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Fire at will:

This critique of the 2022 (9th) edition of “California Gun Laws” by C.D. “Chuck” Michel and Matthew D. Cubeiro is not a critique of the entire book, but only a small portion consisting of two sections, Section 3 (“Operation of Law” Transfers Other Than Transfers Between Spouses Involving Transmutation of Property) and Section 4 (Gun Trusts), together spanning pages 185 through 194, all within Chapter 5 (Obtaining Firearms and Ammunition), Part VII (Exceptions to Transferring Firearms Through a Federal Firearms Licensee in California), Subpart B (California Law).

[Note also that p. 141 misleads in its description of the Firearm Safety Certificate exemption at PC § 31700(b)(7)-(13). The description lists “trustee of a trust” as an example of someone exempt, but that particular exemption does not cover trustees of common living trusts, only the relatively rare testamentary (will-based) trusts, and court-supervised trusts. The mixup here is similar to, and related to, another mixup detailed below.]

In short, they really screwed up these two sections. I have not yet read the rest of it, nor have I reviewed prior editions as it has been several years since the last copy I purchased prior to the big changes brought by passage of AB 1292 in 2019, which drive this discussion. The firm did consult with me briefly in preparation of its “Gun Trust Booklet,” but that was back in 2016. While they consulted with me on some things, I learned much more from them. It was a real eye opener for me about how little I knew about actual gun laws in our Penal Code and how risky uncertainties persist because estate planning attorneys lack understanding of gun laws and gun lawyers (largely criminal lawyers) lack understanding of estate planning. Based on this new knowledge plus my own independent review of our Penal Code, for a three year period until passage of AB 1292 I actually advised gun owners to generally avoid placing guns in trust during life, and I designed an alternate way of getting guns into trust after death. Some other “gun trust” attorneys ignored my advice, but my concerns were validated by AB 1292, passage of which eliminated my concerns for the most part.

At the risk of ignoring “Gell-Mann Amnesia Effect” I will say right now the rest of this book so many of us have relied on for so many years is just as great as we have always known it to be, and updates will continue its impressive scope and accuracy. This is not a slam against the entire book or of Chuck Michel’s firm, which is undoubtedly one of the finest litigation law firms in the country, especially known for defending gun rights but also successful in other areas. [Here I must point out that although Michel’s firm is considered the “dream team” for 2A, they and other top 2A lawyers, as well as most gun orgs, repeatedly took litigation positions throwing open carry under the bus, ready to ditch it to save concealed carry. Over the years, “CCW supremacists” in the gun orgs supported various restrictions on open carry. Ultimately, supporters of open carry were proven right with the Supreme Court’s NYSRPA v Bruen opinion which, while protecting both open carry and concealed carry, included very strong dicta indicating that open carry is indeed the superior right.] Over the years I have purchased several editions of this book and it has been a bible of sorts to help me follow California’s confusing gun laws. It has also helped me as a concealed carry instructor and even as a lawyer helping gun owners plan their estates. At the very least, the book is, overall, a great starting point, and does an excellent job of keeping us up-to-date, in a concise way, on an extremely complicated subject with a lot of moving parts. There is no substitute for this book. Every California gun owner should have one, and should be grateful to the authors for updating it regularly.

But the authors are not estate planning attorneys and it is necessary to correct serious errors in these two sections.

Operation of Law Definitions Confuddled

The biggest blunder appears on page 186 which lists sixteen (16) different types of transactions where an individual receives title to or possession of a firearm by operation of law, stating that these are the categories of transactions exempt from the general requirement of using a dealer to complete the transaction (quote below is abbreviated):

(1) The executor, personal representative, or administrator…;

(2) A secured creditor…;

(3) A levying officer;

(4) A receiver…;

(5) A trustee in a (sic) bankruptcy…;

(6) An assignee…;

(7) A transmutation…;

(8) The transfer of a firearm by a law enforcement agency to the person who found…;

(9) A firearm received by a (sic) family of a police officer…;

(10) The trustee of a trust that includes a firearm and that was part of a will that created the trust;

(11) A person acting pursuant to the person’s power of attorney;

(12) A limited or general conservator appoint (sic) by a court;

(13) A guardian ad litem…;

(14) A trustee of a trust that includes a firearm that is under court supervision;

(15) A special administrator…; and

(16) A guardian appointed by a court.

Problem is, while they cited in the footnotes the correct statute regarding exemption from statute requiring dealer processing (PC 16990), the transaction types they listed are from a different statute!

There are two statutes defining “operation of law” with two similar, yet not identical, lists of transaction types. (PC 16990 lists a total of nineteen, not sixteen.) The other statute (PC 16960), also important to know, has to do with exemption from the statute requiring dealer licensing (not processing). Apart from several minor typos I note above, and the statute listing the categories as (a) through (p) rather than (1) through (16), the list in the book is identical to that in PC 16960, except that for some reason the order was switched for (8) and (9).

Moreover, the footnote correctly citing PC 16990 inexplicably limits the citation to subdivisions (k) through (s), while many of the other subdivisions (a) through (j) are also highly relevant to estate planning.

The swapping of lists is understandable as the lists are similar upon first glance and the mistake might be chalked up to a law clerk snafu, except that later in section 4 the authors appear to reveal they do not really understand the interplay of the two “oplaw” definitions, as these relate to estate planning. (I discuss the interplay thoroughly in my July 2019 article here.)

On pages 189, the authors write about the oplaw definition being “amended to expressly contemplate trustees and other similarly situated individuals.” (It is not clear to me what the authors mean by “similarly situated” as the new language defines many divergent transaction types with particularity and distinction, although the statute does include the phrase “but is not limited to” as it did before AB 1292.)

