California has some of the most burdensome gun control in the United States. The California Legislature, working with a series of anti-Second Amendment governors -- most notably Richardson (R), Reagan (R), Deukmejian (R), Davis (D), Schwarzenegger (R), Brown (D), and now Newsom (D) -- has created a Byzantine system of restrictions, limitations, delays, waiting periods, and other infringements on California gun owners and their rights, with dealer and transfer laws enforced by the State’s Attorney General and his Department of Justice.
And they now don’t even follow their own rules. But first, some background.
Quick Summary of California’s Waiting Period & Background Check Laws
When you buy, transfer, or are loaned a firearm in California, you are generally required by state statutes to wait for ten, 24-hour periods after the DOJ receives the DROS application (through their DROS DES system) before you can take possession (delivery) of your gun. (Penal Code §§ 26815(a) & 27540(a).) (There are some classes of government-favored people, like Hollywood, who are exempt from this rule -- but these exemptions don’t apply to most all law-abiding individuals.)
And the dealer cannot allow you to take possession of the firearm before that time. (Not only could they lose their license, it’s a crime for dealers to break the State’s rules on gun transfers.) But as soon as that 10-day period is over, California law says one of three things must happen:
- You have been approved, and you can take delivery of your gun;
- You have been denied; or,
- You’ve been delayed for one of three specified, expressly enumerated causes, and your background check waiting period can be extended up to a total of 30 days. This additional delay to your background check can only be used by the State under a limited set of circumstances. (Penal Code § 28220(f)(1).)
They have to have some substantial information from the background check conducted within the first ten days that, because of something real in their records that meets at least one of the three criteria, additional research is necessary and they are allowed to further delay the transfer. However, notably, the DOJ is not required to complete your background check, or absolutely know that someone is not prohibited, before they allow the transfer. (Penal Code § 28220(f)(4).)
TL;DR: The DOJ can’t delay firearm transfers just because they want to, or because it’s convenient, or because of administrative issues.
DOJ’s policy and practice of unlawfully delaying firearm transfers
Earlier this year, Attorney General Becerra, his California DOJ, and DOJ Bureau of Firearms Director Brent Orick issued the following policy:
Under Penal Code section 28220(f)(4), the Department of Justice (DOJ) has up to 30 days to complete background checks on purchasers of firearms and ammunition. Prior to the COVID-19 pandemic, DOJ typically completed these checks within Penal Code Section 26815(a)’s 10-day waiting period. COVID-19 protective measures have impacted the ability to increase the personnel resources in the DROS unit to address the recent sustained increase in firearms and ammunition transactions without compromising the health and safety of our employees and the community. As a result, firearms and ammunition dealers and purchasers should know that as DOJ employees continue to perform the statutorily required background checks throughout the COVID-19 pandemic, circumstances may compel that background checks are completed after the expiration of the 10-day waiting period. DOJ will continue to strive to provide the best service and complete these checks in the shortest time possible.
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Under the DOJ’s policy and practices, a DROS background check remains “pending” past the conclusion of the 10-day waiting period. Essentially, the transaction is left in purgatory until they get around to it and are ‘good and ready’ to finish their job. Not only is that unlawful, it hurts law-abiding gun owners who are trying to exercise their rights.
That’s why attorneys for Firearms Policy Coalition, two individual firearm purchasers, Firearms Unknown, a licensed dealer in the San Diego area, Poway Weapons & Gear, also a licensed dealer and indoor range in the San Diego area, San Diego County Gun Owners, Firearms Policy Foundation, California Gun Rights Foundation, and Second Amendment Foundation filed a lawsuit and petition for mandamus to challenge this unlawful delay. The case is styled Campos v. Becerra, and you can read the case documents at firearmspolicy.org/campos.
Campos v. Becerra alleges that the defendants/respondents Attorney General Becerra, Bureau of Firearms Director Orick, and the California Department of Justice have violated California law and their own regulations by issuing and enforcing the new policy of delaying gun transfers. If the case is successful, the court will put a stop to the policy and practice, and allow dealers to transfer firearms at the conclusion of the waiting period unless the DOJ can specifically point to a record that indicates the purchaser or transferee is prohibited from possessing and acquiring firearms. While the case seeks for the court to issue a few types of relief, at bottom, this case is about making Attorney General Becerra -- the highest law enforcement officer in the State -- follow the law and his own Department’s published rules.
Over the past months, COVID-19, civil unrest, and deadly riots have spurred more Californians to purchase firearms to defend themselves and their families. Indeed, these are exactly the kind of times when people want and need to be ready to defend their lives. Gun buyers and dealers have a right to do exactly what the law says, and the State must itself follow its own laws.
That’s why we filed this case, and why it’s so important -- especially right now.
Firearms Policy Coalition (www.firearmspolicy.org) is a 501(c)(4) grassroots nonprofit organization. FPC’s mission is to advance individual liberty, restore freedom, and defend the People’s rights—especially the fundamental, individual Second Amendment right to keep and bear arms.
Firearms Policy Foundation (www.firearmsfoundation.org) is a 501(c)(3) grassroots nonprofit organization. FPF’s mission is to defend the Constitution of the United States and the People’s rights, privileges, and immunities deeply rooted in this Nation’s history and tradition, especially the inalienable, fundamental, and individual right to keep and bear arms, through research, education, legal action, and other charitable programs.