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2nd Amend. Litigation Updates & Legal Discussion Discuss California 2A related litigation and legal topics here. All advice given is NOT legal counsel.

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  #121  
Old 01-13-2013, 11:19 AM
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Quote:
Originally Posted by kemasa View Post
BTW, it is best to remember that this forum is PUBLIC. This means that you have to assume that anyone and everyone is reading this and I know that the CA DOJ and BATF have people who read these forums.

This means that you don't want certain aspects made public so that the other side can plan a defense or bogus claim in advance of any action. While you might want to know, it does not serve the best interest of yourself, as well as others, for those who are involved in taking action to publicly post their game plan.
Thank you, but I think that Brandon is quite capable of handling his own dissemination of information by himself.
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  #122  
Old 01-13-2013, 11:22 AM
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Wow, didn't know this was going on. Watching n reading.
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  #123  
Old 01-13-2013, 11:30 AM
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Originally Posted by mrdd View Post
Thank you, but I think that Brandon is quite capable of handling his own dissemination of information by himself.
You missed the point completely.
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  #124  
Old 01-13-2013, 5:02 PM
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Originally Posted by kemasa View Post
You missed the point completely.
No, I did not. I made a couple of observations about the state law, which the DOJ is already well aware of.

I think we should just leave it there.
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  #125  
Old 01-13-2013, 5:07 PM
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Originally Posted by mrdd View Post
No, I did not. I made a couple of observations about the state law, which the DOJ is already well aware of.

I think we should just leave it there.
Yes, you did, you wanted an explanation on a public forum.
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  #126  
Old 01-13-2013, 6:52 PM
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I have not tangled with the DOJ in my previous DROSes, so pardon my ignorant questions, but:

On what basis can any entity use merely an arrest record for denying someone an explicitly granted and protected right? That would seem to be an obvious violation of the principle that one is innocent until proven guilty, and seemingly due process too (though I have no law degree). If the DOJ can't actually deny a DROS simply because you have been arrested without later being convicted for the same offense, but then why is DOJ allowed to examine arrest records at all? I'm SURE landlords cannot deny tenant applications because of arrest records and would probably get sued to high hell for doing so.

I'm sure the DOJ would say that the conviction databases are sometimes incomplete, so they use the arrest record to find the relevant case and don't deny anyone simply because of an arrest, but I'd maintain the government's ineptitude at maintaining adequate records is not an excuse for a due process violation. If a prosecuting attorney cannot get a case together in a reasonable amount of time, does the right to a speedy trial also go out the window?

Of course I'm not in the DOJ offices, but from reading the anecdotes here, it sounds like anyone who has ever been arrested (including for an outstanding parking infraction) automatically gets flagged and put in a separate pile that they are not even looking at right now while they clear all of the people whose records come up blank first. This is why some people have no delay and others are in an indefinite holding pattern. While this prioritization is expedient for the DOJ, it seems legally fishy to unequally apply things, especially for those flagged for something that, on its own, would not even come close to disqualifying someone from owning a firearm.

I am all for denying criminals, especially violent ones, from owning firearms, but, really, arrest records should be sealed without a court order and expunged completely after 3 years or some short period of time.

Last edited by rritterson; 01-13-2013 at 6:58 PM..
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  #127  
Old 01-13-2013, 6:55 PM
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Originally Posted by kemasa View Post
Yes, you did, you wanted an explanation on a public forum.
So? We were having a discussion. When Brandon indicated he did not want to discuss it further, the point was dropped.

