Liability with a private transaction

Discussion in 'Legal' started by 460Shooter, Jun 21, 2016.

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  1. 460Shooter

    460Shooter Member

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    Hello all,

    I'm looking for a little clarification on this topic. If you conduct a private gun sale within your own state, where you are not required to have a background check done on the purchaser of a gun, and you are the seller, can you be held legally liable if the purchaser commits a crime with that gun?

    I listen to a lot of NPR and the "gun show loophole" and "private sale loophole" talk made me wonder.

    Personally, my standpoint is to never sell a gun privately unless I know the person really well, or if a person has a current valid carry permit, as I thought in these types of transactions the burden of making sure you aren't selling to a person prohibited from owning a gun is on the seller.

    Any legal cases as an example? Just wondering.

    All too often I here the liberal rhetoric that background checks aren't done at gun shows or with online purchases, which is completely inaccurate. However, in the scenario I described, there is no background check required.
     
  2. TimSr

    TimSr Member

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    This will vary among states, but as kind of a general thing, you don't want to do anything that could be construed as negligent. In Ohio, it is customary to check the buyer's ID to verify he is of age, and his residence in the same state, then you write a bill of sale, and the buyer gets the original, and its best if you get some kind of copy, or a photo of the original, and that pretty well covers your responsibility. Here, it would only become an issue if you knew, or should have known he was not legal to buy.
    Your state may have different acceptable requirements.


    As far as liability, anybody can sue for anything, and there no guarantee on a judges behavior.
     
  3. hdwhit

    hdwhit Member

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    I'm sure one of the attorneys will be along to give a complete answer to your question, but I will note two things for your consideration:

    First, Remington is currently in court being sued for liability in the Sandy Hook shooting.

    Second, if a gun you sell iis used in the commission of a crime, the victim may hire and attorney and sue you. Even if the suit is ultimately found to have no basis, you will still have had to incur the cost and time to defend yourself against it - and that's going to be far more than anything you made from the sale of the gun.
     
  4. 460Shooter

    460Shooter Member

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    Yes but what I'm interested in is if the background check, or lack there of in a private sale puts MORE legal liability on the seller.

    We know that if you go through a dealer, or buy from the manufacturer directly, you will still go through a background check. If the sale is approved, and the dealer does the necessary paperwork, and the purchaser is not a prohibited person, the liability for wrong doing has to be on the end user.

    In private transactions that check doesn't happen if you aren't crossing state lines. Hence my question.

    I can't believe the lawsuit against Remington will go anywhere. If it does, I will have lost all faith in the judicial system.
     
  5. Frank Ettin

    Frank Ettin Moderator Staff Member

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    Maybe. As with so many thing, it all depends on exactly what happened and how it happened.

    Any liability to a private seller will generally be based on negligence. Negligence in law is basically:
    Negligence is generally a question for a jury. Basically the jury will need to decide, after all the evidence about what took place and what everyone said or did is presented whether the defendant acted as a reasonable and prudent person would in the same situation.

    And how a jury would conclude a reasonable and prudent person should act in the course of selling something to a stranger would be influenced by what was being sold. Since a gun can be used particularly effectively and efficiently to do evil by someone so inclined, an impartial jury might easily decide that a reasonable and prudent person would exercise more care selling a gun to a stranger than selling an chair to a stranger.

    And remember that if you're now being sued about that gun you sold, the person you sold the gun to committed a crime or hurt someone with it. So now, with the knowledge that the gun you sold was used for an evil purpose, a jury will be closely examining the evidence about what went on during the transaction to decide if a reasonable and prudent person would have sold the gun to that buyer under the circumstances that obtained at the time of sale.

    Also, as a private seller, you will not shielded from liability under the Protection of Lawful Conduct in Arms Act (15 USC 7901, et seq).
     
  6. Shaq

    Shaq Member

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    Which is why I only do consignment sales. It's worth losing a few bucks to avoid the potential hassle of a private sale.
     
  7. P5 Guy

    P5 Guy Member

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    It would be interesting to see this?
    The perpetrator of the gun crime flips on the guy who sold him a stolen gun. Of course there'd be no background check done a transfer of stolen property.
     
  8. Frank Ettin

    Frank Ettin Moderator Staff Member

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    A number of off topic post have disappeared.

    The issue really isn't the federal regulation of dealing in firearms. In any case, that's a horse that has long since left the barn. It is what it is, and it's not going to be changing anytime soon.

    And personal experiences are irrelevant. It doesn't matter how many guns you have legally sold without formality. And what you think is common practice in your part of the country is also irrelevant. Neither have anything to do with the legal principles under which a seller of a gun could be held liable for the criminal acts committed by the buyer with that gun.

