mental health prohibitors and sham transfers

18 U.S.C.S. § 922(g)  and CA state law prevents a court from ordering the sale or other transfer of a prohibited person's guns to someone willing to give them access to them or to accede to their later requests to gain access for future use. In such a case, the prohibited would have control over the guns, even though legally person maintained physical custody. This falls under constructive possession which is also foreclosed under federal law. The concept behind constructive possession is designed to preclude just such a loophole. By ensuring the law addresses "puppets" and "puppeteers". A prohibited person cannot evade the strictures of § 922(g) by arranging a "sham" transfer that leaves him effectively still in control of his guns. And because of the import of the Brady Act, a court may no more approve such a transfer than order the return of the firearms to the felon himself. Henderson v. United States (2015) 575 U.S. 622, 622 [135 S.Ct. 1780, 1781, 191 L.Ed.2d 874, 874]. 


Possession may be imputed when the firearm is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control, or to the joint dominion and control of the prohibited person and another non prohibited person. The person need not be found in actual possession like with the firearm in his hands or house. If he can knowingly wield power and has any intention at any given time to exercise dominion or control over it, either directly or through another person that shall suffice.




A court when presented with a motion to transfer a newly prohibited person's firearms to a third party may only approve the transfer that comports with 18 U.S.C.S. § 922(g) if and only if, that disposition prevents them from later exercising control over those weapons, so that he could either use them or tell someone else how to do so.


Because CA is ranked an "A" from Giffords, it is unlikely the courts will simply "seek certain assurances: by asking the proposed transferee to promise to keep the guns away from the prohibited person, and to acknowledge that allowing him to use them would aid and abet a § 922(g) violation". 


The CA BOF remains silent as to whether they conduct in person interviews, background checks, or home checks on the proposed transferee to ensure they have no personal connection indicative of whether they would allow the prohibited person to access the firearms later. 


Precedent has established that states have the sovereign right to protect the general welfare of the people through the exercise of their police power. Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 503 (1987). States have a vested interest in the protection of the public thus they are afforded “great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons.” Medtronic, Inc. v. Lohr, 518 U.S. 470, 475 (1996) (internal quotations omitted). California has long recognized that regulation of firearms is a proper exercise of that police power, and discretion courts and police maintain over who a transferee may be does not constitute an abuse of power. City of San Diego v. Boggess, 216 Cal. App. 4th 1494, 1505 (2013) Federally speaking, neither Heller nor McDonald are to be interpreted to cast aspersions on the already “presumptively lawful” longstanding regulatory measures upholding “prohibitions on the possession of firearms by felons and the mentally ill”. Transferees fall under such regulations as courts have regularly upheld that is a direct nexus between sham buyers and prohibited persons. Abramski v. United States, 134 S. Ct. 2259, 2267 (2014). 


Drawing from the legal underpinnings controlling 18 U.S.C § 922(a)(6), the law bars material misrepresentations “in connection with the acquisition,” and not just the purchase, of a firearm. That broader word, acquisition, has direct connection to a transfer from a prohibited person to a friend or relative. As Abramski holds, the law does not focus solely on “legal title” as a legal title can last only for few short moments, until another, the one whom the intended transfer is for takes possession rendering the legal title moot. The background of each person who applies to gain possession of the firearm must be investigated as a "not prohibited" sham transferee is not anymore lawfully allowed to possess the firearm than the prohibited person themselves. So within the clarifying perimeters established by Abramski and Heller, each person who may come into actual or constructive possession of the firearm is material and relevant to the case, and a court is not abusing its discretion or violating the second amendment by conducting such inquiries.