Are you saying we should just close up the whole forum and go home?
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  #128  
Old 01-13-2013, 6:57 PM
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No, I am saying you should consider what should not be discussed in public. Also, look how you asked him to explain.
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  #129  
Old 01-13-2013, 7:12 PM
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So I still can't figure why I am on delay. Clean DMV record. No arrests. And I have bought 12 other firearms this year. One 3 days before this one.
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  #130  
Old 01-13-2013, 11:05 PM
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After 25 years of firearm purchases I was hit with a DOJ "delayed status" last week. Called and got an "excuse" about an event 24 years ago that had no disposition. Never came up once during numerous DROS's before.
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  #131  
Old 01-14-2013, 6:17 AM
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Originally Posted by rritterson View Post
On what basis can any entity use merely an arrest record for denying someone an explicitly granted and protected right? That would seem to be an obvious violation of the principle that one is innocent until proven guilty, and seemingly due process too (though I have no law degree). If the DOJ can't actually deny a DROS simply because you have been arrested without later being convicted for the same offense, but then why is DOJ allowed to examine arrest records at all? I'm SURE landlords cannot deny tenant applications because of arrest records and would probably get sued to high hell for doing so.
See ATF Form 4473, q. 11b. If there is no disposition, CalDOJ cannot (apparently) determine if you have been charged with a felony, whether those charges are still pending, etc. CA has to clear you both for the state and the Fed requirements.
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  #132  
Old 01-14-2013, 10:32 AM
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10:30 on January 14th, and the message is still the same...
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  #133  
Old 01-14-2013, 1:48 PM
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Just got off the phone. They are not going to take calls for at least another two weeks and there is nothing that could be done to speed it up or even have a case looked at. They are too busy doing current purchases to even look at any of the backlog right now.
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  #134  
Old 01-14-2013, 1:54 PM
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Does anyone know if you can legally cancel a DROS and have the gun shipped to an FFL in another state? I am a TN resident and they don't require a wait for rifles, so I could pick it up there with no problem...Just trying to find a way to not keep waiting for a gun that never should have been delayed in the first place!
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  #135  
Old 01-14-2013, 2:04 PM
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Everyone go to this page and call your Representative http://senate.ca.gov/senators.

I just got off the phone with Marty Block's office and recommended that they propose a law that states if a background check can not be performed in a reasonable amount of time such as 2 months then the firearm should be released. I figure if we can be squeaky and loud enough then we can raise even more awareness about these injustices.
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  #136  
Old 01-14-2013, 2:09 PM
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Quote:
Originally Posted by edwardm View Post
See ATF Form 4473, q. 11b. If there is no disposition, CalDOJ cannot (apparently) determine if you have been charged with a felony, whether those charges are still pending, etc. CA has to clear you both for the state and the Fed requirements.
I don't think that matters. The question on the form is whether you are under indictment for a felony offense. In other words, are you currently being prosecuted. I have to believe that if the answer is yes, the court is going to have the info readily available. If the court does not have the info, the answer must be no.
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  #137  
Old 01-15-2013, 11:05 AM
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Originally Posted by gigglemonkee View Post
Everyone go to this page and call your Representative http://senate.ca.gov/senators.

I just got off the phone with Marty Block's office and recommended that they propose a law that states if a background check can not be performed in a reasonable amount of time such as 2 months 10 days then the firearm should be released. I figure if we can be squeaky and loud enough then we can raise even more awareness about these injustices.
There I fixed it for you - seems that the state finds 10 days reasonable.
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  #138  
Old 01-15-2013, 2:55 PM
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Originally Posted by mrdd View Post
I don't think that matters. The question on the form is whether you are under indictment for a felony offense. In other words, are you currently being prosecuted. I have to believe that if the answer is yes, the court is going to have the info readily available. If the court does not have the info, the answer must be no.
If the rap sheet shows a case with no disposition, there is no way to know if the case is still open. So you may or may not be under indictment and the computer doesn't know, which means the fleshling looking at the computer doesn't know which leads to a hold/deny/no-go/etc.

Arrest records are another matter, though.
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  #139  
Old 01-15-2013, 2:58 PM
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Just talked again and got the following numbers from DOJ. No checks for delayed guns have been done since before black friday. There are 14 analysts and 4 supervisors who have authorization to do checks. They started working on the backlog yesterday afternoon and hope to do a few hundred a day although there is a backlog of over 15000 delays.
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  #140  
Old 01-15-2013, 3:23 PM
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Originally Posted by edwardm View Post
If the rap sheet shows a case with no disposition, there is no way to know if the case is still open. So you may or may not be under indictment and the computer doesn't know, which means the fleshling looking at the computer doesn't know which leads to a hold/deny/no-go/etc.

Arrest records are another matter, though.
Holding someone under indictment indefinitely would be a violation of the 6th amendment.

