ASK THE GUN LAWYER

QUESTION AND ANSWER COLUMN

Published by the Law Offices of Bruce Colodny

Copyright 2016 – All rights reserved

Welcome to Ask The Gun Lawyer, offering a different approach to educating and safeguarding the gun owners of California, a state with some of the most restrictive gun laws in the United States of America. I want to thank my entire staff for their generous contributions, suggestions and assistance with the Ask The Gun Lawyer column.
Disclaimer
All answers are based on current California and/or Federal law and regulations they are subject to change based upon new legislation, regulations or future court rulings. All questions concern common situations rather than actual cases and these questions and answers have been written and are intended only to provide general information; you should consult The Law Offices of Bruce Colodny for legal advice for a particular situation.

My father recently died and in his will he left me his gun collection (he was a serious Winchester collector). My sister, who was appointed the executor of his estate, just told me that when she inventoried the gun collection there were six old Winchester .22 rifles that did not have serial numbers so she thought that they were illegal and turned them into the police who told her they would destroy them.

My father always told me to obey the law and he was proud that he never even received a traffic ticket in over 50 years of driving so I don't think he would possess an illegal gun. Besides that, one of these Winchester rifles was my first gun and I was with him when he bought for me at a gun shop as my 10th birthday present. Did my sister do the right thing turning these Winchesters into the police?

 

No, she's an idiot. What's with your sister, why didn't she haul in one of those experts like they do on Pawn Stars?

Prior to the enactment of the Federal Gun Control Act of 1968, many rifles and shotguns were lawfully manufactured without being marked with serial numbers including many .22 rifles manufactured by Remington and Winchester.

Winchester rifles manufactured prior to 1964 are sought after by collectors, like a guy lost in the desert wants a cold beer, so the rifles your sister forked over to the cops were assets of your father's estate likely worth some serious clams which she had a fiduciary duty as the executor to inventory and care for so that your father's testamentary gift to you would be carried out.
You, or better yet get your own attorney, to notify the attorney for that lame brain sister that you want action taken right now, to ensure that these rifles are returned by the police so that they can be transferred to you after the necessary Order for Distribution has been issued by the probate court.

 

My girlfriend and I want to move in together but her kids are a little out of control. They get into everything and go through my stuff. She can't handle them and they cry if I say anything and then she gets upset. If she does move in with me I don't want them to get into my guns so I'm getting some trigger locks. What else can I do to avoid problems?

 

Hells bells son, buck up and be a man! You need to drop her like a bad transmission. If you haven't got the guts to do that, get cracking and get a damn gun safe...a big one and go into lockdown.

Even if her kids only come over once in a while, you need it NOW and bear in mind; birds of a feather flock together, so when their friends show up they're probably ruthless little criminals too. If a kid finds one of your guns and someone gets hurt, then you'll really find out what misery looks like pal.

You must have the patience of a saint, but remember that if you eventually flip-out thinking you want to apply some old-fashioned razor strap therapy or have a first-rate fight with your girlfriend, you may be convicted of a misdemeanor crime of domestic violence (that includes child abuse) which will subject you, under current law, to a lifetime...did you get that...LIFETIME, Federal firearms prohibition and a string of other headaches.

I can see the possibility of you being yanked in on California Welfare and Institutions Code 5150 too, that's an involuntary 72 Hour Detention for Evaluation and Treatment in a psychiatric facility.

If you still think you want to live together, get things under control before you take that next step. Having her move in under these circumstances may seem like a good idea now but remember, there's always free cheese in the mousetrap, but the mice there ain't happy.

 

Can I Shoot A Cat With A BB Gun To Make It Stop Defecating In My Children's Backyard Sandbox?


You'll shoot your eye out kid!

Listen up Ralphie, I know you may think that getting off some spectacular hip shots and the sharp sting of your official Red Ryder, carbine action, two-hundred shot, range model air rifle striking the flank of the uncouth feline will no doubt cause it to find a more appropriate public restroom tomorrow, but it's not something you should do.

