Releasing on Undetermined

[Tyke8319]

"and the dealer may then immediately..."
"the dealer's sole discretion whether to release..."

I fail to see the "lie"!

What I do see is a risk of ambiguity The word "may" does have another meaning: "possibly will." So in the sentence "The "dealer may then release," we have ambiguity. Does the sentence mean the dealer has the authority to release? Or does the sentence mean the dealer possibly will (or might) release? It's not clear.

Until the legislature chooses to clarify the wording and thus the intent we are left with the wording as it stands and the implied discretion it asserts.

[DrJeds44]

Dictionary time. "May" denotes either possibility or permission.

"Possibility" would give discretion. But that is NOT how it is used in the PC. When "MAY" is used in the sentence "MAY THEN IMMEDIATELY TRANSFER". That removes all doubt as to the definition being used in exactly that context.

Regarding "undetermined status".....PC 28220 reads



Expressly granting immediate permission to transfer. Nothing discretionary at all is written into the law.

The same exact 'MAY THEN TRANSFER" language is used in PC when the transfer is approved.

The only place that "discretion" is implied, in relation to delivery after 30 days of "undetermined" is on Kamaltoe's DOJ website. Where she intentionally muddied the waters of "may then immediately transfer" by subtle misinformation of changing the definition of a simple 3 letter word.

https://oag.ca.gov/firearms#tabs-2

She lied in the last sentence of the above quote, and it isn't the first time she has lied on official DOJ letterhead. Just like the 4 LEO agencies that got sued for hundreds of thousands of taxpayers dollars for believing a letter she sent them regarding "mandatory registration prior to LEGR release of firearms".

Simply compare what the actual PC says, and what Kamaltoe says it says.

Even putting "WE DO NOT RELEASE ON UNDETERMINED DOJ STATUS" on paperwork prior to sale does not protect a FFL from civil liability of Contract Law. Because a contract that contradicts PC is not a valid contract. At the end of the PC mandated 30 days if a customer is not denied. FFLs are obligated to follow the law and release, or face possible civil liability.

If a FFL refuses to release after the PC mandated 30 days. The FFL has illegally denied the buyer possession of their lawfully purchased property.

JM2c

The store i work at generally does deliver on undetermined.

However, both DOJ and ATF give gun stores the ability to "profile" a customer for various violations/suspicious purchases. If a suspicion is not acted upon and a gun store delivers a firearm to the wrong person for whatever reason, the store could be held in some sort of violation.

Consider how ABC might plant an 18 year old buying alcohol with a bogus license/ID and is buying alcohol at the local liquor store.

Discretion is a major player in the gun store world whether a consumer was deemed appoved by DOJ or undetermined.

[ugimports]

Update as of 11/21/2016 22:49 Pacific: 40 yes (82%) 9 no (18%)

As a frame of reference I'm polling FFLs nationally. So far only 1 person said no, but that's because:

Long guns and "other" go out after 3 days. Handguns go through a State run system and there is no time limit. You cannot deliver until you get an approval notification no matter how long that may be.

Other comments from people that voted Yes to release so far are:

The gun goes out as soon as we can legally transfer it. If that's instant that's great. If it's after three business days, well, it is what it is.

We have customers where the FBI has never called back with a response. Thank goodness a CHL lets buyers bypass NICS in WV, I've told my customers who are regularly delayed to go get one so they don't have to wait.

If NICS doesnt respond in 3 days I give it to the customer.

I ndon't my hold as long as required, if they cannot find anything in three business days it's not my problem. I'm not going to make up my own arbitrary rules, I will follow whatever rules are in place.

other responses as of 11/16/2016 16:07 Pacific (a few more No's):

We can transfer it after 3 days but choose not to. In Oregon the state police run the BGC's, If they cant get enough info for a proceed they delay it then throw it into a pile that doesn't get followed up on for at least a month. I also found out that the OSP do things a little different than NICS. OSP rarely gives out a deny, in most cases they delay the person then research it further and deny them weeks later.

I said no in the poll, as we will not transfer until we get an approval from the VA State Police. The reason being that the VSP is very aggressive when it comes to arresting people for trying to buy a firearm when they can not legally buy one. They will arrest the individual and confiscate the firearm, and I rather not deal with the BS, I get subpoenaed enough as it is. I really don't want to go to court after I released a firearm without an approval.

My one exception to my rule is active duty military, I will transfer the firearm after 3 days without an approval for active duty military. If they can't buy a gun why are they allowed to put their life on the line for our country!

some additional comments as of 11/21:

unless theres a specific reason we would release it. we dont ever do 4473s so we dont have to worry abotu that

IF the government can't figure out if someone is a criminal in 3 business days, there -is- a problem there, but it ain't mine.