Lack of disposition should not matter. If there is no active prosecution, there is no indictment.
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  #141  
Old 01-15-2013, 3:33 PM
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Originally Posted by edwardm View Post
If the rap sheet shows a case with no disposition, there is no way to know if the case is still open. So you may or may not be under indictment and the computer doesn't know, which means the fleshling looking at the computer doesn't know which leads to a hold/deny/no-go/etc.

Arrest records are another matter, though.

I would agree with that if the arrest was in the past year...but mine was in 1995 (and there are other people who are older than that) with no disposition because it never went to court...if they are hiring people that can't understand that a case is not still pending after 18 years, then we have bigger problems!
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  #142  
Old 01-16-2013, 1:45 PM
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87th day in DROS and now have three different answers from three different people.

Issue for delay - My records have not been updated with the DOJ - Disposition change on a 1997 case on October 22, 2012.

DOJ Field Agent - Just get a certified copy of the disposition order and have court fax the DOJ (then he gave me the fax number).

Attorney listed on Cal Guns Foundation - Just fill out form 8706 (he emailed me the form) and mail it to the DOJ (Records and Review Dept), along with a certified copy of the court order and a letter describing why I am sending them this information.

My contact in the DROS division - says DOJ Agent is wrong . . . that is the DROS division fax number and they will NOT make any record changes, as ordered by the division director.

- says Attorney is wrong - DOJ has to start the process, so it can be logged with a CII#, as initiated with a Live Scan and it's the only way the DOJ will accept outside source records.

- then says Records and Review Dept has not updated any information - this goes for thousands in my same position. Only way to have them update is a Live Scan, Request for RAP sheet and then file a 8706 form to have a review on inaccurate information.

I have no idea what to do or where to start the process. The local courts sent my disposition to the DOJ electronically on 10/22/12, to which MY attorney stated I could now make a new gun purchase.

Suggestions or comments very welcome . . . because after 87 days, I am completely frustrated and tired with this process. Calgunners, I ask for your help.
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  #143  
Old 01-16-2013, 7:15 PM
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Default Friend got denial

Hey Guys,

One of my friend and I went into purchase a handgun each. Mine went through with flying colors but he got the call from the shop that DOJ sent them a hold on his DROS.

My friend called several times but the person at the other end said he would receive a letter in the mail as in why he is not allowed. The person at DOJ hinted that it might have been his red light ticket that he failed to pay.

Been over a month, his gun went back for sale, lost "restocking fee", and still no letter from DOJ.

He is freaking out that he can not own guns.

Any idea how long it takes for him to get the letter?
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  #144  
Old 01-17-2013, 5:29 AM
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Originally Posted by BHLiu11 View Post
Been over a month, his gun went back for sale, lost "restocking fee", and still no letter from DOJ.
I am confused by this. Did he not already pay for the gun? Unless he is actually denied, the FFL has no cause to put the gun back up for sale.
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  #145  
Old 01-17-2013, 7:00 AM
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Originally Posted by mrdd View Post
Holding someone under indictment indefinitely would be a violation of the 6th amendment.

Lack of disposition should not matter. If there is no active prosecution, there is no indictment.
Jurisdictional issues of the court would not necessarily implicate the 6th Amendment.

You're not getting it. CalDOJ is looking at a computer screen with a piece of information. They don't know the background. Usually because courts have been bad about sending CalDOJ updates. I deal with this problem *regularly*.
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  #146  
Old 01-17-2013, 7:02 AM
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Originally Posted by cuat_420 View Post
I would agree with that if the arrest was in the past year...but mine was in 1995 (and there are other people who are older than that) with no disposition because it never went to court...if they are hiring people that can't understand that a case is not still pending after 18 years, then we have bigger problems!
They aren't going to second-guess the data (or lack thereof) on the screen. That is not their job. For an arrest in 1995 I am actually NOT surprised you are running into this problem. The CalDOJ databases are notoriously incomplete.
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  #147  
Old 01-17-2013, 8:16 AM
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I bought a used AR 50 Beowulf on the 4th of Jan. and picked it up yesterday...no DROS holdup at all. I'm picking up a Ruger LC9 today that I also purchased on the 4th.

