Duncan Finally!!!
09/27/2023
We finally got a decision. We have been waiting for months… well, really years… for Judge Roger T. Benitez to release his opinion
Enemy of The State
- By Steven Lieberman
- March 23, 2022
- 7:30 am
- Criminal Justice, Law Office of Lieberman & Taormina, Laws and Policy, Legal
Last week I received a call from a distressed client. He had just been subjected to a federal search warrant, and he was… and continues to be… terrified.
Anyone would.
His bucolic life was instantly turned upside down. He will never be the same. What portends of his future remains in question, and the trauma of the unknown, coupled by the reality of “what might be”, has kept him awake since that first fateful knock at his door.
What is worse, the scope of this investigation has expanded to include others. Now multiple individuals have been subjected to those same sleepless nights.
The issue here is instructive to us all. It also highlights the idiocy of both our federal, as well as our state, gun laws.
Mr. X (that is what we will call him) has been a California resident for many years. A few years ago he decided to buy property out of state. The thought at the time was that he would become a permanent resident of that state and forgo all of the great benefits of being a California resident. He did, however, still have family here in the People’s Republic and was unwilling to completely abandon them. So he kept his Southern California home and spent roughly half the year out of state with the occasional soirées back to Cali.
In his new home state he obtained a driver’s license. He did not, however, surrender his California driver’s license, not that they asked him to. The “ask” never took place, and he felt no obligation to inform the apparatchiks in Sacramento that they no longer had their jurisdictional claws in him.
While in the new state he bought some guns… lots of guns. This was finally an opportunity to be able to legally purchase firearms manufactured after 2015 and not on the California state-approved list.
But, he still had that home in California, and family demands were pressing. So he traveled home and… because he could… he brought some of those guns back with him.
Pursuant to the 1968 Federal Gun Control Act, someone can only purchase a handgun in the state in which they are domiciled. One of the dispositive forms of evidence of intent to domicile is a driver’s license or state ID. Well, with that driver’s license, he bought those guns.
For a private party transfer to take place, both parties need to be residents of the state in which the transfer is occurring. Again, a driver’s license is dispositive evidence that the party is domiciled in that state.
So… back in California he decided to sell (primarily to friends) some of the guns he had acquired out of state. Since California has that idiotic roster, and an FFL cannot transfer guns to customers out of their inventory that are not on the roster, one of the ways California residents can get their hands on an “off-roster” gun is through a private party transfer.
To be sure, the transaction cannot take place in someone’s living room. Both parties need to go through an FFL that is on the California Centralized Firearms Dealers’ List.
So… Mr. X sought out the services of a local FFL and, over the course of the last few years, did occasional private party transfers of firearms.
This is where things get tricky… and stupid.
Federal law demands that someone who is in the “business” of transferring firearms be an FFL. What constitutes “in the business”, in my opinion, is arbitrary and capricious. If you have accumulated a collection of firearms and want to liquidate it… say for retirement money (yeah… the ATF website actually states that)… then you are “not in the business”. Buy a couple of guns and decide that you want to sell them to a buddy… you may now “be in the business”… especially if you make money on the transaction. (I remember talking to an ATF agent about a similar case and she was fixated on the profit the suspect made.)
Worse, when you buy a gun, you have to fill out a federal Form 4473. One of the statements you make on that form is that you are the actual buyer or transferee. If you are, in fact, buying it with the intent to resell then by checking this box you are effectively committing perjury.
The issue here… and it is a big issue… is what the buyer’s intent was at the time of the purchase. Good luck, State, in proving that intent. First off, intent to be domiciled is almost impossible for the State to disprove. Secondly… without some form of evidence the buyer was, in fact, buying the gun for a specifically identifiable individual does not prove that he did not intend to be the actual owner at the time of the purchase…
Here is the thing that really rubs me the wrong way though: Mr. X used an FFL for all transfers! This is not someone who was trying to “deal in illegal transfers” to prohibited persons, you know… like real criminals do. He knew the law required all gun transfers go through an FFL and he used a local FFL. He did not do this because he was stupid… he did it because he thought he was following the law.
The irony is that since he personally knew each of the buyers, and had he purposely violated the law and sold the guns outside the system… ATF would never have known and there would not have been an investigation and potential indictment.
Like I said, this has caused collateral damage as well. The FFL he used had its guns seized pursuant to a federal search warrant, and the gunsmith who is located near the FFL where many of the FFL customers bring their newly acquired firearms for modification work, had all of his customers’ guns seized. This means that regular Joes and Janes, who have absolutely no connection to this case, now have their firearms in the possession of ATF with no dates or timelines available for when they will be returned.
