ATF Guidance or Legal Precedents Re: Liability of Web Forums

Discussion in 'Legal' started by esq_stu, Feb 8, 2016.

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  1. esq_stu

    esq_stu Member

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    Can anyone here post a cite to an ATF ruling, case law, rule preamble, or other authority addressing the liability of a web forum that on occasion strongly suspects that members/sellers are NOT FFL licensees and yet still permit "for sale" posts?

    Can anyone cite a successful prosecution for, say, 18 USC Sec. 2 (aiding and abetting) where the forum administrators strongly suspect, know, or should know, that the non-licensee sellers are "engaged in the business of dealing in firearms . . . through the repetitive purchase and resale of firearms” on the web forum but nevertheless permit the seller to post the listing?

    BTW, I'm NOT referring to THR - I haven't looked at any for sale posts here. I am an attorney but have not dealt with this area before (knowing aiding and abetting by web forums, websites, etc.). I've seen accusations and dismissals under some statutes but not under firearms laws.

    Thanks.
     
  2. Spats McGee

    Spats McGee Moderator Staff Member

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    I don't know of any statutory or regulatory authority for holding a website (or newspaper, in the case of classified ads) liable for such.

    The closest things: (a) of which I'm aware; and (b) which might put you on the right track are lawsuits against Lucky Gunner and Armslist. The Brady Campaign lost both of those:
    http://www.luckygunner.com/brady-v-lucky-gunner
    https://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/08/13/brady-campaign-loses-lawsuit-against-armslist/
     
  3. Frank Ettin

    Frank Ettin Moderator Staff Member

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    I'm with Spats McGee.

    Also, there is nothing necessarily illegal about a non-FFL offering gun for sale. You, I, or Spats -- all non-FFLs as far as I know -- are free to sell a gun or two as long as we comply with applicable law: e. g., we don't sell it to anyone we know or have reasonable cause to believe is prohibited; if the buyer is a resident of the same State as we are we comply with State law (which in my case at least requires having the transfer done by an FFL); and if the buyer is a resident of another State, we do the transfer through an FFL in compliance with the Gun Control Act of 1968.

    There is of course the issue that a non-FFL selling a gun, depending on a lot of factors, possibly being illegally engaged in the business of being a dealer in guns. However, since (as we discussed here and here) there is no "bright line" test for when a non-licensed person is engaged [illegally] in the business of a dealer in firearms, and since whether that might be true is based on an evaluation of a number of facts, it's hard to imagine when an advertising medium would be on notice, or even on inquiry notice, that an advertiser is acting unlawfully.

    But if I really had a need to fully understand the legal principles involved, in my research I'd cast my net far wider than just the gun business: has media every been held liable for the acts of advertisers, when, why, and under what circumstances. So, for example, what about allegations that the advertiser offering investment opportunities, antiques, art, etc., is engaging in fraud? Can has an aggrieved party been able to show sufficient knowledge, intent, or participation to cause the liability of the principal to spread to the advertising medium?

    I'd also spend some time looking at criminal conspiracy and "aiding and abetting" cases and the sorts of knowledge, intent, or participation required for liability to attach to an outside party.

    I'm sure that you've considered all of that. I'm just laying it out here primarily to show how lawyers approach these sorts of questions -- especially when there might a dearth of directly applicable authority.
     
  4. Spats McGee

    Spats McGee Moderator Staff Member

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  5. Ryanxia

    Ryanxia Member

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    I couldn't imagine a site being expected to tell the difference between someone engaged in doing business by buying & selling firearms and someone selling off 200 guns of their collection or continually selling because they are upgrading (both cases perfectly legal).

    Not to mention most sites that aren't region specific will say 'ships to your local FFL' so how would you know from a post like that if the seller is an FFL himself or not?
     
  6. jerkface11

    jerkface11 Member

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    Are there even that many cases where people are prosecuted for being unlicensed dealers? Much less aiding and abetting.
     
  7. Frank Ettin

    Frank Ettin Moderator Staff Member

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    I don't know what you'd consider "many", but people are prosecuted, and convicted, for being unlicensed dealers. Certainly in my research I've seen courts of appeals affirming such convictions on appeal. We'd expect more prosecutions which were resolved by plea agreements or convictions which weren't appealed.
     
  8. IL Guns

    IL Guns Member

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    In response to esq_stu I know that in IL that if I purchase X- amount of handguns within a period of time through my FFL that he is required to report me to the ATF. I know that doesn't have anything to do with unlicensed dealers on the web but in a conversation it came up with my FFL guy. Basically the way he put was that if I bought X - amount of handguns in a 30 day period then there would be a strong suspicion that I was "flipping" them, hence I was a unlicensed dealer. The way I understood it was two a month was OK but five a month and the ATF would want to chat with me. I keep it to two or less.
     
