FFL is trying to steal my father in laws pistol

[Frank Ettin]

...That's an argument the FFL can make to the small claims court judge. And maybe that judge would buy the argument, and direct the FFL to return the gun to the Alaska FFL, hold it to transfer to a FFL in the eventual state of residence, or even sell the gun and give the proceeds to the original owner. But I just can't see the judge saying 'sure, keep the gun for yourself, or sell it and keep the money yourself'.
....

I, personally, would go to small claims. The FFL can't object to that, no matter what the judge decides. The FFL is covered because he is complying with the court's instructions. IANAL, but I don't think you can ever get in trouble complying with a judge's orders.

The big problem here is that isn't the sort of thing one can do in small claims court. Small claims courts only have limited jurisdiction and can only award money damages. They can not issue orders (called "injunctions") to require that someone do, or not do, anything.

 

[SSN Vet]

WOW...

this sure has dragged on....

there are two easy answers....

Get MT id card and become a citizen of MT, get the gun, then move to whatever state you want.

Pay shipping to have MT dealer send it back to AK and start all over.

The FIL made a mistake in how he shipped the gun.

But the FIL was smart enough to avoid the biggest mistake of all.... transporting a handgun through Canada. That's one mistake that you do NOT want to make. Unless you're looking for free room and board and health care, compliments of the Canadian tax payers.

 

[natman]

Why in the world would you pay not one but two FFL's to transfer a gun you own to yourself?

Because the FIL screwed up by getting the MT FFL involved in the first place. What he should have done is ship the gun to himself, c/o the brother's MT address. That would have been perfectly legal. But now that the gun is on the MT FFL's books, it has to be gotten off his books legally. Which is complicated in this case.

 

[Sam1911]

That's an argument the FFL can make to the small claims court judge.And maybe that judge would buy the argument...

Well, the judge certainly will "buy" the argument, as he cannot direct the FFL to break federal law, and the ATF has spoken clearly on this point.

But another facet of this problem is that unless this is a VERY special gun, going to small claims court over it might not be worth the cost and trouble. (Sort of like buying round-trip airfare to Alaska and back, hotel, food, etc. just to go pick up the gun and fly home with it.)

...and direct the FFL to return the gun to the Alaska FFL, hold it to transfer to a FFL in the eventual state of residence, or even sell the gun and give the proceeds to the original owner. But I just can't see the judge saying 'sure, keep the gun for yourself, or sell it and keep the money yourself'.

I'm not sure what the judge could legally require the dealer to do. Selling the gun and giving the proceeds to the owner might be the most equitable thing and minimize his losses to the greatest extent, but he's still going to be several hundred dollars poorer for the experience.

I'm a mechanic and have worked on your car. You come to pick up the car and are blind drunk. Of course I can refuse to hand you the keys. But if you show up sober later, or with a designated driver, I can't say 'nope, I think your friend will give just give you the keys before you're sober, so I'm gong to sell the car in 30 days and keep the money'.

Sure. But gun transfer laws don't work that way. It is just possible that there IS a legally valid forfeiture rule to ensure that a dealer isn't stuck with something -- or even out money for shipping or whatever -- if some problem of your own leaves you unable to retrieve your property. If, you don't pick up a firearm from a gunsmith after a certain period of time, they are able to consider it abandoned and sell it off. Some variation of that may indeed apply.

 

[Bozwell]

Unless he can establish residency in MT (which if he's staying there for the foreseeable future should be doable), I would just sell the gun on gunbroker or your favorite auction site. The FFL may not be able to give the gun to the OP who isn't a MT citizen, but he could certainly send it elsewhere on request of the OP. A low cost gun wouldn't merit a trip back to Alaska, but you could get a few hundred bucks for it.

Honestly, the laws on this subject aren't complex, but they aren't always intuitive either. This thread just goes to show that you should really look into the procedure (or have someone look into it for you) before just up and shipping a firearm to a FFL.

