ATF's got it, owner wants it back?

[Mr. James]

Greetings, all,

Hope someone can help with this "friend-of-a-friend" scenario. Fellow pawned a rifle to pay off a pressing debt. When he returned two weeks later to repay the loan, he learned the pawnbroker had in the interim been raided by the ATF. That much loved agency had, naturally, seized all firearms in the pawnbroker's possession. The story given is that ATF is refusing to approve any transfer of the rifle back to the pawnbroker (who was never convicted on the original violation (that being unknown to me)), or to the original owner.

The story, edited for clarity and removal of names:

"I got a seat belt ticket and needed some fast money to pay it. So I pawned my rifle. I went back 2 weeks later to repay my loan and the ATF had seized it. I did nothing wrong [ - ed. note] but the ATF ran one of their stings on the pawn shop and took all the guns in the shop. The charge [which led to ] my rifle being seized was dropped by the U.S. attorney's office. The pawn shop owner was convicted on some lesser charges and now they will not [return] any of the guns. . . . This has been going on for 2 years and every time it looks like I will see my rifle again, someone at the ATF delays it or some more paper work needs to be done. [The] U.S. attorney has [given] the OK [for return of the rifle], the Pawn Shop has given the OK. [Name deleted] at the ATF in Charlotte has not given the OK."

With this limited information, can anyone out there comment on the relationship of bailment and the seizure of pawned goods by law enforcement? I suspect this gent lacks either the incentive (i.e., a really nice rifle), resources or inclination to go hammer and tong at the ATF, but still, what happens to property owned by a - presumably - innocent third party when it is seized in the course of a law enforcment operation?



Thanks, all, for any insight into this mess.

 

[ArmedBear]

Who actually owned the rifle? How was the pawn agreement written up?

That could be an important factor.

(Why in hell someone would pawn a rifle to pay a seatbelt ticket is left as an exercise.)

 

[orangelo]

He won't get it back. There were many frustrated class 3 owners on www.subguns.com that had paid for weapons from a dealer in Lousiana. The ATF raided his store and took everything and the customers that had been waiting for their transfers to clear got screwed. Official word from the ATF was don't expect to get approved, much less the merchandise or their money back.

The taxman only cares about you if you miss a payment.

If he doesn't pay his income taxes and tells the IRS that the reason he can't pay is because the ATF has his property he was planning to sell to pay taxes they might do something about it. Or they could just not do anything and throw him in jail instead.

 

[Mr. James]

Thanks, both,

ArmedBear, that's the problem from this end, too - how was that contract drawn? I guess if title to the rifle passed to the pawnbroker, then this guy is entirely out of luck. But I do not know enough about the pawn "industry" (if it can be categorized as such) to know what happens to property that the broker has accepted in pawn, with the understanding that the original owner has some specified term by which he can get it out of hock.

We were speculating as to the ticket and thought the guy was probably downplaying a more serious fine, such as for failing to properly restrain a child. "Oh, you know, some kind of seatbelt ticket . . . "

orangelo,

Thanks - that was our gut reaction. He'll get it back when and if the ATF guys ever deign to release it. Which in all probability is never.

 

[brickeyee]

Pawn terms vary by state.
In most cases the property is simply held by the pawnbroker and not forfeited until time X. After that it is the pawnbrokers property and he may dispose f it as he sees fit.
But the exact terms vary.

 

[buzz_knox]

The pawn terms are pretty much of relevance if and only if ATFE decides to return the weapons. It's easy enough for them to assert the weapons are evidence and hold onto them.

 

[ArmedBear]

In most cases the property is simply held by the pawnbroker and not forfeited until time X. After that it is the pawnbrokers property and he may dispose f it as he sees fit.

Might that be a bit different with guns, since the pawnbroker most likely has (or at least HAD) a FFL?

If the borrower just never shows up again, the pawnbroker would probably need some transfer paperwork already signed.

 

[MechAg94]

So if the gun was on consignment at a shop that go raided, it would still belong to the owner?

 

[ArmedBear]

MechAg, that's an interesting question.

The ATF (like some other government agencies) gets away with some things because the cost of fighting them in court is far higher than the actual loss to the plaintiff.

One flaw of our legal system, IMO, is that courts appear to pretend that there are no costs involved in pleading your case. This makes it convenient for the courts, but it's downright anti-liberty for the rest of us.

 

[GigaBuist]

You're presuming that the ATF cares much about laws regulating themselves.

 

[ArmedBear]

You're presuming that the ATF cares much about laws regulating themselves.

I'm presuming that they don't. Neither does Congress, except when the laws give them some advantage, or the President. Hell, SCOTUS sometimes seems to care little about the Constitution.

Law enforcement agencies can be the worst offenders, because they're in the best position to be offenders.

So, while we have the right to have our case heard in court, the court does not concern itself with the costs of having our cases heard. Therefore, if we want to sue in order to correct a wrong perpetrated by the government, we are in a rather poor position, much of the time.

Say the ATF siezes a $350 rifle. It might cost you $5000 to try to get it back. Most people will say, "Screw it." So the ATF gains power. All that a government agent has to do is to mess with our rights a little bit at a time, and there may never be any consequences. That's how the system can work.

