“BATF Approved”

May Not Make it Legal in California

Another “Legal Trap”

for California Gun Owners

Published by the Law Offices of Bruce Colodny 

By Bruce Colodny, The California Gun Attorney
Revised & Copyright © 2013

GunLaw.com

Most firearms enthusiasts have seen advertisements offering 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 "BATF Approved" or that it is shipped with a copy of a BATF letter stating that the item is not a firearm subject to federal control. Even though the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives ("BATF") 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 gun shows or currently offered for sale by mail order on the internet 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. Penal Code §12020 contains a long list of items, both firearm and non-firearm, prohibited in California. This statute is what is referred to in the slang of the legal profession as a "wobbler", meaning a violation can be prosecuted as either a felony or a misdemeanor. Since I began representing California gun owners in 1982, I have seen numerous cases wherein Penal Code §12020 violations, for mere possession, 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 printed version of Penal Code §12020 is several pages of single space type, two columns per page. It 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. This section also prohibits carrying concealed upon the person any dirk or dagger.

California gun owners should also be aware of the provisions of Penal Code §12301 that contains multiple definitions of destructive devices. Again, even though the BATF 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 in The Shotgun News. The BATF 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 BATF 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, is illegal in California as it is considered a short-barreled shotgun. However, the BATF does not consider it a sawed-off shotgun because the barrel is 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.

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.

Disclaimer: The information contained within is subject to change as a result of future court decisions and/or new legislation. If you have questions concerning a specific item you should consult a qualified California attorney.