Unless you're so far back in the woods they have to pump in daylight, there's likely a local prohibition on the discharge of firearms written broadly enough to include even BB guns. Perhaps not archery but still...the trespassing cat may be someone's beloved pet.

There's also the state statute prohibiting cruelty to animals, which is apt to be deemed to supersede older appellate court cases confirming a right to rub-out intruding animals threatening crops or livestock.

If this were some huge beastly creature, lumbering back and forth with you in the cross hairs, that might be different, but it's not. So instead of shooting, why not get a Rottweiler (it won't be fra-gee-lay and you can name it Scut Farkus), who will triple-dog-dare the cat when it stalks the bathroom!

Do consider that letting your Rottweiler act as your bouncer may scare hell out of the cat before it beats a hasty retreat from Junior's sandbox, causing it to leave a contribution anyway.


How do people get caught with illegal machine guns?


The list could go on longer than a Kevin Costner movie script, but here are a few examples. They blab, their love relationship goes down the drain or they have a calamity at their house, even if they're not there.

LOOSE LIPS SINK SHIPS - THEY BLAB

So there you are at the gun show babbling about how much you want a machine gun, how easy it is to convert certain semi-automatic rifles to fire full auto or that you know someone who needs some dough and has a machine gun their grandfather brought back when he returned from fighting in World War II, yak, yak, yak and someone overhears you flapping your chops. It could be anybody, even the guy you're talking to. They point their boney finger at your sorry ass and you're popped.

It could be the guy you thought was your friend, that you hooked with up that other guy, that has the World War II German machine gun, so that he could buy it.

Could be some jerk spying on you when you trekked out to shoot one so far out in the sand you stepped in camel dung, in other words, it could be anyone.

Pretty soon you answer your door and have a search warrant and badges brushed by your face and in comes the law to rummage through everything, including that freaky stuff that's in the back of your wife's closet.

 

HELL HATH NO FURY LIKE A WOMAN SCORNED

So you thought you were going to spend the rest of your life with her in blissful harmony and there were no secrets between you and your sweetie. You brag about what you and your Dremel tool did in the garage. With your chest puffed out like a frog about to croak, you proudly showed her the semi-automatic rifle that now shoots 750 rounds per minute because you were so smart and so skilful.

Then she finds those naked pictures of the other woman and dumps you like a Tiger Woods mistress. Where does she go next? She's down at the local police station or ATF office where they're showing her some other pictures of semi-automatic rifles so she can let them know which one looks like the one you and your Dremel tool fixed up.

 

SOME DAYS YOU'RE THE BUG - SOME DAYS YOU'RE THE WINDSHIELD

You finally decide that if you don't take your wife to see that movie, you'll be pretty sorry later on, so off you go. When you return, by George, there's the fire department in your house.

You're as baffled as Adam on Mother's Day, then you find out the "made in China" television in your bedroom exploded (or someone drove their truck through your front door, etc, you get the picture).

You're now going to miss out on that next episode of Manswers in 3-D as well as your payoff for sitting through that chick flick for two hours and instead get a ride down to the station 'cause after they put out the fire, they had to gather up all that detonated material that flew everywhere and found your illegal bullet hose under your bed, oops!

 

I know that machine guns are illegal to possess without meeting the legal requirements which I doubt I can accomplish under current California law, but if I'm careful and convert one of my semi-automatic rifles to fire fully automatic, I doubt I'll get caught. Besides that, since I don't have a criminal record, won't I just get probation and a fine if they do catch me?

 

Why, do you want to be one of my clients? Listen kid, machine gun offenses are as serious as a heart attack. Conviction usually results in a long stay in the cooler and you're saddled with a felony conviction on your back. You can resolve to yourself that AFTER you're sprung, you've kissed your guns away and can start collecting pet rocks and Pez dispensers. Oh, and by the way, you'll also lose a bunch of other rights.

You can be dragged into Federal or California court for prosecution and the bottom of the barrel offense level in Federal Court is a level 18 which means the judge must give substantial consideration to the recommended sentencing range which is 27 to 33 months and it can get worse based upon various aggravating factors.

