Liability with a private transaction

[mooosie]

I have bought and sold guns in Ohio and Florida . I ask for is just to make sure they are old enough and a resident of that state. That's it , you guys are adding stuff to make your life miserable and you don't have to. Negligence is pretty hard to prove in this case and besides that I carry personal liability insurance it comes with your homeowners or renter insurance!


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[Kleanbore]

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

What are you trying to say, Tim?

Frank explained that what someone else may do with your gun after your having sold it legally would not lead to criminal culpability on your part, but that it could lead to a civil suit.

He was responding to Post #20, in which that question was posed.

He is correct.

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.

Surely you do not believe that such a knowing act would be considered "negligence".

Of course, if it were to happen, the criminal case would pertain toe the sail, and not to a crime committed later by the buyer.

Do you think that the state would try to prosecute a third party who had not committed a crime for a crime committed by someone else? Don't try to bring in felony murder; that would not apply.

By the way, [moderator hat on] watch your tone.

 

[Elkins45]

I have bought and sold guns in Ohio and Florida . I ask for is just to make sure they are old enough and a resident of that state. That's it , you guys are adding stuff to make your life miserable and you don't have to. Negligence is pretty hard to prove in this case and besides that I carry personal liability insurance it comes with your homeowners or renter insurance!


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I question whether homeowner's personal liability coverage would make good on a claim involving selling a firearm to a prohibited person, or to anyone who subsequently commits a bad act. Assuming you were found liable by a jury I strongly suspect you would need a lawyer to force them to pay---way too easy just for them to say NO and hope you go away.

 

[Zaydok Allen]

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.

Well, respectfully, I don't think you thought that through before you posted. If you take it to the extreme end of horribleness, I don't see how SOMEONE wouldn't try to hold you responsible as a seller.

Let's say you sell a gun to someone who is a felon, or you sell to someone who has been judged mentally incompetent by a judge, or how ever that works. Let's say, you sell a gun to someone who would have to answer yes on the gun purchasing form to one of the questions that would make that person ineligible to buy a gun from a FFL holder, and you, the seller, make no attempt to determine if that individual is a person prohibited from owning a firearm under US law. That person then goes to a movie theater, or a night club, or a school, and proceeds to mow down a few dozen people. You really don't think, at the very least, that when it comes out that you sold a gun to someone who isn't supposed to have a gun, that at least one family member of the murdered isn't going to try and hold you responsible? Simply looking at a driver's license only tells you that person has a driver's license.

We exist in a country where civil litigation takes place all the time. Even if you didn't knowingly break any federal or state laws, that doesn't mean you couldn't be litigated by someone who feels they have been harmed indirectly by your actions because you did not take reasonable precautions.

Parents of kids killed in Newtown are trying to sue Remington for negligently manufacturing and distributing a "weapon of war" to the public. I have to believe Remington will be protected by the law, but as Frank pointed out earlier, that law does not protect a private citizen.

 

[mooosie]

Elkins45 I don't knowingly sell to a prohibited person. My responsibility under the law is to know they are old enough and are a resident. Unless I personally have known the person for a period of time how could I be expected to have personal knowledge of them?


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[TimSr]

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


What are you trying to say, Tim?

Frank explained that what someone else may do with your gun after your having sold it legally would not lead to criminal culpability on your part, but that it could lead to a civil suit.

He was responding to Post #20.

He is correct.


Quote:
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.

Surely you do not believe that such a knowing act would be considered "negligence".

Do you think that the state would try to prosecute a third party for a crime committed by someone else? Don't bring in felony homicide; that would not apply.

By the way, watch your tone.

My point is that if you knowingly make a sale to someone, or should have known that it would or could have known would be used in criminal activity, that you COULD be charged criminally? Do you disagree with that?

I agree about the "tone". I wish everyone could participate in discussion without prefacing their opinions with demeaning insults.

 

[Elkins45]

SNIP

Simply looking at a driver's license only tells you that person has a driver's license.

We exist in a country where civil litigation takes place all the time. Even if you didn't knowingly break any federal or state laws, that doesn't mean you couldn't be litigated by someone who feels they have been harmed indirectly by your actions because you did not take reasonable precautions.

Parents of kids killed in Newtown are trying to sue Remington for negligently manufacturing and distributing a "weapon of war" to the public. I have to believe Remington will be protected by the law, but as Frank pointed out earlier, that law does not protect a private citizen.