In Maryland rifles go after 3 days, handguns after 7 days. I don't make the rules, I just follow the rules already in place.

Depends what the guy looks like. :lol:

^^ this was likely a jokey joke response

After 3 days , yes

I'm aware you do not have to do a transfer. I'm also not going to agreed to accept someone's property based on the understanding I will perform a background check like the law requires and then not give it to them when they can legally take it because I want to try to play f.cking Google detective. If they come in there and say they're about to go murder their wife then I wouldn't transfer the gun. Otherwise, they lawfully get the/their gun as soon as the current infringements allow. If that's your policy then you should let customers know before hand that if you get a delay then, because you think the government is incompetent, they're going to have to wait while you formulate a skewed opinion based on what your Googlefu turns up about a person you don't know from f.cking Adam. What if their name is John Smith? Having a so-called "firearm enthusiast"/gun owners/industry professionals who are for keeping people from legally taking possession of a firearm are worse than the liberals who want to take them. Uneducated people base their opinions off what these "people in the know" say and they are polluting the cause. There shouldn't be a background check. No one said the government was perfect, but the government said they want to do a background check. So you let them run their f.cking background check and if they can't turn sh.t up in the time they allotted themselves then you give the person the gun. Is there an epidemic I'm unaware of where gun dealers are going to jail because they legally transferred a gun that was used in a crime, most likely not by the person who purchased it?

You want to be a detective? Join your local PD. If you want to do background checks all day give up your FFL and go work for NICS, I understand they could use some help.

^^ in response to some discussion if a google search would influence decisions to release
--
I think in CA we've created our own paranoia about what it means to be undetermined.

[Desertdoc]

...

[pacrat]

...[1]...The store i work at generally does deliver on undetermined.

[2]...However, both DOJ and ATF give gun stores the ability to "profile" a customer for various violations/suspicious purchases. If a suspicion is not acted upon and a gun store delivers a firearm to the wrong person for whatever reason, the store could be held in some sort of violation.

[3]...Consider how ABC might plant an 18 year old buying alcohol with a bogus license/ID and is buying alcohol at the local liquor store.

[4]...Discretion is a major player in the gun store world whether a consumer was deemed appoved by DOJ or undetermined.

Lets do this by paragraph.

[1].....Good for them. That is as it should be. Both legally and ethically.

[2].....Before there can be "some sort of violation". There has to be a law broken. Since there is no law saying not to deliver on "undetermined". Just the opposite is true, pc28220 grants express and immediate permission to release. There obviously can be no violation.

[3].....No correlation to your supposed faulty analogy. It is illegal for a minor to buy alcohol. It is also illegal for a store to sell alcohol to a minor. There is no law against an unprohibited person to buy a firearm. There is nothing illegal about a FFL following the law and releasing a firearm after 30 days of undetermined status.

[4]....Wrong again........both approved and undetermined release of firearm are worded the same in the PC. Remember that Kamaltoe's opinion is not a law.

Adding also at this time that the lame excuse of "fictional made up civil liability" for a FFL to follow the law. Rather than make up excuses to not follow the law and place themselves at risk of civil litigation. FFL's are expressly protected by the PLCAA. Which is Federal Law granting them Federal Protection from just such civil liability.

dealers,

The above quote is from a post by member "Tincon" back in 2014.

http://www.calguns.net/calgunforum/showthread.php?t=891256

Since FFLs are required to follow both Federal and State laws. It behoves them to actually aquaint themselves with those laws. Rather than unreasoned paranoia over fiction made up crap and FUD spread by others.

Any FEAR of fictional, so called liability, either civil or legal, for following the laws as written is unfounded and unreasonable. Denies their customers their 2a rights. And opens them to breech of contract litigation.

Not the kind of dealer that lawful firearms buyers would choose to do business with, if they knew their extra legal policy before buying from them.


JM2c

[DrJeds44]

Lets do this by paragraph.

[1].....Good for them. That is as it should be. Both legally and ethically.

[2].....Before there can be "some sort of violation". There has to be a law broken. Since there is no law saying not to deliver on "undetermined". Just the opposite is true, pc28220 grants express and immediate permission to release. There obviously can be no violation.

[3].....No correlation to your supposed faulty analogy. It is illegal for a minor to buy alcohol. It is also illegal for a store to sell alcohol to a minor. There is no law against an unprohibited person to buy a firearm. There is nothing illegal about a FFL following the law and releasing a firearm after 30 days of undetermined status.

