Posted on January 12, 2015
See our Background Checks policy summary for a comprehensive discussion of this issue.
Federal law requires federally licensed firearms dealers (but not private sellers) to initiate a background check on the purchaser prior to sale of a firearm. This background check is intended to determine whether the purchaser falls into one of the categories of persons prohibited by law from purchasing or possessing firearms. Federal law provides states with the option of serving as a state “point of contact” and conducting their own background checks using state, as well as federal, records and databases, or having the checks performed by the FBI using only the federal National Instant Criminal Background Check System (“NICS”) database. Note that state files are not always included in the federal database.
California authorizes, but does not require, the California Department of Justice (“DOJ”) to act as a point of contact “to the extent that funding is available.”1 Since funding is available, California is a point of contact state for firearm purchaser background checks. Firearms dealers must therefore initiate the background check required by federal law by contacting DOJ.
California law requires any prospective purchaser of (or transferee or person being loaned) a firearm to submit an application to purchase the firearm (also known as a “Dealer Record of Sale” or “DROS” form) through a licensed dealer to DOJ. The dealer must submit firearm purchaser information to DOJ on the date of the application through electronic transfer, unless DOJ makes an exception allowing a different format.2 The purchaser must present “clear evidence” of his or her identity and age to the dealer (either a valid California driver’s license or a valid California identification card issued by the Department of Motor Vehicles).3 Dealers must obtain the purchaser’s name, date of birth, and driver’s license or identification number electronically from the magnetic strip on the license or ID card.4 This information cannot be supplied by any other means except as authorized by DOJ.5 Once this information is submitted, DOJ will check available and authorized records, including the federal NICS database, in order to determine whether the person is prohibited from possessing, receiving, owning, or purchasing a firearm by state or federal law.6
In addition to checking the federal NICS database, DOJ is required to examine its own records, as well as those records that it is authorized to request from the State Department of State Hospitals.7 If the person is prohibited from possessing firearms under state or federal law, DOJ must immediately notify the dealer and the local sheriff or chief of police in the city and/or county where the sale was made.8 Licensed dealers are prohibited from delivering a firearm to a purchaser or transferee if the dealer has been notified by DOJ that the person is prohibited from possessing firearms.9 If the person is prohibited from possessing firearms, the dealer must make available to the prohibited person a DOJ “Prohibited Notice and Transfer” form, stating that the person is prohibited from owning or possessing a firearm and that the person may obtain from DOJ the reason for the prohibition.10
When a purchaser or transferee is specifically seeking to obtain a handgun, he or she must present documentation indicating California residency. Sufficient documentation includes a utility bill from within the last three months, a residential lease, a property deed, military permanent duty station orders indicating assignment within California, or other evidence of residency as permitted by DOJ.11
In addition to California’s mandatory ten-day waiting period,12 DOJ must also tell the dealer to delay the transfer of the firearm to the purchaser if DOJ is unable to determine, in any of the following scenarios, whether the purchaser is a person who is prohibited from possessing a firearm: 1) the purchaser has been taken into custody and placed in a facility for mental health treatment or evaluation and may be a danger to self or others; 2) the purchaser has been arrested or charged with a crime that, if convicted, would make the person prohibited from possessing a firearm; or 3) the person may be attempting to purchase more than one firearm within a 30-day period.13 If DOJ is unable to obtain a final disposition under any of these scenarios within 30 days of the original submission of the purchaser’s information by the dealer, then DOJ must notify the dealer and the dealer may then, at the dealer’s discretion, transfer the firearm to the purchaser.14
Note that holders of a California entertainment firearms permit are exempt from the requirement of a background check, due to a loophole in federal law. For further information, see the Licensing of Gun Owners and Purchasers in California section.
Voluntary background checks: Any person may request a voluntary determination, called a “firearms eligibility check,” from DOJ, stating whether he or she is eligible to possess a firearm.15 With few exceptions, no person or agency may require or request another person to obtain a firearms eligibility check.16 DOJ is authorized to charge a fee of $20 for conducting each check.17
Firearms in police custody: Any person claiming title to any firearm in the custody or control of a court or law enforcement agency who wishes to have the firearm returned must undergo a background check to determine if he or she is eligible to possess a firearm.18 If an individual does not seek return of a firearm, or if he or she fails to pass the background check, the person must relinquish the firearm and, if the firearm is an otherwise legal firearm and the person otherwise has the right to title of the firearm, he or she may relinquish it by selling it or transferring title to a licensed dealer.19
- Cal. Penal Code § 28220(b). [↩]
- Cal. Penal Code § 28205. [↩]
- Cal. Penal Code §§ 16400, 26815, 28215. Note that dealers are prohibited from transferring handguns to persons under age 21, or any other firearm to persons under the age of 18. Cal. Penal Code § 27510. [↩]
- Cal. Penal Code § 28180. [↩]
- Id. [↩]
- Cal. Penal Code § 28220(a). [↩]
- Cal. Penal Code § 28220(a). [↩]
- Cal. Penal Code § 28220(c). [↩]
- Cal. Penal Code § 26815(d). [↩]
- Id. [↩]
- Cal. Penal Code § 26845. [↩]
- Cal. Penal Code §§ 26815(a), 27540(a). [↩]
- Cal. Penal Code § 28220(f)(1)(A). If this occurs, the dealer must then provide the purchaser with information about the manner in which the purchaser may contact DOJ regarding this delay. Cal. Penal Code § 28220(f)(1)(B). [↩]
- Cal. Penal Code § 28220(f)(4). If DOJ is able to ascertain a final disposition within 30 days, then it must either notify the dealer that the purchase may immediately go through, or it must notify the dealer and local law enforcement that the person is prohibited from possessing a firearm, depending on the final result. Cal. Penal Code § 28220(f)(3). [↩]
- Cal. Penal Code § 30105. [↩]
- Cal. Penal Code § 30105(h). [↩]
- Cal. Penal Code § 30105(b). [↩]
- Cal. Penal Code § 33850. [↩]
- Cal. Penal Code §§ 33850(b), 33870(a). [↩]
- See Cal. Penal Code § 27545 et seq. [↩]