Looking at their drivers license does lend some evidence to their answer when you ask them if they are a resident of your state--which is a federal requirements for ALL FTF sales even in states with no private NICS requirement.

Regarding personal liability--this is one place where being a (relatively) poor person is a benefit. Few lawyers are likely going to take such a speculative case where the potential maximum cash payout involves a guy selling off a 100K house and a couple of used cars. Especially since their homeowners insurance probably won't be on the hook for a big judgement. Remington is perceived as having deep pockets so it might be worth the gamble.

 

[Zaydok Allen]

Looking at their drivers license does lend some evidence to their answer when you ask them if they are a resident of your state--which is a federal requirements for ALL FTF sales even in states with no private NICS requirement.

Yes that's true, but it's irrelevant to the point I was making. I mean that's a given, if they aren't a resident, you need to follow the laws.

I was talking about a person prohibited from possessing a gun by law other than residency.

 

[Sam1911]

My point is that if you knowingly make a sale to someone, or should have known that it would or could have known would be used in criminal activity, that you COULD be charged criminally? Do you disagree with that?

Nobody disagrees with that. Sure if the State can convince a jury that you knew or should have known that the buyer was a prohibited person, someone unlawful for you to sell to, or was intent on doing harm with that gun, then you would be CRIMINALLY liable. And your defense would stand on you doing all you reasonably should have done to "know, or have reason to know" that the buyer was not illegal or a very bad dude.

That's the easy question and we've already pretty well explored it.

The tougher question is of CIVIL liability, and that's the one folks don't understand as clearly. The standard for winning a civil judgment against you is much lower. It's much easier to convince a jury that you should pay for damages because they just think you should have "done a little more". Juries may have a tough time sending someone to prison if they followed the letter of the law. But they don't have such a hard time deciding that you aught to pay some (or a lot of!) money because you carry SOME level of guilt for choosing your buyer poorly.


Look at any of the high profile civil liability cases we all hear about. No, McDonald's isn't CRIMINALLY liable for some clumsy person spilling hot coffee on their bits and bobs, but a jury certainly agreed that they aught to pay a hefty price to cover the old lady's medical bills, pain, and suffering because they're partially, somewhat at fault for giving her hot coffee in the first place.

Same thing applies to your gun sale. Sure, you followed the letter of the law and there either wasn't a criminal prosecution or you were found not guilty of selling to someone you knew to be a bad guy. But, still, he shot seven nuns, a school teacher, and Barney the Dinosaur with the gun he bought from you, and ...well, you just shouldn't have sold it to him. You made a bad call on that sale, how ever much you should or shouldn't have known before hand will influence the jury to go easy or go rough on you, but in the end the sale should not have occurred. You're not criminally guilty but civilly liable.

 

[Kleanbore]

My point is that if you knowingly make a sale to someone, or should have known that it would or could have known would be used in criminal activity, that you COULD be charged criminally? Do you disagree with that

No, but the question was one of whether "anyone has been prosecuted for what another person did after a FTF sale".

 

[Frank Ettin]

...Regarding personal liability--this is one place where being a (relatively) poor person is a benefit. Few lawyers are likely going to take such a speculative case where the potential maximum cash payout involves a guy selling off a 100K house and a couple of used cars....

That's probably a big reason we haven't been seeing more of this kind of litigation. Often the possible defendants don't have enough money to make a lawsuit worthwhile. However, some people might, so it would help to understand the principles of law which might apply to cause a private seller of a gun civilly liable for harm done with the gun by the buyer and ways to ameliorate that risk.

Another reason is that it's only been relatively recently that the gun business has started to hit the radar of plaintiff lawyers. Beginning in the 1990s, plaintiff lawyers, urged by gun control advocates began pursuing civil claims against gun manufacturers and dealers based on alleged design defects and marketing practices. One of the early cases was Merrill v. Navegar, Inc., 28 P.3d 116, 26 Cal. 4th 465, 110 Cal.Rptr.2d 370 (Cal., 2001) which grew out of the 1993 rampage shooting at 101 California Street in San Francisco. That case focused (unsuccessfully) on Navegar's advertising practices.

Not long ago, two police officers won a $6 Million verdict against a gun store for selling a gun later used in a violent crime. We discussed that case here.

And there is still progressing a case, arising from the Sandy Hook rampage shooting, against Bushmaster. We discussed that case here. In that case, the plaintiffs have frame certain allegation in their complaint which reflect a claim based on negligent entrustment principles. I suspect that the plaintiffs in the Bushmaster case will ultimately fail because of the protections of the PLCAA.

