Penal Code 26500 PC - Selling Firearms Without a License
While informal gun sales and ownership transfers are permitted in some states, California is stringent on the sale and transfer of firearms.
With few exceptions, all firearm transactions must be conducted by a licensed firearms dealer—namely, someone who has a federal firearms license (FFL), a local permit, and certification by the California Department of Justice.
Even person-to-person transactions must be conducted through a dealer. If you sell, lease, or transfer possession of a firearm without the proper licensing, you could be charged with a crime under California Penal Code 26500 PC. If convicted, you could face up to a year in jail.
Put simply, under this law; it is a misdemeanor to sell, lease or transfer firearms without a valid license or permit.
PC 26500 says, “(a) Nobody shall sell, lease, or transfer firearms unless the person has been issued a license pursuant to Article 1, commencing with Section 26700, and Article 2, commencing with Section 26800) of Chapter 2. (b) Anyone violating this statute is guilty of a misdemeanor crime.”
Of note is that some items are not considered a firearm under the law, such as BB guns, pellet guns, and unloaded antique firearms.
To be found guilty under this statute, a prosecutor has to prove, beyond a reasonable doubt, that a defendant sold, leased, or transferred a firearm without a license. Let's review this state law in greater detail below.
Overview of PC 26500
The law regarding gun sales in California is pretty straightforward. PC 26500 prohibits anyone from selling, leasing, or "transferring" a firearm without being licensed.
The key to understanding the scope of this law is in how the terms are defined:
"Transferring" a firearm means delivering it to another person through a sale, gift, loan, or some other type of transfer.
A "firearm" is any device that can shoot a projectile using explosion or combustion. This includes:
- Shotguns, including short-barreled,
- Rockets, rocket launchers, and similar explosive devices.
Since BB guns and pellet guns don't use combustion, they are not counted as "firearms" in this definition. Antique firearms that aren't loaded are also excluded from this law.
The people who are generally prohibited from owning or possessing a firearm or ammunition in California include:
- Anyone convicted of a felony crime,
- Anyone convicted of certain misdemeanor crimes,
- Anyone who suffers from a mental illness,
- Anyone who is addicted to narcotics,
- Anyone under the age of 18,
- Anyone with two or more convictions of brandishing a weapon defined under Penal Code 417 PC.
What Are the Related Crimes?
Some related laws could be charged in addition to or instead of Penal Code 26500 or other firearm offenses, including the following:
- Penal Code 25400 PC - carrying a concealed firearm,
- Penal Code 25850 PC - carrying a loaded firearm in public,
- Penal Code 26360 PC - openly carrying an unloaded handgun,
- Penal Code 29800 PC - felon with a firearm,
- Penal Code 25100 PC - criminal storage of a firearm,
- Penal Code 33410 PC - possession of a silencer;
- Penal Code 12556 PC - imitation firearms law.
What Are the Exceptions to PC 26500?
Other California laws exempt certain firearm transactions from prosecution under PC 26500, although proving these exceptions may be challenging in certain situations. The exceptions include the following:
- Members of law enforcement and those acting under a court order or other legal authorization,
- People disposing of firearms they've inherited,
- "Infrequent" transfer of firearms (e.g., person-to-person or gun show transactions, provided that a licensed firearms dealer is at least involved in the transfer),
- Transferring unloaded firearms used as props in movies, TV, or other entertainment productions,
- Transferring a firearm to a gunsmith for repair,
- Loaning firearms at target facilities,
- Transfers to/from federally authorized firearms manufacturers, dealers, and importers,
- Transferring unloaded antique firearms (curios, relics, etc.) to licensed collectors,
- Certain transfers of firearms between immediate family members.
What Are Some Examples?
EXAMPLE 1: Jeff has a handgun he no longer uses. He sells it directly to his friend Arnie without going through a licensed dealer.
Jeff could be charged under PC 26500 because he was not licensed to transfer the weapon. Although the transaction could be considered an "infrequent" transaction, Jeff is not legally protected because he didn't involve a licensed dealer.
EXAMPLE 2: Mary wants to give her son John a handgun she inherited from her late father. Since she is disposing of a firearm she inherited (and because John is an immediate family member), she is exempt from prosecution under PC 26500.
EXAMPLE 3: Tom takes his friend Fred to the firing range for the first time. Since Fred has no handgun, Tom lends him a spare handgun for use at the range.
Tom is not guilty under PC 26500 because lending a firearm at a shooting range is a legal exemption.
What Are the Legal Penalties?
Selling, leasing, or transferring a firearm without a license is a misdemeanor offense in California, punishable by up to 6 months in jail and up to $1000 in fines. However, that penalty counts for each firearm you sell or transfer without a permit.
Thus, if you are charged with illegally selling or transferring three guns, you could face six months in jail and $1000 in fines for each firearm sold or transferred, meaning a maximum of 18 months and $3000.
What Are the Common Defenses?
If you're charged with a crime under PC 26500, your attorney may be able to implement one of several legal defenses. The most common are discussed below.
Perhaps we can argue that there is a qualified exemption. If you can demonstrate that your transaction fell under one of the recognized exemptions above, you may be able to get the charges dropped.
Perhaps we can argue that there was a lack of knowledge. If the prosecution cannot prove that you knew you needed a license to sell or transfer the firearm, you may be able to avoid a conviction or receive a more lenient penalty.
Perhaps we can argue there was police misconduct (e.g., entrapment, coerced confession). Law enforcement officials sometimes bend the rules to "get guns off the street."
If, for example, an undercover cop threatens or coerces you into selling or giving them a firearm that you wouldn't have parted with under normal circumstances, you may be able to use entrapment as a legal defense.
Contact our law firm to review the details and options if you have been accused of violating Penal Code 26500, unlicensed sale of firearms. Eisner Gorin LLP is based in Los Angeles, California. You can contact us via phone or fill out the contact form.