Mr. X is despondent. The FFL is terrified. The gunsmith is incredulous. The gunsmith’s customers are infuriated. For what? This is how the government keeps us safe?
Steven Lieberman
Steven Lieberman Esq. is a Captain in the California State Military Reserve and a use of force attorney working with law enforcement and legally armed civilians in protocols, training, as well as civil and criminal culpability compliance issues. His knowledge of use of force protocols, as well as the institutional workings of law enforcement, provides clients with the necessary tools to avoid criminal prosecution, and mitigate civil liability.
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Comments (8)
Thanks again for another great blog post! You got a way with words boss, Coffee with Steven videos and the subsequent blogs that follow are one of the best parts of the week. Please keep us informed on this case, its not only an important one to everyone in the gun community but also very insightful on the train of thought from the fed, state, ATF etc.
First, I’m not a lawyer and changing your legal domicile is tricky, however, there are steps you can take to fortify your “new” residency:
Surrender your previous driver’s license, register your vehicles (and insurance), change your legal mailing address, spend the required number of days in your new home and file your tax returns from your “new” state.
Do everything you can to support your legal residency.
Good to keep all of this in mind now that we own property in Texas. I will definitely, and gratefully, “surrender” my California license when I register in Texas. From what I understand, California hounds you on both licensing and registration of vehicles long after you give them proof that you have moved out of state, and have registered your vehicle in that state. Threats of garnishing wages, and suspending the vehicle license included. This state is onerous and draconian in it’s attempted control on our property.
Steven – what is the past history regarding the seizure of such unrelated firearms? For example, are they returned to the Gun smith in ordinary course? Or held until the completion of any criminal probe? Are they only returned directly to the lawful owner – and only after those lawful owners are in turn “investigated?”
What are the implications for folks with residence in other states? For example, what if I want to build my summer-winter vacation home “Ponderosa” out of state. Are you indicating that I would need to have all of the drivers licenses, utilities, and tax/commerce connections accordant with such vacation “residence” such that it becomes my “domicile” and thereby liberates me from the California firearms registry?
I suppose I am asking – is there a difference between California’s definition of domicile and the ATF’s definition of domicile. Because I would like to build my vacation Ponderosa… and I would like to have a beautiful gun safe in that vacation Ponderosa (with a few choice firearms)… purchased in a state where the absurd California restrictions do not apply… but where I would not face mandatory minimums.
Anyway. Great blog. Thought provoking. Hope you can write a post-mortem on all of this down the road. Cheers.
Thank you for your insight. My heart goes out to those who have been caught in the tentacles of the “enforcement” monster. I’d imagine most CA gun enthusiasts are using private party transfers now, and compliance will only become murkier as more people refuse to purchase “new” 10-year old models. Hopefully one of the existing lawsuits against CA roster will ultimately prevail.
Very interested to hear how this unraveled and hopefully get the State and ATF slapped!
I’m not sure if maybe I’m missing something here. Was the FFL supposed to know that the seller had bought the firearms in question under his out of state address? Does the paperwork/transfer process require the FFL to verify that the seller’s transfer is legal? If the FFL didn’t correctly follow procedure then I get how the feds now have ammunition to use against them. But it really seems like overreach to confiscate all of the firearms of the gunsmith belonging to unrelated customers. That seems like a gross violation of right to bear arms and something CRPA should take to court.
Thank you for keeping readers informed of current events in legal / law enforcement happenings with regards to firearms. In California, for example, even a single letter or digit which is different on your ammo purchase FORM in store will result in a denial (via the vendor) of that ammo purchase. In other words; IF the clerk behind the counter does not input information exactly as registered (using your ID), you will be denied the ammo purchase. Then you’ll have a 24 hour wait time before you can resubmit your purchase and try again.
It is tough for all of us to watch the focus of law enforcement mechanisms bear down on certain groups of individuals (2A – gun owners?) to the point of knocking on doors, yet, as an example we have lawless operations at our southern border (and in Chicago, and Washington DC?) , and no one is knocking on doors to correct that situation. The list goes on as time moves forward.
My final question, (and it might be yours too) is: What happened to the politicians who stood up and protected our rights as individuals? What happened to republicans specifically (as the traditional supposed supporters of the 2nd Amendment) and democrats who used to support the 2nd Amendment?
Are gun owners becoming the potential threat, while criminals are now becoming the victims? Interesting times. Thanks again for your insight and knowledge on legal issues surrounding the 2A community.