Under California law, simple possession can be charged as either a misdemeanor conviction (about as rare as a vegetarian pit bull) but that still results in a 10-year California firearm prohibition or, as a felony, which means that you could have up to a three year reservation at the big house.

Under California law, making or selling a machine gun, or converting a firearm into a machine gun, is a felony punishable by up to eight years in state prison, a real bummer, so you'll be much closer to retirement age when you finally get sprung.

If you're convicted of unlawful possession of a machine gun, yes, you might be placed on probation and avoid jail or prison but as I told you before, you will still lose your gun rights for at least 10 years and very possibly, eternity, so ask yourself, do you feel lucky... punk, well, do ya?

Think about how ticked off your wife or your parents will be when you call them from the hoosegow begging them to hire a lawyer to try and save your butt or when the ATF serves a search warrant on your home and busts in with drawn guns to rummage through all your stuff.

Remember that machine guns are not per se illegal and there are ways private citizens can legally own or shoot a machine gun...just not in California.

I've done some pretty remarkable things for clients that are caught with machine guns, but they get a bill. If you decide to go against my advice, here...1-800-560-8000, this is how to reach me when you get caught, write it down.


I think machine guns are really cool, but not so cool that I am willing to go to jail. So can I legally possess a machine gun in California?


Well..technically, yes; but if you're an everyday Joe, and not willing to take the chance of going to the slammer, the practical answer is no.

Not only must the machine gun be properly registered with the ATF, a permit or license from the California Department of Justice is also required.

However...and here's the snag, the California Code of Regulations limit issuance to persons or companies who either perform research and development for, or manufacture or sell machine guns to law enforcement agencies or the military, or provide machine guns as props for motion picture or television productions (You could try taking a crack at getting that job). So if you aren't in the business of making machine guns for the cops or our soldiers or, have a contract with one of the movie studios ready to knock together that next movie with Jimmy Cagney or that Kill Bill chick with the fake leg, forget it.

Obtaining a California machine gun license or permit is a bitch and the various requirements include a background check and that the applicant demonstrate, by "clear and convincing evidence" that there is a bona fide market or public necessity sufficient to justify issuance, and yeah, there's more, each year to renew, you must demonstrate that you are actually operating a business rather than using the permit or license for collecting purposes, they're real sticklers about that.


I have a nasty problem with a neighbor that keeps calling the police on me for no reason other than she is an ultra-liberal who hates guns and gun owners.  She called and reported that I pointed a "sniper rifle" at her when she saw me unloading my truck after a hunting trip.  Another time she called and reported that I had a machine gun after she looked through a window and saw me cleaning my registered AR-15 after a match.

Whenever she has seen me loading firearms into my vehicle, she makes rude comments about gun owners being right-wing extremists or asks me if I am going out to kill Bambi.

What can I do to make her move?


Stop mowing your lawn, get yourself a "yard car" and hang it's engine by a chain from the tree it's parked next to, out in front of your house and every weekend have a loud party with plenty of horrifying guests?  Be aware that these tactics might be a criminal violation of a local zoning law or cause an expensive problem with your homeowners association (if you have one).  I can also think of many more antics that would probably cause her to leave in 24 hours or at most, a week, but while they may be well-deserved they would be unlawful so instead, let's look at some of your legal options.

Making a false police report is a crime. But despite that there have been a few prior incidents, the police may consider this to be a "he said-she said" situation so they may not arrest her or recommend to the District Attorney that she be prosecuted.  However, if you have evidence that she was not truthful in her reports to police, this might result in criminal charges being filed against her and stop the problem.

One way to deal with a "neighbor from hell" situation is to put her under observation and gather evidence against her by installing an outdoor surveillance system which records both video and audio. Such systems are not inexpensive but the cost has come down and is quite reasonable when compared to the attorneys fees or the potential loss of your gun rights that you might suffer if one of her future calls to the police does result in your arrest or if she obtains a restraining order against you. Besides, it will rattle her cage.