[4]....Wrong again........both approved and undetermined release of firearm are worded the same in the PC. Remember that Kamaltoe's opinion is not a law.

Adding also at this time that the lame excuse of "fictional made up civil liability" for a FFL to follow the law. Rather than make up excuses to not follow the law and place themselves at risk of civil litigation. FFL's are expressly protected by the PLCAA. Which is Federal Law granting them Federal Protection from just such civil liability.



The above quote is from a post by member "Tincon" back in 2014.

http://www.calguns.net/calgunforum/showthread.php?t=891256

Since FFLs are required to follow both Federal and State laws. It behoves them to actually aquaint themselves with those laws. Rather than unreasoned paranoia over fiction made up crap and FUD spread by others.

Any FEAR of fictional, so called liability, either civil or legal, for following the laws as written is unfounded and unreasonable. Denies their customers their 2a rights. And opens them to breech of contract litigation.

Not the kind of dealer that lawful firearms buyers would choose to do business with, if they knew their extra legal policy before buying from them.


JM2c

My apologies for you not comprehending anything i said in the previous post. I was speaking generalities IE gun stores ARE given great discretion on who to give a gun to and not give a gun to.

If someone comes in on their 30th day of delay smelling like pot or alcohol, we won't deliver. If something doen't seem right we won't deliver. The guidlines we follow are given to us by ATF and DOJ.

Your "absolute must" is clearly wrong and you sound very uninformed.

AS i stated the store i work for already does generally deliver on undetermined. It still depends regardless of undetermined or approved. We have the latitude granted to us by law.

[pacrat]

My apologies for you not comprehending anything i said in the previous post. I was speaking generalities IE gun stores ARE given great discretion on who to give a gun to and not give a gun to.

If someone comes in on their 30th day of delay smelling like pot or alcohol, we won't deliver. If something doen't seem right we won't deliver. The guidlines we follow are given to us by ATF and DOJ.

Your "absolute must" is clearly wrong and you sound very uninformed.

AS i stated the store i work for already does generally deliver on undetermined. It still depends regardless of undetermined or approved. We have the latitude granted to us by law.

If you could refrain from obsfucating, deflecting, and projecting your own cognitive dissonance onto others. In an effort to make a point it would simplify the ability of others to follow your incorrect reasoning.

If someone comes in smelling like alcohol or pot, or is obviously impaired by a narcotic, or even over the counter, or prescription meds. It would be logical for any reasonable dealer to NOT deliver a firearm to them. Just as a bartender and the establishment they work for can be held civilly liable if they serve an obviously intoxicated person. And they can legally refuse service to such a person. And your interjection of the "impaired" subject, so late in the discussion really does come off as a desperate deflection. And has nothing to do with an "undetermined status, or racial civil rights violations".

It is not reasonable for a FFL to refuse to deliver a firearm strictly on an "undetermined finding" by DOJ, or a customers race, religion, ethnicity, etc. Because the dealer cannot "legally do so".

As to your underlined sentence above. Please share how your "absolute must" quote is attributed to me? I never said that. That is just another obsfucatory deflection hatched in your own mind, and then projected onto me. "Search" is your friend, if you use it, just maybe you can keep your foot out of your mouth, while trying to put words in anothers mouth.

Everything I've said here is factual and supported by written law, both Federal USC and Ca PC. And yes, even the dictionary. Which I do use as reference often, when dealing with people who intentionally misuse definitions to support untenable positions. It really is a very good book, full of useful information. You should read it sometime. Then you wouldn't sound so uninformed, and feel the need to try an demean others who are better informed on the subject being discussed.

The FACTS are now here for all to read.

Bye.

[DrJeds44]

If you could refrain from obsfucating, deflecting, and projecting your own cognitive dissonance onto others. In an effort to make a point it would simplify the ability of others to follow your incorrect reasoning.

If someone comes in smelling like alcohol or pot, or is obviously impaired by a narcotic, or even over the counter, or prescription meds. It would be logical for any reasonable dealer to NOT deliver a firearm to them. Just as a bartender and the establishment they work for can be held civilly liable if they serve an obviously intoxicated person. And they can legally refuse service to such a person. And your interjection of the "impaired" subject, so late in the discussion really does come off as a desperate deflection. And has nothing to do with an "undetermined status, or racial civil rights violations".

It is not reasonable for a FFL to refuse to deliver a firearm strictly on an "undetermined finding" by DOJ, or a customers race, religion, ethnicity, etc. Because the dealer cannot "legally do so".

