Failed Background Check

[Wicked Pete]

I was going to buy a rifle at a pawn shop. The guy wanted 1/2 as a deposit and kept saying: "If you fail the BC, you don't get your deposit back."

I said goodbye.

[CS Sports]

The firearm is not yours until it is released. By law it goes back to the seller if you fail the background check. You will have to contact the seller to get your money back. If they refuse you can take them to court.

So think about this for a minute, a prohibited person commits a crime when they attempt to purchase a firearm. They fail the background check, and their next move is to go into court and admit on the record that they committed the crime of trying to purchase a firearm when they were prohibited? Now not only have they committed a crime, but they have also sworn under oath that they did in fact commit that crime.

Seems like Darwinism at it's finest.

[Packy14]

gun belongs to seller not buyer in this situation. If the seller is nice, they may refund you minus whatever they decide is fair...but they don't have to.

[JDay]

So think about this for a minute, a prohibited person commits a crime when they attempt to purchase a firearm. They fail the background check, and their next move is to go into court and admit on the record that they committed the crime of trying to purchase a firearm when they were prohibited? Now not only have they committed a crime, but they have also sworn under oath that they did in fact commit that crime.

Seems like Darwinism at it's finest.

They already did that when they signed the DROS and 4473. Both are legal documents and advise you that lying on them amounts to perjury.

Sent from my SGH-T999 using Tapatalk 2

[Bmars06]

gun belongs to seller not buyer in this situation. If the seller is nice, they may refund you minus whatever they decide is fair...but they don't have to.

Wrong (but good try.)

A legal action similar to Unjust Enrichment may be brought where it would be "unjust" for the seller to retain property (in this case money) from the buyer. Obviously, the buyer would have to establish that it would be "unjust" for the seller to retain the purchase price of the firearm. Realistically, this would not be very hard given the fact that the buyer came out empty-handed from the transaction (granted it was his fault, but courts of equity do not care.) Once established, a court may compel the seller to return to buyer the buyer's "unjust" gains from the transaction (i.e., the purchase price, with possible offsets).

Also, if the sale was contractual, the buyer could also seek to rescind the contract through mistake or other qualifying legal theories. Again, if established, a court may compel all parties to return to the other the consideration they received from the agreement.

Of course, this is not legal advice and you should always seek your own legal advice from a retained attorney.

[Bmars06]

[QUOTE=JDay;11311353]They already did that when they signed the DROS and 4473. Both are legal documents and advise you that lying on them amounts to perjury.

In general, one cannot be convicted of committing a crime without general or specific intent (otherwise known as a requisite mental state). Here, it appears the OP did not know he was going to fail a background check and even if your above hypothetical was remotely true (about going to court and somehow committing a crime), there would likely be no requisite mental state showing he intended to commit a crime (whatever crime you think he could have committed).

[9mmepiphany]

Yep, when a PPT buyer fails BG, I have to return pistol to seller.

Tough situation, as a seller I would have probably already spent the money. I think it would be fair for the seller to give you your money back minus his time and travel expense.

Don't forget that there is the cost of lost opportunity.

The seller would have lost potential buyers during the time the gun was off the market. I would think a reasonable offset would be between 1/3 to 1/2 the cost of the gun

[Bmars06]

Don't forget that there is the cost of lost opportunity.

The seller would have lost potential buyers during the time the gun was off the market. I would think a reasonable offset would be between 1/3 to 1/2 the cost of the gun

The seller would have to prove, likely only through a preponderance of the evidence, that he would have realized another sale but for the buyer's intervention. However, lost opportunity (or commonly referred to as lost profits) are only available for sellers who are in the business of selling that particular good (and thus not your average private seller).

[JDay]

[QUOTE=Bmars06;11311861]

They already did that when they signed the DROS and 4473. Both are legal documents and advise you that lying on them amounts to perjury.

In general, one cannot be convicted of committing a crime without general or specific intent (otherwise known as a requisite mental state). Here, it appears the OP did not know he was going to fail a background check and even if your above hypothetical was remotely true (about going to court and somehow committing a crime), there would likely be no requisite mental state showing he intended to commit a crime (whatever crime you think he could have committed).

You know the saying "ignorance of the law is no excuse"? That likely applies. I also find it hard to believe a prohibited person wouldn't know they're prohibited, I bet a jury would too. In fact prohibiting offenses are listed on the paperwork.

Sent from my SGH-T999 using Tapatalk 2

[Bmars06]

[QUOTE=JDay;11312921]

You know the saying "ignorance of the law is no excuse"? That likely applies. I also find it hard to believe a prohibited person wouldn't know they're prohibited, I bet a jury would too. In fact prohibiting offenses are listed on the paperwork.

Sent from my SGH-T999 using Tapatalk 2

Happens all the time. Realistically, there does not appear to be a criminal issue here. Proving beyond all reasonable doubt that he knew he would be prohibited from purchasing a gun at the time he submitted the check is going to be very unlikely. And in the real world, even if there was a perjury situation, extremely rare to see it prosecuted.

[jimx]

Isnt there a thread in 2A for people who have been denied for stupid reasons? I thought I read that some people were denied for owing money on traffic tickets? And for child support?

Im not arguing one way or the other but I could have swore I read somewhere that in CA they were delaying people for the dumbest reason.

It is a sticky

http://www.calguns.net/calgunforum/showthread.php?t=656150

[ElDub1950]

.....
Not sure how a failed buyer would do in court if the seller told him to pound sand. Not too many judges are going to be sympathetic to a prohibited person purchasing a firearm.

Since the plaintiff (buyer) was attempting an illegal purchase he would have 'unclean hands' and the court wouldn't help him. not a lawyer I just watch too much Judge Judy

[Bmars06]

Since the plaintiff (buyer) was attempting an illegal purchase he would have 'unclean hands' and the court wouldn't help him. not a lawyer I just watch too much Judge Judy

That's the thing with legal television shows, they are not entirely accurate (also laws change for state to state considerably).

Unclean hands doctrine requires the equitable relief sought be centrally related to plaintiff's own "outrageous conduct." Granted illegality is generally considered "outrageous conduct" for this purpose, the defendant (seller) would still have to show that he committed some sort of illegal act. To clarify things, attempting to buy a firearm without knowledge that they will fail a background check (whether it is for back child payment or something else), is not a crime in California (unless you're a felon, of course).

[orangeusa]

I just wanted to know what would happen.

My background is clear

Why the heck didn't you PHRASE IT PROPERLY? As a question instead of a situation.

<arghghggh>

[george223]

A friend of mine, who I have known for 30 years, failed a background check about a year ago due to a mixup with identity. Apparently someone, with the same name as his, in Florida (3000 miles away) commited a felony and my friend's name came up as a prohibited person.

My friend had to clear up his name by sending a copy of his fingerprints to the FBI. The FBI concurred that he was not the guy in Florida but could not clear him because his fingerprints brought up another issue. Back in 1974, when he was a kid, he and a friend decided to go joy-riding and stole a car. He was arrested but not convicted of auto theft. The FBI told him that he had to clear this up. Huh? 39 years later?

My friend has bought numerous firearms over the years and has also held a DOD security clearance throughout his career in the defense industry. This has never come up in the past. And they are not kicking his door down to confiscate his guns, yet.

So, for those who wonder how someone would not be aware of how their background check would turn out. It does happen. It still has not been cleared up.