But the well settled principles of negligence really apply to everything each one of us does. We are expected to exercise the ordinary care a reasonable and prudent person would to avoid foreseeable injury to others. Those principles apply to how we drive our cars, how we maintain our homes and businesses, and how we dispose of our property.

 

[Elkins45]

Yes that's true, but it's irrelevant to the point I was making. I mean that's a given, if they aren't a resident, you need to follow the laws.

I was talking about a person prohibited from possessing a gun by law other than residency.

I suppose it would have seemed more relevant to you if Inhad done a better job making the connection. So when you meet someone FTF and sell them a gun it seems only prudent that you ask them about the two things that would legally prohibit the sale: 1) are they a resident of your state and 2) are they prohibited from buying a firearm? I won't sell a gun to someone who won't answer those two questions. I can't prove they said NO to the second question but I can offer support that I asked and they answered the first. My hope is that would make it more believable that I actually did inquire about the second.

Of course, if the FBI allow private sellers to access NICS then you could show how you actually tried to check for yourself---except there are legally allowed buyers who specifically prefer private sales just because of not doing NICS even though they would pass.

 

[Derry 1946]

In some jurisdictions, unforeseeable superseding intervening cause or criminal act is available as an affirmative defense to negligence. Of course, that begs the question whether the seller had reason to foresee the deeds of the buyer, which, as Frank (and others) already pointed out, will depend on what the seller knew or should have known about the buyer. So as with most legal questions, the answer is "it depends."

 

[Frank Ettin]

...So as with most legal questions, the answer is "it depends."

Exactly. And that means that one can not rule out a seller having civil liability. So the short answer to the OP's question:

...you are the seller, can you be held legally liable if the purchaser commits a crime with that gun?...

is "maybe."

Of course, that's not a very useful answer. It doesn't offer any information to a possible seller about what he could do to limit or minimize the possibility of liability.

So we look at the legal principles which could be used to hold a seller liable for harm done by the person to whom he sold the gun. By understanding those legal principles one can consider possible ways to ameliorate the risks.

Even though it discusses the nature of a gun owners duty of due care in a different context, the storage of a gun, rather than the sale, loan or entrustment to another person of a gun, this case from gun-friendly Montana, (Estate of Strever v. Cline, 924 P.2d 666 (Mont., 1995), at 671 -- 672) offers some interesting insights:

...A firearm, particularly one that is loaded or has ammunition in close proximity, is considered a dangerous instrumentality and therefore requires a higher degree of care in its use or handling. This concept is set out in the Restatement (Second) of Torts, which provides:

Care required. The care required is always reasonable care. This standard never varies, but the care which it is reasonable to require of the actor varies with the danger involved in his act, and is proportionate to it. The greater the danger, the greater the care which must be exercised.

As in all cases where the reasonable character of the actor's conduct is in question, its utility is to be weighed against the magnitude of the risk which it involves. [Citation omitted.] The amount of attention and caution required varies with the magnitude of the harm likely to be done if care is not exercised, and with the utility of the act. Therefore, if the act has little or no social value and is likely to cause any serious harm, it is reasonable to require close attention and caution. So too, if the act involves a risk of death or serious bodily harm, and particularly if it is capable of causing such results to a number of persons, the highest attention and caution are required even if the act has a very considerable utility. Thus those who deal with firearms ... are required to exercise the closest attention and the most careful precautions, not only in preparing for their use but in using them....

Restatement (Second) of Torts § 298 cmt. b (1965).

Accordingly, given the foreseeability of the risk involved in the improper and unsafe use and storage of a firearm; given the strong policy considerations favoring safe and prudent use and storage; and on the basis of the law as set forth in §§ 1-1-204, 27-1-701 and 28-1-201, MCA, our decisions in Limberhand, Maguire, Phillips, Mang and Busta and the above referred to standards of care set forth in Prosser and Keeton on Torts and in comment b to § 298 of the Restatement, we hold that, as a matter of law, the owner of a firearm has a duty to the general public to use and to store the firearm in a safe and prudent manner taking into consideration the type of firearm, whether it is loaded or unloaded, whether the ammunition is in close proximity or easily attainable, and the location and circumstances of its use and storage.

Because we conclude that Susanj owed a legal duty to the general public to store his firearm and ammunition in a manner consistent with this standard of care,...

