Overview: The California Office of the Attorney General recently issued an opinion finding that the offense of completing an unlicensed firearm transaction is committed by both the person transferring the firearm and the recipient. As such, both parties may be punished under Penal Code section 27590. The opinion explains that Penal Code section 27545 prohibits the sale, loan or transfer of a firearm unless “lawfully accomplished through a licensed dealer.” If neither party in the transaction satisfies all of the requirements of a licensee under the Deadly Weapons Recodification Act (Act), both are guilty of engaging in an unlicensed firearm transfer and are subject to the penalties imposed for this “wobbler” offense.
Training Points: Though Attorney General opinions are not binding on courts, they are considered persuasive authority. Here, the Attorney General’s opinion relies upon the clear language of the statute to clarify who can be charged with the crime. Law enforcement officers should keep this clarification in mind when deciding whether to arrest and charge individuals connected with an unlicensed firearm transaction. By targeting both the buyer and the seller in such transactions, officers can be more effective in addressing the issue of improper/illegal firearm transactions.
Summary Analysis: In Opinion No. 10-504, the Attorney General determined that both parties to an unlicensed firearm transaction were guilty of violating Penal Code section 27545 and punishable under section 27590. In reaching this conclusion, the Attorney General reasoned that the statute referred to plural, not singular, “parties” when requiring that both the “transferor and transferee” lawfully complete a firearm transaction through a licensed dealer. Further, a bill analysis prepared for the Assembly Committee on Public Safety explained that the 2010 Act revised previous statutes to impose liability not only on the seller, but both parties when a private firearm transaction is not brokered through a licensed dealer or local law enforcement agency.