Last edited by Grizzerman; 01-17-2013 at 8:23 AM..
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  #148  
Old 01-17-2013, 9:23 AM
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mrdd .... He paid for it in full .. The response from the gun shop was that since he did not pick up within 30 day and his DROS was delayed, he can either re DROS or && get refunded. Since he was in a limbo, he decided to take the $$ back and lost 10% restocking fee. I even offered to buy so that my friend will not lose $ 50 for no reason and the shop said no.

I am very sure that the shop did that due to supply and demand issues. I have no doubt that the gun went back on sale with higer price.

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I am confused by this. Did he not already pay for the gun? Unless he is actually denied, the FFL has no cause to put the gun back up for sale.
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  #149  
Old 01-17-2013, 6:03 PM
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They aren't going to second-guess the data (or lack thereof) on the screen. That is not their job. For an arrest in 1995 I am actually NOT surprised you are running into this problem. The CalDOJ databases are notoriously incomplete.
I don't disagree that their databases are incomplete. The problem is, before April of last year, people who have been buying/selling guns for 20+ years never had a problem...same DROS process involved on numerous occasions. Now, all of the sudden, these "issues" are surfacing? Really? How does someone buy 4 guns in a 1 week period and have two delayed and two approved? How does someone get a delay 8 months ago, the DOJ clears it and releases it, doesn't surface a s a problem for the next 8 months, now the same charge the DOJ already cleared is a problem again?

The problem is their inconsistency and lack of information to the customer on the cause for the delay and how to prevent this from being a problem in the future. I provided them the required disposition paperwork, and they were certified copies. They will neither confirm nor deny they have received them, nor do I even know if they will accept them from me vice the courts. I have asked if I can give them information to verify my active top secret clearance...nope, just wait. My arrest was in another state with my previous drivers license info, and it literally took my 6 hours on the phone with more than a dozen people to track the information down...is the DOJ going to do this? Doubtful...it will end up denied because they don't have time to keep digging. Sorry for the rant, but it is obvious that the system is SEVERELY flawed and the law abiding citizens are paying for it.
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  #150  
Old 01-17-2013, 6:23 PM
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Cuat, I believe this is happening on purpose. It is their attempt to keep legal people from purchasing more guns. I am going thru the same problem. The only thing in my past was in 1972 and all charges were dropped when investigated. I have been in Ca., for over 3 years now and this is my 5th purchase from the same FFL. I Lived in Va., for 50 years and never had this happen EVER. I am thinking about moving to a state that actually cares how they treat normal people.
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  #151  
Old 01-17-2013, 6:47 PM
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Cuat, I believe this is happening on purpose. It is their attempt to keep legal people from purchasing more guns. I am going thru the same problem. The only thing in my past was in 1972 and all charges were dropped when investigated. I have been in Ca., for over 3 years now and this is my 5th purchase from the same FFL. I Lived in Va., for 50 years and never had this happen EVER. I am thinking about moving to a state that actually cares how they treat normal people.

I wish I had that option right now. 16 years active duty, and my last 4 will be here in California...at which point I will DEFINITELY be going back to the Tennessee area!
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  #152  
Old 01-18-2013, 3:03 AM
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Originally Posted by BHLiu11 View Post
mrdd .... He paid for it in full .. The response from the gun shop was that since he did not pick up within 30 day and his DROS was delayed, he can either re DROS or && get refunded. Since he was in a limbo, he decided to take the $$ back and lost 10% restocking fee. I even offered to buy so that my friend will not lose $ 50 for no reason and the shop said no.

I am very sure that the shop did that due to supply and demand issues. I have no doubt that the gun went back on sale with higer price.
If he was delayed and not denied, there is no need to redo the DROS. A delay holds everything until the DOJ finishes the check.