As to your underlined sentence above. Please share how your "absolute must" quote is attributed to me? I never said that. That is just another obsfucatory deflection hatched in your own mind, and then projected onto me. "Search" is your friend, if you use it, just maybe you can keep your foot out of your mouth, while trying to put words in anothers mouth.

Everything I've said here is factual and supported by written law, both Federal USC and Ca PC. And yes, even the dictionary. Which I do use as reference often, when dealing with people who intentionally misuse definitions to support untenable positions. It really is a very good book, full of useful information. You should read it sometime. Then you wouldn't sound so uninformed, and feel the need to try an demean others who are better informed on the subject being discussed.

The FACTS are now here for all to read.

Bye.

Now it seems we are getting somewhere. You have finally conceded an FFL has the right to not deliver a firearm under certain circumstances.

Since you are not involved in working in a gun store and probably never have, would it be fair to say that many others reasons could exist to not deliver a gun but you are just unaware of the those reasons since you have no experience in the gun industry?

[kemasa]

Not reasonable really depends on your point of view, but I do find it interesting that some people try to tie unrelated things together in order to create a strawman to knock down. A web search can make it very reasonable, as well as who would get the blame. All the blame should go towards the government, but the media tends to blame the dealer.

A firearm dealer is not required to deliver a firearm on an undetermined finding, which makes it legal for the dealer to not do so. This makes the inclusion of aspects which it is illegal to discriminate against to be very dishonest and deceptive, as well as wrong.

The bottom line is that it is a waste of time to discuss it.

[ugimports]

Not reasonable really depends on your point of view, but I do find it interesting that some people try to tie unrelated things together in order to create a strawman to knock down. A web search can make it very reasonable, as well as who would get the blame. All the blame should go towards the government, but the media tends to blame the dealer.

A firearm dealer is not required to deliver a firearm on an undetermined finding, which makes it legal for the dealer to not do so. This makes the inclusion of aspects which it is illegal to discriminate against to be very dishonest and deceptive, as well as wrong.

The bottom line is that it is a waste of time to discuss it.

Not unless the dealer refusing to deliver basically tells them "because you're muslim" or "because you're black" or "because you're hispanic"..

which if that were really their reason they shouldn't have started the transaction in the first place...

if the shop I mentioned really thought the person that was undetermined was sketchy they shouldn't have started the transfer.. what makes "undetermined" different then "approved (or lack of denial as it would be)" if they already thought the person was suspicious? They blatantly told his friend (person A) that they would deliver to his wife on undetermined.

I don't know for sure, but I doubt they were googling his name or doing some in depth checking..I personally believe it was racial in nature, assuming it happened as the story was told to me..

I googled his name and nothing obvious came up that would arouse suspicion..

[kemasa]

I was talking about including race, etc. with the undetermined. Two separate issues, but is was included to try to make it seem like it was illegal for a FFL to not deliver on undetermined, which is false. Read BOTH sentences in the same paragraph together.

If you think that the person is sketchy AND they come back as undetermined, that could change your opinion as to whether you want to proceed or not.

Yes, that specific issue could have issues, but what I was referencing is in general, well, actually another person who had an issue with dealers not delivering on undetermined, but when you did a web search of his name, issues came up.

There is the general topic and the specific issue in one case.

[pacrat]

Absolutely not! May mean discretionary. Shall means must.

https://www.faa.gov/about/initiatives/plain_language/articles/mandatory/

Even the Supreme Court ruled that when the word "shall" appears in statutes, it means "may."

"When people who are honestly mistaken learn the truth, they will either cease being mistaken, or cease being honest!"

[Chewy65]

What is the relevance of the use of "must" instead of "shall", when the statutes Pacrat quotes say "may"? The use of "may . . .indicates discretion to act" per Pacrat's authority. Pacrat's Supreme Court decision never found that "shall" always suggests that action is discretionary, but the particular statute before it was unclear in its use of the word and by resorting to Congressional intent the word there implied discretion. Due to the word "shall" so often requiring judicial review it has been recommended to avoid its use, but the statutes here did just that! They say, "may"; not "shall".

...the dealer may then immediately transfer...

To argue that if "shall" can mean "may" means that "may" means "shall" is no different than arguing that because all squares are rectangles then all rectangles are squares. Why some can't see the ridiculousness of their argument is, to resort to the finest legal jargon, stupid, stupid, and stupider.

[Califpatriot]

What liability does a dealer face for legally releasing a gun that ends up being used in a crime? Is there any evidence of a prosecution for that?

[ugimports]

What liability does a dealer face for legally releasing a gun that ends up being used in a crime? Is there any evidence of a prosecution for that?

1. Unknown
2. Not that i'm aware of