 

[CoRoMo]

Just have the brother pick it up.

Aren't you an FFL?
That would be a straw sale and a Federal crime.

I'm following along here, and I think I would say that this FFL certainly won't let the brother pick up the gun because he sees it as a straw sale. He has the authority to make that decision. He has more than enough evidence. He's under no obligation to change his mind.

But as you posted earlier...

If the dealer has any suspicion that it is a straw sale he cannot by law complete the transaction.

The dealer's suspicion (or lack of) seems to be key. If the two brothers were truly going to transfer ownership of this gun that is in the FFL's possession, no games, no lies, no gimmicks, they were sincerely changing the ownership of this gun for real, and they could convince a licensee of this, the licensee would obviously not hold the same suspicion that this MT FFL does. Question 11a on Form 4473 would be answered correctly in that instance. It would only be up to the suspicions, or lack thereof within the licensee.

So then, if a licensee was to make the transaction with no suspicion at all, HE wouldn't have broken the law, right? We can call him an idiot, out of his mind, and gullible for believing that their arrangement is legit, but we couldn't possibly call him in violation of federal law because he had no suspicion of a straw purchase.

The MT licensee certainly is suspicious, and he has plenty of reason to be.

But that doesn't mean that another licensee would be as stubborn if the brothers were honest in their claim, and he saw it as legit.

Posted by numerous members:
[regarding no technical requirement to present FFL with a state DL]

Even though a DL isn't the defined residency requirement, the FFL is running his business the way he's decided to run it. If HE requires it, that's that; you need a DL to receive a transfer from him, period.

 

[chevyman097]

Just get a state issued Id and claim residency. Nothing they can do about it then.

 

[goon]

The FFL may not be able to give the gun to the OP who isn't a MT citizen, but he could certainly send it elsewhere on request of the OP.

Which is why I still vote on having the gun shipped to FFL of the OP or the OP's wife in their home state, transferred legally to them, and held until the FIL can get himself in a position to legally receive it again. It's stupid and it sucks, but sometimes that's just how it is.

 

[pintler]

The big problem here is that isn't the sort of thing one can do in small claims court. Small claims courts only have limited jurisdiction and can only award money damages. They can not issue orders (called "injunctions") to require that someone do, or not do, anything.

That's a good point, and thanks for the clarification. Let me rephrase - the judge will (IMHO) offer the FFL some options. Just keeping the gun (or selling it and keeping the proceeds) isn't going to be one of those options (again, IMHO, IANAL).

It is just possible that there IS a legally valid forfeiture rule to ensure that a dealer isn't stuck with something -- or even out money for shipping or whatever -- if some problem of your own leaves you unable to retrieve your property. If, you don't pick up a firearm from a gunsmith after a certain period of time, they are able to consider it abandoned and sell it off. Some variation of that may indeed apply.

Sure, that's true whether you're a mechanic, landlord, or gunsmith - but note 'leaves you unable' and 'after a certain period'. The holder of the property has to reasonably attempt to return the property, and the owner has to not make reasonable attempts to recover it. That's not the case here.

Selling the gun and giving the proceeds to the owner might be the most equitable thing and minimize his losses to the greatest extent, but he's still going to be several hundred dollars poorer for the experience.

IMHE, small claims judges are indeed quite interested in the 'most equitable' thing; that may well be a resolution acceptable to all. But I disagree about the 'out hundreds of dollars'; in Montana it costs $20 to file a small claims case. He might or might not have to pay for process service. Either way, it's going to be cheaper than than almost any gun. And if he wins, his fees are reimbursed. Personally, my guess would be that when the FFL is served, the FFL will put on his thinking cap and find a way to make the owner whole w/o breaking the law, or taking an afternoon to go to court.