On pages 189 and 190, they go on to warn that both parties must appear before a dealer when a dealer is required and because most gun owners want to retain control of their firearms but upon death cannot appear before the dealer, there is ambiguity (the so-called “slow PPT” fiction they taught me about back in 2016) and “it may be best to ensure that each transfer of the firearm (e.g., from settlor to transferee, transferee to successive transferee, and transferee to beneficiary) is done via PPT or meets one of the exceptions explained below, or otherwise occurs before the original gun owner (settlor) is deceased.” In this paragraph, the authors do not seem to have much faith that a revocable living trust can indeed conquer death; otherwise, why not proclaim the truth? Go tell it on the mountain!

Furthermore, on page 191 the authors write: “Recently in 2019, California law was amended to expressly contemplate trustees who take possession of a firearm pursuant to ‘a trust that includes a firearm and that was part of a will that created the trust,’ as well as other similarly situated individuals.” Again, no mention of using a revocable living trust, which is by far the most common device recommended for estate planning in California. Instead, the authors mention specifically only this exemption for the testamentary trust, a type of trust rarely used except as recommended backup, because it is part of a will and is therefore subject to probate.

Well it turns out that if you use the correct list from the correct statute, you find that PC 16990(q) includes in its definition of operation of law for avoidng dealer processing: “The trustee of a trust that is not referenced in subdivisions (k) or (p).” In the correct statute, (k) refers to the testamentary trust mentioned above, and (p) refers to a court-supervised trust. So PC 16990(q) is our “go-to” exemption for revocable (or irrevocable) living trusts, a realization that makes planning easier and a whole lot more effective. (As mentioned above, for a three year period before AB 1292 I generally recommended against placing guns in trust during life; the sudden shift was due not only to my improved understanding of gun transfer rules, but also my familiarity with a line of title insurance cases holding that transfer to a successor trustee is NOT by operation of law, as trusts are more akin to contract. AB 1292 removed that concern.)

There remains the issue of dealer licensing because PC 16960 has no equivalent to PC 16990(q) exempting living trusts. However, my old article on AB 1292 discusses several exemptions that may apply. Worst case, a successor trustee’s transfer to a beneficiary can be run through a dealer, but that may not be necessary. The key thing is that the transfer from settlor to successor trustee is valid under PC 16990(q). (No client of mine has ever been prosecuted for not being licensed as a dealer when transferring upon death; at least not here on earth.)

No Idea What Estate Planning Is

The other major error may appear minor to those for whom estate planning is merely giving away stuff at death. But it’s not minor, because that’s not estate planning and more than anything right now, gun owners need estate planning that works.

On page 193 the authors warn about gun trust marketers who “fail to mention, or mention later in fine print, … that California law does not allow a person inheriting an ‘assault weapon’ to keep it in California….In this respect, a ‘gun trust’ only acts as an inheritance vehicle requiring the new owner to take and possess the ‘assault weapon’ outside of California. But this is nothing novel. Nothing under California law prohibits the inheritance of an ‘assault weapon’ by bequest or intestate succession….As a result, the benefits of a gun trust are dubious when it comes to ‘assault weapons.'”

Before accepting this perfunctory verdict condemning gun trusts, you might want to take a peek at the authors’ cringeworthy description of trusts at the bottom of page 187: “Trusts are generally considered advantageous because they can help people avoid certain estate taxes and avoid the public forum of a probate court.” The authors do not understand estate planning. Only a tiny fraction of a percent of families in the US pay any estate tax. And estate planning is about so much more than mere probate avoidance. And it’s more than just giving away stuff at death.

When I draft an estate plan for a gun-owning couple, I include gun-related provisions in all major documents: the trust, the wills, the powers of attorney, etc. I usually recommend a separate gun trust only if clients are seriously interested in promoting firearm training for generations. Often, we will do a scaled-down version of that planning for multiple generations of firearm training, right there in the main trust document, without the need for a separate gun trust. Either way, it’s a gun trust. (Here is an article I recently wrote giving an overview of the many benefits of gun trust planning, highlighting firearm training as the most important benefit.) It’s about training, not giving stuff away. They might never get the guns! The guns can be passed from one trustee to the next, and made available to beneficiaries for occasional training. Most outright inheritances are squandered. Most kids (and adults) these days would not train adequately unless “forced” by incentives, that so-called hand from the grave. Personally, I do all my training in Nevada. Others go to Arizona for training. Or Texas. Or a number of other states that firearm megaschools call home. Who knows? Your kids may even move out of state! But even if they don’t, the guns can be stored for their occasional use out of state. Any natural mirror-fogging person can serve as a trustee in Nevada, for example. California is not the best place to find high-quality firearm training, not by a long shot.

Small Stuff

There are several other errors of less consequence. For example, a footnote on page 189 says “the settlor cannot be the beneficiary of a trust.” Should say “sole beneficiary.”

Although I agree that NFA trusts are no longer of much use in California (page 188), that’s not because NFA firearms are generally illegal. You can still make an AOW and perhaps buy one, though nowadays most would prefer a bullpup shotgun that doesn’t require a long-term relationship with ATF. NFA trusts are irrelevant because they are no longer needed to get around the old CLEO signoff requirement, and because in California you cannot have co-trustees that need to be insulated from strict liability for constructive possession. However, I occasionally have a client with bona fide residence in multiple states that may benefit from a multijurisdictional NFA trust.

Again, I think the rest of this book is great and you should buy it. Then rip out the pages on estate planning.