 

[Thin Black Line]

This calls for a letter threatening a civil rights lawsuit in federal court. Find a
lawyer favorable to gun ownership and the Constitution who would be willing
to send it pro-bono (free) at this point. I had a similar situation years
back when a firearm was not returned and did the letter (without a lawyer)
against a State level LEA. The officer griped and moaned but it was returned
two weeks later --using more officers than it took to remove it in the
first place....sigh.....

If the letter does not work and a lawyer is used, have him file in the federal
court closest to your friend, but farthest from the ATF officers who are to
be summoned. Likewise, if ATF officers have been transferred to other
offices across the country, make sure you still subpoena them for a
deposition even if they had a minor role. The lawyer will be able to explain
why I am recommending these actions In the meantime, have friends
send letters to the local "elected" fedgov rep explaining the situation
and the waste of taxpayer $$$ that is about to take place in federal
court as ATF officers are ferried around regarding a $300? item that has
not been returned as per the US Attorney involved (be sure to drop his
name)

Let us know how this works out --let's me the current status of how the
system is working and what rights we have left. Thanks in advance!

 

[Mr. James]

Say the ATF siezes a $350 rifle. It might cost you $5000 to try to get it back. Most people will say, "Screw it." So the ATF gains power. All that a government agent has to do is to mess with our rights a little bit at a time, and there may never be any consequences. That's how the system can work.

Precisely so, ArmedBear. I would suspect that is exactly the case with this raided pawn shop. The gentleman had to pawn a rifle to pay off a traffic ticket. He clearly doesn't have the $5,000 to go after his $350 rifle "on principle." So . . . "aw, screw it."

 

[Thin Black Line]

Hence, my use of free letters as a start.

Next thing you do is go to the local gun clubs and pro-2-A-grassroots orgs
and pass the hat around for the attorney willing to do steps 2 and 3 at a
cut rate. Yes, these rare lawyers exist.

If the clubs aren't willing to pony up for the cause, mark them off as
hypocrites.

 

[ScottsGT]

Take the pawn owner to small claims court. He didn't follow thru due to his bad business practices. You'll get the value of the rifle, but if it had any sentimental value...Well, if it had sentimental value he would have not hocked it in the first place.

 

[bruss01]

Take the pawn owner to small claims court. He didn't follow thru due to his bad business practices. You'll get the value of the rifle, but if it had any sentimental value...Well, if it had sentimental value he would have not hocked it in the first place.

My understanding of how a pawn shop works is, you take an item that is in sale-worthy condition, you receive a loan for the approximate value of the item, minus commission, and leave the item as collateral. If you return and repay the loan within a set time frame, the item can be repurchased for the amount of the loan plus commission. If you do not repay the loan before it expires, then it becomes a sale. The dealer, through no fault of his own, did not have the merchandise when you returned to repurchase it. I imagine this is not the first time something like this has happened - pawn shops get flooded or have fires, or get hit by tornadoes just like any other structure. In this case it was another unruly force of nature, the ATF. Maybe you can make a claim against the pawn broker's insurance, but my hunch is you got money for your rifle, and that money is what you will ultimately be stuck with. You have legal avenues, but all the ones I see cost more than the difference between the money you got for the rifle, and the replacement cost of the rifle. I think you are just stuck and should buy a new rifle if economic viability is your yardstick. Any other choice will just cost you big bucks with no guarantee of any kind of equitable return on the investment.

As to the final quote above: Never let a firearm you intend to keep out of your posession. Pawning things is a bad idea for a lot of reasons, but expecially with guns. at least, with guns you intend to try to keep.

 

[Mr. James]

Good posts, all,

Thin Black Line, I wasn't ignoring your suggestion, our posts simply crossed in the ether. I happen to know just such a favorably-disposed attorney (the fellow who presented me with this situation in the first place).

ScottsGT and bruss01, you raise interesting points regarding force majeure on the one hand and an actionable breach of contract on the other. As unruly a force of something (I won't blame nature ) as the ATF is, in the instant case, the pawnbroker may have been the cause of the loss through his own bad business practices - even criminal acts. No, I don't give the ATF the benefit of the doubt in any case. That organization simply hasn't earned that benefit. Still, if Mr. Broker was up to no good, leading to a criminal investigation and a raid, that may attenuate any claim of force majeure by the broker.

'Course, I's just a ign'rant layman.

 

[unspellable]

Pawned, laon or sale?

As a technicality, pawning something may be a sale to the pawnbroker with option to buy back rather htan a loan.

Wheter that's the casde or not, if it's a rifle the pawnbroker is an FFL and enters it on his books and you have to fill out the infamous form to get it back. That lends weight to the idea that it's a sale with option to buy back.

But then, the ATF has a long history of "We don't give a d**n what the law is."

 

[oldfart]

There is one small chance. Even the ATF has to ask Congress for money, so they try to appear to be nice when the local legislators are watching them. Go talk to your congresscritter and your Senator. No e-mails, though a written letter might work. If at all possible, go to their local offices and talk to their aides.
It might not work, depending on whether or not your legislators are pro- or anti-gun, but it's worth a try. I once had a run in with the IRS and my congressman wrote a letter to the director of the IRS who wrote a letter to the manager of the field office who wrote me a letter and then sent me a check -- all in the span of about five days!
Good luck!