  9. esq_stu

    esq_stu Member

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    To clarify, my question is not about unlicensed dealers. I know about that.

    I'm asking about website liability for knowingly allowing the unlicensed sellers to advertize. Website admins have been prosecuted in connection with gambling, copyright infringement, and fraud carried out by forum participants. If you don't know of precedents about gun forums used improperly, that's OK. If you do, I'd be interested. Surely Armslist, Craig's list, and eBay have thought about this.
     
  10. jerkface11

    jerkface11 Member

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    How would they know someone is an unlicensed dealer?
     
  11. Spats McGee

    Spats McGee Moderator Staff Member

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    If by "they," you mean the website administrators, then their knowledge (whether they "knew or should have known") would simply be an element that the prosecutor would have to prove to the satisfaction of the jury.

    Were I that prosecutor, I can think of a couple of things right off hand that I'd go after:
    1. The seller's ads, including photographs --
    a. if the seller has a whole string of "NIB" ads running over the course of several months or years, that's a factor to establish that he's an unlicensed dealer (which is a little beside the point, but important)
    b. presumably, the seller posted those ads on the defendant's website, with the defendant's knowledge and consent. A search and seizure warrant will get hold of the servers to establish whether the pages are actually hosted on the defendant's server. A prosecutor's subpoena may help establish (through witnesses) just how much an individual defendant "knew."​
    2. Payment -- does the website get a cut? Let's get ahold of the payment records and see what's noted there.​
     
  12. IL Guns

    IL Guns Member

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    I perfectly understand what you are saying. I know EBay and PayPal have clamped down pretty hard, there are no outright gun sales on there. If they even suspect that you are up to selling say a couple of pieces that combined will make a gun, no more PayPal account. As for the auction sites, I stay away ever since I was outbid on a .357 Sig barrel AFTER I won the auction.
    What I was conveying was say buying from Buds. Say I do my transfers through different FFLs. According to the one and only FFL guy that I do transfers through, five handguns a month makes me a "gun dealer". Since I don't have a FFL that makes me "unlicensed dealer". I would think that same would go if I bought them from any "website", even a classified section on a legit site. Since I really don't even like talking to the PD during a traffic stop, I'm pretty sure that I would HATE sitting in the ATF office which is actually only a few miles from my house. Not to be a smart aleck but has ANYONE ever bought a gun on craigslist? "Hey, this gun is still hot and smells like murder"! I honestly wouldn't buy a dog crate on there - true story.
     
  13. Frank Ettin

    Frank Ettin Moderator Staff Member

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    Too many off topic posts, and a bunch have been deleted. If you're not sure what this thread is about, see posts 1 and 9.

    Any more off topic posts and the thread will be closed.
     
  14. esq_stu

    esq_stu Member

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    What I'm suggesting is that there may be facts that fit a pattern, pointed out in recent ATF guidance, that if present, make it sufficiently suspicious that one knows or SHOULD know that it is not enhancement of a personal collection, but rather, it is likely to be business.

    Example:

    seller says (in essence): "just picked up 10 glockz, selling them cheap, can get 10 more if you're interested - send me a PM."

    (It wasnt 10 glockz, you get the point.)

    Mod sends pm to seller: "hey are you an ffl? If so, your post is in the wrong forum."

    Seller: "no"

    Mod: "then if you don't delete your post I will"

    Or

    Mod: "just curious; post at your own risk"

    I'm the mod trying to protect the forum, I deleted the post, seller complained, and an admin overruled and reinstated. I think the site was at risk but haven't found authority (cases, etc.) in support.
     
    Last edited: Feb 11, 2016
  15. SMMAssociates

    SMMAssociates Member

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    I'm pretty low on the food chain at the Buckeye Firearms Association, but as a Site Administrator, I sometimes have to answer questions of this type.

    Our official position is something like:

    We recognize that we are likely to prevail if somebody comes after us as the result of a gun sale done via our board, but we really don't want to spend the money to defend it.

    We'd rather put the money into furthering our basic principles - safe ownership, transport, carry, and Self Defense.

    So, no firearms sales on the board, and nothing serialized.... You can sell ammunition, small parts, etc., but not workable firearms or serialized components. (The latter usually being a firearm as far as ATF is concerned.)

    Regards,
     
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