    Yes, the seller could have liability. Such liability would be based on the well established principles of negligence specifically negligence in giving someone access to or possession of a potentially dangerous instrumentality. Cases in which liability is found most often arise in connection with automobiles. But the principles are also applicable to the selling or loaning of any other dangerous instrumentality.

    If we can have a reasonably well documented discussion about how the principles of negligence and/or negligent entrustment could or could not be apply to a private seller (or lender) of a gun, that would be responsive to the OP and might be useful information for us all.

    But further off-topic post will result in the thread being closed.
     
  9. Sebastian the Ibis

    Sebastian the Ibis Member

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    Kodiak, At the end of the day trial advocacy is story telling comparing your actions to that of a "reasonably prudent person," (...with the benefit of hindsight). If want to stay out of court, make sure that you minimize and avoid details of a story that could be used against you and make you seem "unreasonable." If the seller says anything that even hints of illegality, especially in an email, cancel the sale or insist on going through an FFL. Similarly, don't sell a gun to a stranger with a bubba'd light trigger. Also avoid details that can be spun. For example, it might be legal to swap a gun for a case of single malt scotch -- but a plaintiff's lawyer can then suggest that you are an alcoholic that traded the murder weapon for booze. In short, just make sure that your actions would appear proper to a juror.
     
  10. 460Shooter

    460Shooter Member

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    Thanks for cleaning it up Frank.

    So lets say the scenario I actually described happened, and a gun you sold privately without an instant background check was used in a crime. How would you demonstrate to a jury that you showed due diligence regarding looking into a person's character, in order to limit your liability?

    This is purely academic and something I've been wondering about for a long time, but never asked. I don't have a deal like this in the works.

    To satisfy myself, I'd likely do some internet searches to see if I could dig up a criminal record. Discovery of felony convictions would obviously be a no go for me.

    I think however, since I have briefly heard a lawyer in person discuss this a few years ago, I would require that the purchaser have a valid carry permit. I think I would require making a photo copy of the permit, and driver's license of the purchaser and attach it to a bill of sale I wrote up.

    I would include basic statements of "I John Doe affirm that I am not a person prohibited from owning a firearm, and do not intend to use this firearm for any illegal purposes."

    I would include a photo, and serial number in the write up. A brief statement stating that there is no warranty or implied warranty by me, and any repairs or damage are up to the buyer to resolve.

    It seems obvious and basic, but I would think a document, home made or not, that shows you asked the question, and at least looked at a valid CC permit would demonstrate to a jury that you had no reason to believe the purchaser was prohibited from ownership, or intended to commit a crime with the gun.

    I actually wonder if it would be good to include a bit of language that states that if the purchaser is ever convicted of a crime that was perpetrated with the firearm you sold them, and you as the seller are required to appear in court or use any personal or work time to testify or give a statement as to the sale of that firearm, that you the seller reserve the right to take legal action against the purchaser to recover any lost wages, etc., etc.

    I realize that this type of document could turn away a lot of potential buyers, but with gun control being a hot button issue, and crazy liability lawsuits being filed against manufacturers, covering your bases seems prudent. I realize this is sort of drifting to "how to limit your liability" but it seems relevant to the conversation. Frank, if you don't agree, and think this should go in a different thread on that topic, let me know.
     
  11. Elkins45

    Elkins45 Member

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    I'm not sure this rises to your established criteria, by maybe it will help move the discussion forward. There was a thread a few years ago about documentation/bill of sale for private sales It turned quite nasty (by THR standards) and in fact was the thread where a series of nasty PMs caused me to add my only ignore list member. Anyway, all the acrimony came about from a conflict between people who suggested that having minimalist documentation that you at least checked to see if the buyer was a resident of the same state was a good idea vs those who were adamant that you just anonomously trade gun for cash and walk away like the 2nd Amendment intends.

    So is there any merit to the idea that being able to show you made a good-faith effort to determine the legality of a sale might provide some sort of protection from liability?
     
  12. jerkface11

    jerkface11 Member

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    How long do you plan on holding onto your bill of sale?
     
  13. Elkins45

    Elkins45 Member

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    Forever. Just shove it in a drawer.
     
  14. Telekinesis

    Telekinesis Member

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    I think you're right. As a buyer, I'd have no problem signing a generic bill of sale with name, description of the gun, "no warranty" verbiage and such, and I'd be willing to show you my DL and CCW, but that's about where I'd stop. I wouldn't be happy with you taking pictures of my ID.

    I would certainly not agree to reimburse you for any time/expenses arising from litigation from an unknown third party. That type of verbiage is just so open ended its not even funny. And I don't know about you, but I value my time and if I were putting together a bill for just my time related to dealing with litigation, it would easily be several thousand dollars (assuming several months of time spent, and not including any actual legal fees - just my time). No one in their right mind would agree to reimburse you for that.

    I think at that point you should just advertise that you will meet the buyer at a FFL and have a dealer transfer completed.
     