If you decide to have surveillance system installed, do not have any of the cameras pointed at her property, especially not at bathroom or bedroom windows, but rather they should be directed at your yard and driveway.

Be aware that in California it is a serious crime (violations can be prosecuted as felonies) to record a "confidential communication" without the consent of all parties.
There is a law enforcement exception and an exception allowing one party to a confidential communication to record the communication for the purpose of obtaining evidence reasonably believed to relate to the commission by another party to the communication of the crimes of extortion, kidnapping, bribery, any felony involving violence against the person, or a violation of Penal Code section 653m (certain annoying phone calls).

But rather than worry about violating California's invasion of privacy laws, instead you could post a few very prominent signs warning that your property is now protected by a 24-hour video and audio surveillance system and make sure the audio is adjusted so that it will not pick up normal conversations conducted exclusively off your property.  The signs will put her and other trouble makers on notice and they should be an effective deterrent to her continuing to harass you in the future; if not, you may gather some useful evidence for you or the authorities to use against her in court.

Whenever the California gun owner has an encounter with law enforcement or other government agencies, the results may be negative.

You can reduce the chances of another false report by taking measures to guard against "Miss Nosey" observing you handling guns in the future. For example, if you live in house with an attached garage that you can enter through the house, load and unload your guns while your vehicle is parked in the garage and the garage door is shut. If you cannot do this, consider using locking hard cases which do not have the appearance of a gun case such as a musical instrument case (maybe not a violin case, but then, I watch too many old movies), a tool box or an airline type case for a golf club bag.

When you clean or service your guns or when you reload, do not do it in front of a window, or at least close the curtains or draw the blinds. You probably shouldn't do it naked, either.
As a law-abiding gun owner you should not have to live under a siege mentality in your own home, but consider that in many parts of California even an exaggerated or false "man with a gun" call to 911 often results in the response of several police vehicles and perhaps even a police helicopter.


My son just got out of prison for armed robbery, his partner was also just released (he was in for safe cracking during the same incident), and on top of that he was a heroin user for years.  My wife insists that he move in with us now. I have a gun safe that holds my guns but I don't trust my son or his partner. What should I do?

 

Run, don't walk, to the nearest divorce lawyer? On a more serious note, letting Junior move in "just until he gets back on his feet and can get his own place" often leads to some very unpleasant encounters with law enforcement personnel and is usually a bad idea for the gun owner.

Since Junior was just released from prison, he will be on parole for a while and his person, possessions and residence will be subject to search on demand, with no search warrant required. Technically, only the bedroom that he occupies, along with the "common areas" (those areas which all occupants of the home have access to – usually the kitchen, living room, garage, etc.) should be subject to warrantless search but not those parts of the home that he does not have access to (usually the parents' master bedroom and the master bathroom, if it can only be accessed through the master bedroom).

However, as a practical matter, unless you keep the door to the master bedroom locked (and labeled with a prominent sign worded to the effect of "this master bedroom and bath are occupied exclusively by Junior's long suffering father and soft-headed mother, Junior is not allowed access nor does he have the key, and consent to enter is hereby denied absent the existence of a valid search warrant), Junior's parole officer (who will often be accompanied by several armed officers from the local police department) will search the entire home and demand that your wife open your gun safe (if she cannot say no to Junior, what makes you think she will be able to stand up to someone with a badge, a gun and the powers of arrest?).

If Junior is allowed to move back home with you, not only must you keep your guns locked up, you must also lock up your ammunition, all your ammunition reloading components, your magazines and other ammunition feeding devices.

When you have this discussion with Junior's mother, and before you decide that because you do not want to give her "half" and pay her spousal support forever so you will let the convicted felon move in, you should consider that when probation or parole searches are conducted, it is not uncommon for all occupants of the home to be handcuffed on the purported grounds that this is necessary for "officer safety".

Are you sure you don't want to finally admit your mistake, pay for the divorce and start looking for that trophy wife?

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