How to lawfully dispose of a denied transfer firearm

[bikemutt]

As mentioned in another thread, I have a friend who finds herself in the awkward position of having ordered a gun from an out-of-state FFL, paid for it and had it shipped to an in-state FFL, then received a NICS deny.

The question is how to lawfully recover at least some monies from the failed deal, there's roughly $1000 at stake here.

As I've learned, the seller has a no returns policy, period. And, their appears to be a great deal of resistance to appealing the denied transfer.

My thought is to negotiate with the FFL who presently has custody of the rifle, to sell the gun to someone else, preferably someone completely at arms length from the original purchaser in order to eliminate even a hint of a straw purchase. Perhaps use one of the online sites like gunbroker.com or gunsamericsa.com.

Does my suggestion have sound legal footing? Any other ideas?

 

[Art Eatman]

That FFL could quite legitimately put it up for sale as a consignment deal. He'd obviously want some % for doing it, but most of the money would "come home".

Or you could complete the deal and then sell it to some third party who's unrelated to the problem child.

 

[rule303]

Your friend is at the mercy of the FFL she had the gun shipped to. I have never had this happen at my shop yet, but I would handle it exactly how you described. It would go to the highest bidder on GB, I would keep 15%, and return the rest to the buyer. The other option would be for the FFL to store the gun until your friend does an appeal if she truly was wrongly denied. Of course this can be very time consuming, and you can't expect the FFL to store the gun for free for 6 months or more.

 

[mgkdrgn]

^^^^ -- the correct answer

 

[Black Knight]

Why was she denied? Did the FFL give her the information she needs to file an appeal or even how to find out why she was denied? Where is the resistance to appeal coming from? If she is legal to own a gun then she has the right to appeal. If she has all her ducks in a row she should be able to win the appeal. Most denials are from names that are the same as or similar to those who are legitimately prohibited from owning firearms.

 

[dprice3844444]

http://www.fbi.gov/about-us/cjis/nics/appeals/nics-appeals-process/appeal-faq.pdf

http://www.fbi.gov/about-us/cjis/nics

http://www.fbi.gov/about-us/cjis/nics/poc

 

[NavyLCDR]

Your friend is at the mercy of the FFL she had the gun shipped to. I have never had this happen at my shop yet, but I would handle it exactly how you described. It would go to the highest bidder on GB, I would keep 15%, and return the rest to the buyer. The other option would be for the FFL to store the gun until your friend does an appeal if she truly was wrongly denied. Of course this can be very time consuming, and you can't expect the FFL to store the gun for free for 6 months or more.

Completely false information. What makes you think the FFL can do anything they want to with a gun that is owned by someone else? You sell the gun against the owner's wishes, you keep 15% for yourself, and you find yourself in small claims court. The buyer now owns the rifle. PERIOD. The receiving FFL does NOT get to decided what happens to the gun, the new owner does.

She can sell it privately to another party, whom the FFL will transfer the gun to. She can sell the gun to the FFL. She can REQUEST that the FFL sell the gun on consignment.

What is ILLEGAL is for the FFL to unilaterally decide what happens to the gun, because the FFL does not OWN the gun.

 

[rule303]

In the eyes of the ATF, the gun belongs to the FFL who possesses it, regardless of who "owns" it. Trust me, the FFL holder would rather end up in small claims court over a few hundred bucks than end up the subject of an ATF sting for transfering a firearm to a buyer supplied by a previously denied person. I didn't mean to come across as harsh, but put yourself in the FFL's shoes. Would you transfer a gun with any possibility of a straw sale when it means time in federal lockup, for just the cost of a transfer fee? I for one always inform the customer of my policy in case of a denial on a transfer, we don't know all the particulars here, and that may be the case. If the dealer really wanted to be uncooperative, he could simply turn the gun over to the local ATF field office until it all gets sorted out.

 

[NavyLCDR]

In the eyes of the ATF, the gun belongs to the FFL who possesses it, regardless of who "owns" it.

Nice try. Better call your ATF field office and ask them before you do anything with the first gun you get for transfer when the buyer fails the NICS check. You sell a gun that I have bought because of a SNAFU with a NICS check and you're going to end up in court for theft. If the value of that firearm that you steal is high enough, it becomes felony theft. Then what will happen to all your guns and your FFL?

Just because a person fails the NICS check in no way means they are actually a prohibited person.

OH... and if you received that firearm via US Mail with the buyer's name on the address label.... we can attach mail fraud to theft of the firearm as well.

Once you end up with the gun you can't transfer, the buyer will have a certain length of time, by law, to remedy the situation. Once the required time elapses, specified by law, THEN you can go through the proper legal procedures to claim ownership of the gun. However, if the buyer provides you with a viable solution, and you simply don't like it, the buyer can still take you to court for you to pay them the value of the firearm because you were presented with a viable solution to dispose of the firearm.

 

[Al Thompson]

FFL who possesses it

The FFL may have it, but the FFL does not OWN it. The buyer OWNs it, but cannot take possession of it.

return the rest to the buyer

Better hope the buyer doesn't swear out a warrant for theft if that action is taken with out a signed agreement.

 

[armoredman]

Ownership and control can be two different things.

 

[bikemutt]

A FFL I deal with has an official policy in writing that if a firearm is not picked up within 90 days it may be sold to satisfy storage and other charges. I don't think he would ever exercise the policy but I suppose there needs to be some guideline to govern an unfortunate set of circumstances not of the FFL's making.

In this particular case, the FFL is well known in a small town, my guess is he will grant the necessary latitude in order to see this concluded in a lawful and cordial fashion.

 

[Art Eatman]

The legalities seem well-covered.