Published by the Law Offices of Bruce Colodny
By Bruce Colodny, The California Gun Attorney
Revised & Copyright © 2017
Most firearms enthusiasts have seen advertisements offering internet and mail order sales of firearms accessories or kits, unusual knives, flares, signaling devices, and various other exotic devices. Often these advertisements will state that the item is "ATF Approved" or that it is shipped with a copy of a ATF letter stating that the item is not a firearm subject to federal control.
Even though the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") may consider an item not subject to federal law as a firearm, it may still be illegal under California law. Why? As a general rule, California laws dealing with firearms and other non-firearm weapons tend to be much more restrictive than the federal laws or the firearms and weapons laws of most other states.
The California gun owner must be aware that many non-firearm items still commonly sold at some gun shows or currently offered for sale by mail order on the internet or in gun magazines are illegal in California. Although some of these items were previously legal in California, there was no publicity when they were banned. As mere possession, even in the privacy of your home, can be prosecuted as a felony, it is imperative that the California gun owner knows the law in this area.
The California Penal Code prohibits possession of a long list of items, both firearm and non-firearm, in California. Violations often can be prosecuted as either a felony or a misdemeanor. Since I began representing California gun owners in 1982, I have seen numerous cases where violations, for mere possession of such common items as billy clubs, batons, throwing stars, etc., have resulted in the filing of felony charges.
Even if the prosecutor eventually decides to file only misdemeanor charges, when you are arrested, you will almost certainly be booked on felony charges with the higher bail amount normally associated with felonies.
The California Penal Code prohibits even mere possession of short-barreled shotguns, short- barreled rifles, cane guns, wallet guns, undetectable firearms, firearms not immediately recognizable as a firearm, camouflaging firearms containers, ammunition containing or consisting of a flechette dart, explosive bullets, ballistic knives, multi-burst trigger activators (e.g. "BMF Activator", "Hellfire", etc.), nunchakus, metal knuckles, belt buckle knives, leaded canes, zip guns, shuriken, unconventional pistols, lipstick case knives, cane swords, shobi-zue, air gauge knives, writing pen knives, metal practice or replica hand grenades and items or weapons commonly known as blackjacks, slungshots, billy clubs, sandclubs, saps or sandbags. The California Penal Code also prohibits carrying concealed upon the person any dirk or dagger.
California gun owners should also be aware the Penal Code contains multiple definitions of destructive devices. Again, even though the ATF may have sent out a letter stating that an item is not deemed to be a firearm or destructive device under federal law, mere possession in California may subject you to felony prosecution. For example, 37mm launchers are regularly offered for mail order sale on the Internet. The ATF has sent out a letter stating that these launchers are considered both firearms and destructive devices when they are possessed along with "anti-personnel ammunition" such as riot control cartridges containing wood pellets, rubber pellets or balls, or bean bags.
However, this same ATF letter also states that these launchers are neither firearms nor destructive devices (and therefore not subject to federal control) when possessed only with pyrotechnic (e.g. "bird bombs" or "star burst distress flares") or tear gas cartridges. The potential "legal trap" is that there have been prosecutions in California for possession of these 37mm launchers that were possessed only with pyrotechnic cartridges. Why? Aggressive District Attorneys have used the broadly worded California definitions of destructive devices and fireworks to prosecute California gun owners who assumed these items were legal because they were able to acquire them from commercial sources.
Even certain guns treated as conventional firearms under federal law, are unlawful in California. For example, the Thompson Contender single shot pistol, when equipped or possessed with a combination .45 Colt/.410 shotgun barrel or just the barrel itself, and the popular Taurus Judge .45 Colt/.410 shotgun revolvers are illegal in California as they are considered to be short-barreled shotguns. However, the ATF does not consider them to be sawed-off shotguns because their barrels are rifled rather than smooth bore.
Tracer ammunition (except for use in shotguns) is illegal in California, as it is included in the definition of a destructive device; possession of even a single round of World War II 30-06 tracer ammunition can subject you to felony prosecution.
Unwitting California gun owners have been arrested and prosecuted for possession of exploding targets. Why? The California Health and Safety Code Section contains a broad definition of fireworks including devices that produce, by combustion, an audio or visual effect for entertainment, and the California Penal Code prohibits the possession of substances or materials with the intent to make any destructive device or any explosive.
There are other common gun show and mail order items not listed in this article that may also subject you to arrest and prosecution. If in doubt, don't buy the item until you make certain it is legal in California.