.S.C. § 5853(c).

39 ATF Form 5 (5320.5): Application for Tax Exempt Transfer and Registration of Firearm, U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, https://www.atf.gov/firearms/docs/form/form-5-application-tax-exempt-transfer-and-registration-firearm-atf-form-53205/download (Revised Sept. 2019).

40 ATF Form 4 (5320.4): Application for Tax Paid Transfer and Registration of Firearm, U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, https://www.atf.gov/firearms/docs/form/form-4-application-tax-paid-transfer-and-registration-firearm-atf-form-53204/download (Revised Sept. 2019).

41 Pen. Code § 30625. Note that this also requires the firearms to be “for use in the discharge of their official duties.” Id. As applied to federal law enforcement, Penal Code section 30630 also states that California law does not limit or prohibit the sale, delivery, or transfer, or the possession of an “assault weapon” or .50 BMG rifle by a member of a federal law enforcement agency, provided that person is “authorized by the employing agency to possess the assault weapon or .50 BMG rifle.” Pen. Code § 30630(c).

42 Pen. Code § 30630(b)(1)

43 Id. Note that the language used in the Penal Code for the required authorization only uses the word “assault weapon,” which does not necessarily include .50 BMG rifles. But because the exception expressly contemplates

44 Pen. Code § 30630(b)(2).

45 Pen. Code § 30900(b)(1).

46 A now outdated “Information Bulletin” from DOJ states law enforcement officers registering their firearm with DOJ must use a “Department of Justice Assault Weapon Registration Application (FD023).” See Information Bulletin No. 2001 FD-05: Assault Weapon Acquisition and Registration By Sworn Peace Officers, California Department of Justice, Firearms Division,

https://oag.ca.gov/sites/all/files/agweb/pdfs/firearms/infobuls/0105.pdf (Dec. 10, 2001). But this form does not appear to be available on DOJ’s website, nor is it clear if any similar form currently exists elsewhere.

47 Pen. Code § 30630(b)(3).

48 Pen. Code § 33220(a).

49 It is presumed federal law enforcement officers acting in the course and scope of their duties are exempt from California’s restrictions for reasons of federal supremacy. See U.S. Const. art. VI, cl. 2. But the lack of any exception for individual federal law enforcement officers suggests they will be unable to lawfully acquire such items in their individual capacity in California despite their status as federal law enforcement officers.

50 Pen. Code § 33220.

51 Pen. Code § 32610(a). The exception also notes that the sale, purchase, or possession must be “for use in the discharge of their official duties, provided however, that any sale to these entities be transacted by a person who” has the appropriate DWP.

52 Pen. Code § 32610(b).

53 See Pen. Code §§ 33410-33415; See also Pen. Code § 17210 (defining the term “silencer”).

54 Pen. Code § 33415.

55 Note that the California exceptions have no impact on federal transfer requirements, meaning the dealer will still be required to submit ATF Form 5 when transferring a silencer to a law enforcement agency.

56 Pen. Code §§ 32310(a), 16740 (definition of “large-capacity” magazine). Note that subdivision (c) of Penal Code section 32310 also prohibits possession of any “large-capacity” magazine, but this restriction is currently subject to a federal injunction and is otherwise unenforceable. See Duncan v. Becerra, 366 F.Supp.3d 1131 (S.D. Cal. 2019). As a result, individuals who currently possess “large-capacity” magazines cannot be charged with a violation of subdivision (c), regardless of they are law enforcement or not.

57 Pen. Code § 32400.

58 Pen. Code § 32315; Cal. Code Regs. tit. 11, §§ 5480-5484; See also BOF 050 (Rev. 01/2012): Large-Capacity Magazine Permit Application, California Department of Justice, Bureau of Firearms,

https://oag.ca.gov/sites/all/files/agweb/pdfs/firearms/forms/CLIcmpapp.pdf (Jan. 2012).

59 DOJ regulations require California licensed firearm dealers who possess a “Large-Capacity Magazine Permit” to maintain acquisition and disposition transaction records of the importation and exportation of “large-capacity” magazines. Cal. Code regs. tit. 11, § 5483. These records must be maintained for a period of at least three years. Id. But as with the permit itself, DOJ appears to have taken a policy position unsupported by any law or regulation expanding this requirement to sales or transfers occurring in the state of California.