Laws On Unlicensed Sale Of Firearms In California

California law requires a valid permit to sell, transfer or lease any type of firearm. Below Aizman Law Firm explains the law under penal code 26500 for the unlicensed sale of firearms.

Overview Of Penal Code 26500

You are not permitted to sell, transfer or lease any type of firearm to anyone without a valid permit under Penal Code Section 26500. Even if you do have a license or permit to sell a gun, the permit must specify the type of firearm you are legally able to sell or transfer if not a generic firearm.

Firearms are specifically defined in PC 16520¹

1. A device that is designed to be a weapon,
2. From which a bullet, shot or projectile may be expended through a barrel,
3. By the force of an explosion or combustion

These devices include pistols, revolvers, shotguns, rifles, rocket launchers², Tasers and flare guns.

What About BB Guns or Antique Guns?

It does not include BB or pellet guns or unloaded antique firearms³.

Classes Of People Who May Not Own Or Possess A Firearm

Although the US Supreme Court interpreted the 2^nd Amendment to the US Constitution as granting the right to own firearms, this right is not absolute under certain circumstances nor is it available to certain classes of people.

These include:

• Anyone convicted of a felony, regardless if it has been expunged.⁴
• Drug addicts⁴
• Persons suffering from mental illness⁵
• Anyone under the age of 18⁶
• Persons with at least 2 convictions for brandishing a weapon under PC 417 ((California Penal Code 29800(a)(2).))
• Persons convicted of certain misdemeanor offenses⁷

Additionally, all persons that are prohibited from owning a firearm are also prohibited from owned ammunition⁸. A person who purchases a revolver, pistol or any other handgun from you must also possess a valid handgun safety certificate⁹.

Classes Of People Exempt From PC 26500

PC 26500 does not apply to everyone.

These classes of people may sell or otherwise transfer firearms without fear of prosecution:

• Law enforcement¹⁰
• Military agencies
• Foreign governments and agencies as authorized the US State Department
• Persons making firearms available for use solely at target ranges
• Persons who inherited a firearm and wish to dispose of it¹¹
• Those who transfer of limited number of firearms at gun shows¹²
• Persons who deliver or loan a firearm to a gunsmith for repair¹³
• Between and among federally authorized gun dealers, manufacturers and importers¹⁴
• Actors or others who use unloaded firearm as a prop in a movie, television show, play or other entertainment site¹⁵

TV & Film Must Obtain Permits

Movies or television shows that use destructive devices in their films must obtain permits to use them. Other than this limited list of exempt individuals, any other sale, loan or transfer of a firearm by private individuals must go through or be completed by a licensed firearms dealer.

Requirements Of A Firearms License To Sell

To sell firearms, you need a license. To get a license, you must obtain the following¹⁶:

• A firearms license
• A business license required by your local municipality
• Seller’s permit from the State Board of Equalization
• Certificate of Eligibility from the Department of Justice
• One-year license from your local authorizing agency

The one-year license is on a form provided by the state Attorney General’s Office. It must state “Valid for Retail Sales of Firearms” and contain an endorsement by the local authorizing agency.

This applies to generic firearms and not specific types of weapons such as grenades, short-barreled rifles or shotguns, machine guns and those weapons classified as dangerous or “generally prohibited” weapons or as assault weapons for which there are specific licensing conditions and requirements.

If applicable, you must have a letter from the licensing authority that states that no license is required to sell firearms in this jurisdiction or that it does not restrict the sales of firearms.

If you Fail to Maintain Your License

A failure to maintain these licenses can subject you to revocation of your license. If you do sell or transfer a firearm without a valid license, or sell any of the firearms for which you do not possess a specific permit to sell, you face prosecution for violating PC 26500.

Penalties

A violation of PC 26500 is a misdemeanor in California¹⁷.

This sentence pertains to each violation so if you sold 6 firearms without being a licensed dealer or they were specific guns for which you held no permit to sell, you face 6 separate misdemeanor charges and sentences¹⁸.

Penalty	Misdemeanor
Fine	Up to $1,00019
Jail	Up to 6 months

Legal Defenses

There are defenses to being charged with illegally selling firearms even though the law is straightforward in terms of either having a valid permit to sell generic firearms or one to sell specific types of firearms or not.

Police misconduct or Entrapment

Police officers occasionally do go to extralegal or illegal lengths in order to arrest someone. Entrapment is not a common occurrence and to use it successfully, certain circumstances must have occurred.

1. You must have not have had the intent to violate the law.
2. The officer used undue influence, coercion or threats to force or persuade you to violate the law. In other words, but for the coercive tactics used by the officer, you would not have sold the firearm to the officer, knowing that you had no valid permit to sell. Other types of police misconduct concern officers lying about or making up facts or even planting evidence in some cases. These acts constitute a violation of your civil or constitutional rights.

1. Penal Code 16520., available at http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN&sectionNum=16520: [↩]
2. California Penal Code 16520(c) – As used in the following provisions, “firearm” also includes a rocket, rocket propelled projectile launcher, or similar device containing an explosive or incendiary material, whether or not the device is designed for emergency or distress signaling purposes: [↩]
3. California Penal Code 16520(d) – As used in the following provisions, “firearm” does not include an unloaded antique firearm. [↩]
4. California Penal Code 29800(a)(1). [↩] [↩]
5. California Welfare and Institutions Code 8100. [↩]
6. California Penal Code 29610 [↩]
7. California Penal Code 29805 [↩]
8. California Penal Code 30305(a)(1) – No person prohibited from owning or possessing a firearm under Chapter 2 (commencing with Section 29800) or Chapter 3 (commencing with Section 29900) of Division 9 of this title, or Section 8100 or 8103 of the Welfare and Institutions Code, shall own, possess, or have under custody or control, any ammunition or reloaded ammunition. [↩]
9. California Penal Code 31615. [↩]
10. California Penal Code 26510. [↩]
11. California Penal Code 26515. [↩]
12. California Penal Code 26525. [↩]
13. California Penal Code 26587. [↩]
14. See California Penal Code sections 26530, 26535, 26550, 26555, 26560, 26565, 26570, and 26575 PC. [↩]
15. California Penal Code 26580. [↩]
16. State Of California Department Of Justice FAQ For Firearms Dealers https://oag.ca.gov/firearms/dlrfaqs#1G [↩]
17. California Penal Code 26500(b) – Any person violating this article is guilty of a misdemeanor. [↩]
18. California Penal Code 17800 [↩]
19. California Penal Code 19 [↩]