Perhaps what happened is that the shop has a policy that if you are denied, you lose all your money? So, he got nervous and decided to get back most of his money now, rather than lose it all later? The problem is good luck resolving the issue with the DOJ without a DROS in progress.
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  #153  
Old 01-18-2013, 9:48 AM
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Has anyone been able to confirm or deny with absolute certainty on the way that CADOJ will accept documents proving the disposition of charges? I was told by one of the people who answered the phone that it just needs to be faxed to the number she provided, with attn to Loretta who is supposedly the person who is handling my case. That was done on 21Dec, yet they wont confirm receipt. It looks like the post above states that it can only come from the government agency which handled the charges originally...has anyone sent stuff in and had the weapon released?
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  #154  
Old 01-18-2013, 11:02 AM
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Default Been approved Finally

WOW, I just got a call from my FFL and I have been approved so off I go to pick up my (evil nasty rifle) 10-22 takedown. Good luck to the rest of you guys on this. It is a cluster **uk for for law abiding citizens of this state. I am probably going to DROS another one right away just to see what happens after this one.
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  #155  
Old 01-18-2013, 11:17 AM
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How long were you delayed for?
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  #156  
Old 01-18-2013, 11:51 AM
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Originally Posted by gigglemonkee View Post
Everyone go to this page and call your Representative http://senate.ca.gov/senators.

I just got off the phone with Marty Block's office and recommended that they propose a law that states if a background check can not be performed in a reasonable amount of time such as 2 months then the firearm should be released. I figure if we can be squeaky and loud enough then we can raise even more awareness about these injustices.
The background check is completed before you even leave the FFL. DOJ is just using any excuse they can to deny you your rights.
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  #157  
Old 01-18-2013, 11:58 AM
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mrdd .... He paid for it in full .. The response from the gun shop was that since he did not pick up within 30 day and his DROS was delayed, he can either re DROS or && get refunded. Since he was in a limbo, he decided to take the $$ back and lost 10% restocking fee. I even offered to buy so that my friend will not lose $ 50 for no reason and the shop said no.

I am very sure that the shop did that due to supply and demand issues. I have no doubt that the gun went back on sale with higer price.
No, they wouldn't sell it to you for fear of it being a straw purchase since your friend had attempted to buy it and was denied.
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Oppressors can tyrannize only when they achieve a standing army, an enslaved press, and a disarmed populace. -- James Madison

The Constitution shall never be construed to authorize Congress to prevent the people of the United States, who are peaceable citizens, from keeping their own arms. -- Samuel Adams, Debates and Proceedings in the Convention of the Commonwealth of Massachusetts, 86-87 (Pearce and Hale, eds., Boston, 1850)
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  #158  
Old 01-18-2013, 3:17 PM
clbshooter clbshooter is offline
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Hey gigglemonkey, I bought it on Black friday and was delayed, on the 8th day of DROS, so longer than it should be. What is amazing is that I paid in full the same day I bought it then they wanted to charge me the addl tax since in went up Jan 1st. I told them if the needed the .74 cents that bad send a bill to Ca. D.O.J. maybe they will pay since it was their fault. I explained to them that this was my 5th purchase thru them without a hickup before this and that I am sorry I will not pay. They made up the diff.
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Old 01-18-2013, 6:41 PM
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Originally Posted by clbshooter View Post
Hey gigglemonkey, I bought it on Black friday and was delayed, on the 8th day of DROS, so longer than it should be. What is amazing is that I paid in full the same day I bought it then they wanted to charge me the addl tax since in went up Jan 1st. I told them if the needed the .74 cents that bad send a bill to Ca. D.O.J. maybe they will pay since it was their fault. I explained to them that this was my 5th purchase thru them without a hickup before this and that I am sorry I will not pay. They made up the diff.
So hypothetically speaking, I should be close to at least having them review mine...My purchase was on Dec 6 and Delay was Dec 12th, so IF (big if) they are going in order of when they we're received/delayed, I wouldn't be too far behind. Either way, this is great news, as we now know they are looking at the delays!!
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Old 01-18-2013, 7:26 PM
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I've been delayed since Oct. 22, 2012. I will have my certified copy of the court order to change disposition on Monday. I am going to fax it, mail it with a form and do a live scan on Friday, if I haven't heard anything.

I am very surprised some attorneys aren't weighing in on how to deal with the DOJ properly. Or those that have been on delay, sent in some info and got an approval. Please, please, please . . . someone provide some clear way to deal with the DOJ.

- PH (89th day of DROS )
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