NRA and CRPA attorneys recently received further clarification from the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) regarding the use of non-REAL IDs when purchasing a firearm at a California licensed firearms dealer. According to ATF, California licensed firearm dealers:

[M]ay accept post-January 22, 2018 licenses/identification documents that meet the definition in 18 U.S.C. 1028(d) in fulfilling their requirements under 18 U.S.C. 922(t)(1)(C) and 27 CFR 478.124(c)(3)(i). However, licensees may consider asking for additional documentation (e.g., passport) so that the transfer is not further delayed.

As a result, California residents who are issued non-REAL IDs after January 22, 2018, by the California Department of Motor Vehicles (“DMV”) may use their IDs for the purposes of purchasing a firearm, even if the ID contains the language “FEDERAL LIMITS APPLY” on the front of the license and states on the back of the license that “This card is not acceptable for official federal purposes.”

Prior ATF Open Letter to Dealers Rescinded

ATF also informed NRA and CRPA attorneys that the letter issued in June of 2016 concerning “FEDERAL LIMITS APPLY” licenses, will be rescinded. A recent review of the ATF website for the letter states “Page Not Found.”

Pursuant to AB 60, the California Department of Motor Vehicles (“DMV”) may issue licenses and identification cards to individuals who cannot prove legal status in the United States. The licenses and identification cards issued pursuant to AB 60 stated “FEDERAL LIMITS APPLY” on the front of the card making them distinguishable from licenses issued to U.S. citizens.

Federal law prohibits those who are illegally in the United States from receiving and possessing firearms. In June 30, 2016, ATF sent a letter to firearm dealers informing them they could not transfer firearms to individuals using AB 60 licenses (licenses with “FEDERAL LIMITS APPLY” on their front) due to the likelihood the individual was in the country illegally and thus prohibited from receiving and possessing firearms.

Recently California started to implement the federal REAL ID Act, which requires state-issued licenses and identification cards to meet federal requirements for verification. AB 60 licenses do not meet these requirements. On January 22,108, DMV started issuing licenses to people who did not apply for or go through the process to acquire a REAL ID. Unfortunately, after January 22, 2018, the licenses issued pursuant to AB 60 and those issued to Californians who didn’t apply for a REAL ID state on their face “FEDERAL LIMITS APPLY,” and thus, according to the June 30, 2016 ATF letter, are unacceptable for firearm purchases.

Presumably this problem was corrected by DMV. ATF initially stated that licenses issued pursuant to the AB 60 undocumented individuals differed from those issued to U.S. citizens because on the back of the AB 60 licenses the license stated, “This card is not acceptable for official federal purposes.” Thus, there would be a way to differentiate between licenses issued pursuant to AB 60 and to U.S. citizens who did not apply for a REAL ID license. Unfortunately, this information was incorrect as both AB 60 licenses and the licenses issued to U.S. citizens stated, “This card is not acceptable for official federal purposes” on the reverse side.

NRA and CRPA attorneys pointed this concern out to ATF soon after it was discovered. ATF now realizes that they cannot avoid this problem as these licenses with the same language on the front and back are sent out to U.S. citizens and undocumented individuals alike. Thus, ATF’s position changed, and they are withdrawing the June 30, 2016 letter concerning “FEDERAL LIMITS APPLY.”

Lingering Concerns

Not all “FEDERAL LIMITS APPLY” licenses can be used to acquire firearms. Licenses issued prior to January 22, 2018 with “FEDERAL LIMITS APPLY” on them were likely issued to individuals who cannot show lawful citizenship status. Firearm dealers are strongly advised to insist on an additional form of identification before accepting a license issued before January 22, 2018 with “FEDERAL LIMITS APPLY” marker.

Licenses issued after January 22, 2018 that state “FEDERAL LIMITS APPLY” may or may not have been issued to a person who is within the United States illegally. If a firearm dealer has cause to believe the individual using one of these licenses may be prohibited from possessing firearms, as ATF suggests, the dealer may want to consider asking for additional documentation.

Californians who want to make sure they have zero problems purchasing a firearm in the future may want to consider applying for and acquiring a REAL ID through the DMV. Remember these licenses can be used to board airplanes, gain access to military bases, and other federal facilities in 2020. Californians will not be able to use their non-REAL IDs for these purposes after 2020 and will be required to provide some other form of identification.

California licensed firearm dealers should be aware, however, that the California Department of Justice (“DOJ”) may nonetheless continue to hold the position that any “FEDERAL LIMITS APPLY” licenses cannot be used for the purposes of purchasing a firearm. That position is an unlawful overreach because the question of lawful presence in the United States as it relates to firearm purchases falls directly under ATF’s control. Under California law, one only needs to provide “clear evidence of the person’s identity and age” when attempting to acquire a firearm from a California licensed dealer. “Clear evidence” is defined as a valid California Driver’s License or Identification Card. Because both AB 60 licenses and non-REAL IDs are considered valid California identification, regardless if they satisfy federal requirements or not, both satisfy California’s requirement of “clear evidence of the person’s identity and age.” In addition, ATF has informed NRA and CRPA attorneys that they will be rescinding their previous policy prohibiting the use of such licenses.

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