If the gun isn't an heirloom, this gets you an equitable resolution. If it is an heirloom with immense sentimental value, talk to a real lawyer. But just saying 'OK, sounds weird, but I'll let the FFL keep the gun/$$$$' - respectfully, I'd only do that after hearing from the judge. Opinions vary, of course!

 

[brickeyee]

Nope, I cant, but Im not in the business of complying with Federal law. The people who took my father in laws pistol, however, are. Last time I checked, theft is still illegal.

And transferring a handgun to a non-resident is a federal crime.

You set yourself up for failure by not understanding the law.

 

[David E]

If the FIL doesn't want to get a state ID, why not sell the gun to SIL inside the FFL's business and write a bill of sale, all in front if the dealer. Hopefully, he's also a notary and can notarize the receipt. (this could be another reason for doing the transaction in view of the dealer)

Saying "I'd rather sell it to him than lose it.". Then walk out and let SIL buy it. Dealer can keep a copy of the bill of sale for proof it wasn't a straw purchase.

 

[DCR]

I'm curious why the FFL, and town hasn't been named.

My take is that the FFL is trying to get a freebie by hiding behind federal law. There's no reason for a "30 days and it's mine" policy in this case, and no reason why the FFL shouldn't work with him in trying to get him his property back, even if it meant sending it back to Alaska.

I smell unscrupulous behavior on the part of the FFL, and think the FFL and the town in MT should be named so those of us who disagree with the FFL's actions can choose another dealer for our firearms-related needs.

 

[Sam1911]

If the FIL doesn't want to get a state ID, why not sell the gun to SIL inside the FFL's business and write a bill of sale, all in front if the dealer. Hopefully, he's also a notary and can notarize the receipt. (this could be another reason for doing the transaction in view of the dealer)

Well, we've been discussing that one extensively, except it was the brother, not the son-in-law who was going to be the buyer.

The dealer has refused to do this as he believes this will simply be a straw sale. All the bill-of-sale and notarizing stuff doesn't change what he suspects is really going on.

Now, I'm with you (and CoMoRo) that if they can convince the dealer...

So then, if a licensee was to make the transaction with no suspicion at all, HE wouldn't have broken the law, right? We can call him an idiot, out of his mind, and gullible for believing that their arrangement is legit, but we couldn't possibly call him in violation of federal law because he had no suspicion of a straw purchase.

... and the bill of sale might be a step in convincing him. I mean, we aren't him and can't know what he'd believe or wouldn't believe.

But if he suspects that there's a straw sale going on, he is not supposed to do the transfer.

 

[NavyLCDR]

Honestly, the laws on this subject aren't complex, but they aren't always intuitive either. This thread just goes to show that you should really look into the procedure (or have someone look into it for you) before just up and shipping a firearm to a FFL.

And in almost every thread started on this forum, when someone asks, "I am going to state X (usually Alaska), how can I get my gun there" there is invariably someone that is going to post, "Just send it to an FFL there and pick it up when you get there." And then someone who knows what the Federal law says...."NO!"

 

[ZeroJunk]

Establishing Montana as a residence is not all that easy, even if you are a large land owner. Hunters have ran in to that problem trying to get a resident hunting license and the fact that they owned a house and thousands of acres of land didn't convince the authority having jurisdiction.

 

[stonecutter2]

What a mess, I hope it all gets sorted out fast.

I really hope that the father-in-law just gets an ID, it wouldn't be too hard to do and the matter would be settled.

I understand the frustration of it all, but more research should have been done before embarking on this BATF adventure. Just checking the handgun in your luggage on the flight to MT would have been the same cost as the transfers (or more likely, less) and there wouldn't have been such a frustrating situation for all involved.

I do find it suspicious that the dealer claimed he could just keep the gun, that just seems a little shady. Hopefully it was just words that got out in a heated discussion amongst frustration.

Good luck and let us all know how this turns out.

 

[Sam1911]

Establishing Montana as a residence is not all that easy, even if you are a large land owner.