Note especially the discussion of what "reasonable care" means with regard to firearms (Estate of Strever, at 671, quoting from Restatement (Second) of Torts, emphasis added):

...As in all cases where the reasonable character of the actor's conduct is in question, its utility is to be weighed against the magnitude of the risk which it involves. [Citation omitted.] The amount of attention and caution required varies with the magnitude of the harm likely to be done if care is not exercised, and with the utility of the act. Therefore, if the act has little or no social value and is likely to cause any serious harm, it is reasonable to require close attention and caution. So too, if the act involves a risk of death or serious bodily harm, and particularly if it is capable of causing such results to a number of persons, the highest attention and caution are required even if the act has a very considerable utility. Thus those who deal with firearms ... are required to exercise the closest attention and the most careful precautions, not only in preparing for their use but in using them....

 

[Sebastian the Ibis]

A separate but related issue, is where are you going to do a FTF transaction with someone you met online -- who knows you have guns? I would only do this at a gun range/store anyways so doing a 4473 shouldn't be that much of an inconvenience.

 

[bearcreek]

A separate but related issue, is where are you going to do a FTF transaction with someone you met online -- who knows you have guns? I would only do this at a gun range/store anyways so doing a 4473 shouldn't be that much of an inconvenience.

I've met sellers and buyers at China-mart parking lots, truck stops, fast food parking lots and gym parking lots. Never met one at a gun store. Doesn't seem like the store would appreciate you making a transaction on their property that may directly compete with their business. You have to keep in mind that a large number of people buying guns FTF are doing so specifically because they don't want Uncle Sam snooping in their private business. In many cases any more it's really not worth buying used from a strictly monetary standpoint.

 

[Sniper66]

Best advice is CYA! I've sold several guns, but only if I have some acquaintance with the buyer. But, you can't protect yourself from rabid lawyers. There was the case a few years ago where a teenager stole a gun from his friend's grandfather. He broke into the old guy's locked gun cabinet...yes locked. The kid then shot another kid accidentally. In a lawsuit the grandfather was deemed to be 10% responsible?? So be careful, but just know you can never predict stupid.

 

[Zaydok Allen]

Link to that story?

 

[george burns]

In FL as long as they have state ID and you ask or get a signed statement that they are not a prohibited person, your good. They just failed to pass a law, trying to make the seller liable for the purchasers actions if they were a prohibited person, I heard on TV last week.

 

[Kleanbore]

In FL as long as they have state ID and you ask or get a signed statement that they are not a prohibited person, your good.

Perhaps that would suffice in establishing reasonable doubt in a criminal case.

It would likely help in a civil claim.

The problem is that there may be other factors that the seller should have known about the buyer.

They just failed to pass a law, trying to make the seller liable for the purchasers actions if they were a prohibited person, I heard on TV last week.

Of course, that does not mean that he seller cannot be liable.

 

[Elkins45]

I've met sellers and buyers at China-mart parking lots, truck stops, fast food parking lots and gym parking lots. Never met one at a gun store. Doesn't seem like the store would appreciate you making a transaction on their property that may directly compete with their business. You have to keep in mind that a large number of people buying guns FTF are doing so specifically because they don't want Uncle Sam snooping in their private business. In many cases any more it's really not worth buying used from a strictly monetary standpoint.

Suggesting the parking lot of the local police station or Sherrif's office as a meeting place might weed out some problem buyers.

 

[Frank Ettin]

In FL as long as they have state ID and you ask or get a signed statement that they are not a prohibited person, your good....

How would you know? Is there case law or a statute to that effect? And criminal liability for knowingly selling to a prohibited person is different from civil liability for negligently selling a gun to someone who misuses it. The legal principles of negligence and due care are discussed in more detail in several posts in this thread.

 

[bearcreek]

Suggesting the parking lot of the local police station or Sherrif's office as a meeting place might weed out some problem buyers.

Could be. Could cause it's own set of problems depending on the LEO department in question. It doesn't seem like that'd make a difference though as far as the concerns that Frank is expressing. I think the question was not so much about avoiding a sale to a prohibited person as much as it is about the buyer becoming a prohibited person after the sale.

 

[Elkins45]

Could be. Could cause it's own set of problems depending on the LEO department in question. It doesn't seem like that'd make a difference though as far as the concerns that Frank is expressing. I think the question was not so much about avoiding a sale to a prohibited person as much as it is about the buyer becoming a prohibited person after the sale.

Understood, but the kind of people who aren't worried about doing the transaction there might hopefully be the kind that are less likely to do something stupid at a later date.