FOPA Safe Passage:
Theory vs Practice in California

I'm driving through California with firearms that are legal in my home state. Does FOPA protect me?

What FOPA Says

18 U.S.C. Section 926A^[1] provides that a person "shall be entitled to transport a firearm" if it is unloaded and neither the firearm nor any ammunition is readily accessible or directly accessible from the passenger compartment. In a vehicle without a compartment separate from the driver's compartment, the firearm or ammunition must be in a locked container other than the glove compartment or console. The person must be traveling from a place where they may lawfully possess and carry the firearm to another such place.

FOPA is an affirmative defense, not immunity from arrest. The statute provides that a person "shall not be arrested or otherwise detained" for mere transport, but this language has been interpreted narrowly by courts in restrictive states. The traveler must prove they meet all statutory conditions.

California's Complications

California defines "locked container" in Penal Code Section 16850^[2] as "a secure container that is fully enclosed and locked by a padlock, keylock, combination lock, or similar locking device." This is consistent with FOPA's requirements. However, several California-specific issues create practical risks:

Assault weapons: Firearms that are legal in other states may be classified as "assault weapons" under Penal Code Sections 30510-30530^[3]. Section 926A protects transportation notwithstanding contrary state law when the traveler is not federally prohibited, may lawfully possess and carry the firearm at both endpoints, has a lawful purpose, and meets the unloading and storage conditions. A semiautomatic centerfire AR-15 with a pistol grip that protrudes conspicuously beneath the action and a detachable magazine, legal for an eligible owner in Arizona or Nevada, is an assault weapon in California. Transporting one through California, even locked and unloaded, risks felony charges under Penal Code Section 30600 (up to 8 years imprisonment).

Large-capacity magazines: Penal Code Section 32310 generally prohibits importing, buying, receiving and possessing large-capacity magazines, defined in Section 16740 as ammunition feeding devices that can accept more than 10 rounds, with specified exclusions and exceptions (subject to ongoing litigation in Duncan v. Bonta). FOPA's safe passage arguably does not protect prohibited accessories. An out-of-state traveler carrying standard 17-round Glock magazines could face charges even with the firearms properly locked and unloaded.

Ammunition: California requires ammunition purchases to go through a licensed vendor with a background check (Penal Code Section 30352). FOPA does not clearly address ammunition transported separately from firearms.

Practical Enforcement Risks

A traffic stop that reveals firearms, even properly stored, can lead to detention while officers consult supervisors or prosecutors. California requires a Law Enforcement Release application for the return of a firearm held by a court or law enforcement agency. DOJ conducts an eligibility check and mails the results to the applicant, who must present the notice to the court or law enforcement agency within 30 days of its date.

The Second Circuit's decision in Torraco v. Port Authority, 615 F.3d 129 (2d Cir. 2010), while not binding in the Ninth Circuit, illustrates the risk of arrest. The court rejected the travelers' false-arrest claims because officers had probable cause to believe New York law had been violated and FOPA's requirements were not met. Extended stops in California, such as an overnight hotel stay, could theoretically be argued to break the "traveling through" requirement.

Bottom Line

Settled: FOPA provides a federal affirmative defense for transporting legally owned firearms through California if all conditions are met. California's locked container definition is consistent with FOPA.

Unsettled: Whether FOPA preempts California assault weapon and LCM laws for travelers in transit. What constitutes an impermissible "stop" that breaks continuous travel. Whether California law enforcement must honor FOPA's "shall not be arrested" language in practice.

Do: If transiting California, ensure firearms are unloaded, locked in a container in the trunk (not passenger compartment), with ammunition stored separately. Remove or leave behind any magazines exceeding 10 rounds and any firearms that could be classified as assault weapons under California law. Do not make extended stops. Carry documentation of your origin and destination.