That may be true. Technically, the ATF is satisfied with this answer:

The State of residence is the State in which an individual is present; the individual also must have an intention of making a home in that State

But the gun dealer will want to see some proof. And that proof is probably a driver's license or some other state-issued id.

And it doesn't seem to apply anyway, as the OP stated from the start that his FIL has no intent to move to MT.

 

[dogtown tom]

nearly ninety posts..................

....and some of you guys persist in villifying the Montana dealer, who has broken no law.

Some of you internet lawyers are quick to jump the gun and advise taking him to smail claims court, calling the ATF, calling the local PD.............NONE of which is an option at this point!

NO CRIME or ACTION has occured that would warrant any lawsuit or involvement by any law enforcement agency.

I don't know if it's a failure to read the entire thread or lack of reading comprehension, but it was made clear by the OP on page one what his FIL's intent is.....and "selling" the gun to his brother was not the intent.

You can offer up convoluted arguments all day but it always comes back to:
1. The Montana dealer cannot legally transfer a handgun to someone who is not a resident of Montana. The FIL is not and does not intend to become a Montana resident (according to the OP).
2. The Montana dealer cannot transfer the handgun to the FIL's brother as it is a classic example of a straw sale....a Federal crime.
3. The Montana dealer has not sold a darned thing! So accusing him of theft at this point is premature and potentially libelous.
4.We've only heard the OP/FIL side of the story. I'm sure the Montana dealer would have his own version.
5. Federal law has been very clear for the last forty three years on how firearms must be transferred when acquired from a licensed dealer. This situation is nothing new.The legal requirements to transfer POSSESSION of a firearm have been the same since 1968.
6. "Ownership" is not addressed in Federal law firearms law. It doesn't matter if you've owned a gun for eighty years....you hand it to an FFL to ship you are bound by Federal law regarding transfer of possession.
7. A "straw sale" is the common name for a transaction where the actual purchaser (or person who will ultimately possess the firearm does not complete the 4473 and pass the NICS check himself....but has another person do it for him. It doesn't matter if you own the guns, you don't have legal possession....the FFL does and can only transfer the firearms according to Federal law.
8. The father in law has two choices: become a Montana resident or pat the Montana dealer to ship it to another dealer in the state he intends to reside.
9. The Alaska dealer who shipped this handgun should have known that an Alaska resident (the FIL) could not acquire a handgun out of state, yet he apparently failed to tell the FIL of that pretty important fact. Funny that no one has asked for HIS imprisonment.

 

[stonecutter2]

Establishing Montana as a residence is not all that easy, even if you are a large land owner. Hunters have ran in to that problem trying to get a resident hunting license and the fact that they owned a house and thousands of acres of land didn't convince the authority having jurisdiction.

I don't see that it'd be all that hard. Two primary forms of identification, or 1 primary and secondary:
http://www.doj.mt.gov/driving/requireddocuments.asp#proofidentity

Then proof of residency:
•any of the following, dated or issued not more than four months prior to application:
◦a payroll check or payroll check stub
◦a bank statement
◦a utility bill or utility hook-up order
◦canceled mail addressed to the applicant

Have the Father in Law go into a bank and start a savings account with the brother's Montana address listed (as this would be his residence while in Montana, staying with the brother, his account statements would thus go to this address). Deposit $20 or whatever the minimum initial deposit is. Upon deposit and creation of the account, ask for a copy of a bank statement for the account. They will happily print one out at that moment.

Go into the drivers' facilities with these documents and get a State ID.

Go to the FFL and get your gun.

 

[Sam1911]

dogtown tom has explained it (again) pretty clearly. Let's pause for a bit here (lest we go 'round the barn again) and give the OP's FIL a chance to get it sorted out.

Maybe he'll be able to use some of our suggestions in working this out with the dealer.

CAMERONEOD: When this is resolved, please send me a Private Message and I'll reopen the thread so you can tell us how it all worked out.