  15. 460Shooter

    460Shooter Member

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    Yeah, that's simpler. I was just thinking out loud. I guess I wouldn't sign that type of document either, and if you are that worried, then you shouldn't really be selling to a private party anyway.
     
    Last edited: Jun 22, 2016
  16. X-Rap

    X-Rap Member

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    I see little use in trading each others bonifides on a FTF sale of any kind.
    The trail of ownership on a used gun can be a long one and the seller may not know much about where a particular item came from either.
    A personal transaction comes with some hazards, plain and simple.

    Sent from my VK410 using Tapatalk
     
  17. Frank Ettin

    Frank Ettin Moderator Staff Member

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    Irrelevant to the question presented. Provenance of the gun as nothing to do with the question of whether or not you were negligent in selling it to the guy who then to goes and robs a convenience store with it.

    Yes, but it's possible to try to understand what those hazards are and to consider whether there are satisfactory ways to minimize them. Even if you don't care, others might.

    That's really too broad and open ended a question. It all depends and exactly what happened and how -- and exactly what you did to vet the buyer. And then I'd have to try to convince the jury that what you did was enough -- while the plaintiff will be trying to convince the jury that it wasn't enough.

    As far as strategies to minimize the risk, you and other posters have mentioned some: see a concealed carry permit (and document it); get a signed representation; pay close attention to what the buyer says and how he acts; check the buyer's driver's license; etc. And the ultimate "safe harbor" is to always do the transfer through an FFL with a formal background check.

    The more you do, the lower your risk, but the greater the chance that the buyer will walk away from the deal. You need to decide what your level of risk tolerance is and balance that against how badly you want to make the sale.
     
  18. Old Shooter

    Old Shooter Member

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    I may have not made as much money as I could have, but any time I have decided to sell a gun, I took it to a dealer and put it on consignment.
    When they sell it they do the paper work, state and feds check, etc. After that I won't worry about it. They get 20% +/- and I don't have to go to court. YMMV
     
  19. Carl N. Brown

    Carl N. Brown Member

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    If a reasonable person would suspect the buyer was a 4473 Question 11 prohibited person, I would expect some moral if not legal liability with a private transaction.

    If the buyer has a state issued carry permit, I don't worry. If they say something that perks my radar, I've learned to back away.
     
  20. X-Rap

    X-Rap Member

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    Any proof that anyone has been prosecuted for what another person did after a FTF sale?
    Any examples of sellers who got copies of ID and did BOS suffering less than those who didn't with regards to liability?
     
  21. Frank Ettin

    Frank Ettin Moderator Staff Member

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    First, of course, you display your usual ignorance. This would not be a matter of prosecution. Prosecution is something that happens when one is charged with a crime. We're talking about civil liability.

    Second, there certainly have certainly been negligent entrustment cases in which liability has been found. Most have involved automobiles, but there is no reason why the legal principles of negligence would not apply to the selling, loaning, giving other dangerous instrumentalities. The relevant legal principles are well understood by those educated in the law (but of course not by you).

    So you're free to indulge your "if I don't know that it happened it can't happen" fantasy. What you do is not our problem, and what happens to you is not our concern.

    In the meantime, others are concerned about the risks involved in various endeavors and look for ways in which to conduct their affairs that might minimize or best control those risks. That's why the OP asked his question.

    And something we do regularly in real life in the real world is evaluate various endeavors in light of well known legal principles and assess how to pursue those endeavors in ways that reduce legal risks. Prudent businesses and individuals do that sort of thing all the time.
     
  22. ROW

    ROW Member

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    So you put a gun ad in the news paper and sell a gun, and the guy robs a liquor store and shoots someone. I don't think you would have any Liability at all, just some mental guilt, like I wish someone else bought the gun instead of him.
     
  23. X-Rap

    X-Rap Member

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    Thank you for the typical pompus responce Frank, you rarely disappoint.
    Does legal liability only relate to civil actions?
    I no longer have the right to sell FTF so it's irrelevant to me but coming from a man who demands line and verse from others to substantiate their view I'm surprised there isn't some sort of settled law that would point specifically toward firearms since people have been selling guns longer than cars.
     
  24. Kleanbore

    Kleanbore Moderator Staff Member

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    What you think is of little importance.

    Read and understand Post #5.
     
  25. TimSr

    TimSr Member

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    Hogwash! Once again you show the ignorance of a corporate lawyer with no experience in criminal law, or a gun case in your life!


    http://www.criminaldefenselawyer.com/resources/criminal-liability.htm
    There is a lot more incentive for an injured party to sue Remington in a civil case than your average Joe who doesn't have anything to take.

    Criminal prosecutions, non the other hand, would probably be a lot more likely, if they could show negligence that rises to criminal level, such as knowing the buyer is a criminal.

    I have framed my response in accordance with the examples frequently presented in this forum.
     
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