Releasing on Undetermined

[Chewy65]

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?

I suggest that you do your own work, counselor. Riddle me whether or not the risk of liability is broader than criminal liability. Consider all the attendant when neither criminal nor civil liability is imposed. Costs of defense, the cost of loss business, possible loss of a business license or increased costs of obtaining one, the loss of or an increase in premiums for insurance coverage. How about a dealer simply not wanting to risk feeling a sense of moral responsibility for the shooting of another, even if legal liability be absent.

I decided to give you a hint, since you appear to find the pursuit of your profession a bit too challenging. If there have been no cases, why have there been so many appellate decisions holding this way and that?

[Chewy65]

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

Ugi. Someone thinks a FFL only has to worry about criminal prosecution.

[ugimports]

Ugi. Someone thinks a FFL only has to worry about criminal prosecution.

My answer applies to civil too

[Chewy65]

Ugi. Here is a link to a random article on Gun Store Liability.

[kemasa]

The problem is that it is unlikely that you will ever really "win". In order to win, it means that if someone were to sue you, that you would get a LOT of money, over and above the cost of your lawyer, for all the lost time and effort you had to put into defending yourself.

Generally, the best case is that you hire a lawyer, spend a lot of money and get the lawsuit dropped and that is the end of it. No endless appeals and constantly defending against it.

[Chewy65]

The problem is that it is unlikely that you will ever really "win". In order to win, it means that if someone were to sue you, that you would get a LOT of money, over and above the cost of your lawyer, for all the lost time and effort you had to put into defending yourself.

Generally, the best case is that you hire a lawyer, spend a lot of money and get the lawsuit dropped and that is the end of it. No endless appeals and constantly defending against it.

Yep, and with the emphasis on get. Absent a contractual provision, in the American system the prevailing party isn't awarded attorneys fees. It is possible to get attorney fees, and I suppose something for lost time, depending on if that contract allows for them. Trying to quantify damages for lost time, and especially effort, could be problematic, but that is smoke in the wind. You won't have any kind of a contract with an third party injured by your buyer.

1. There isn't going to be a contract between you and the injured party.

2. Even if you could get a judgment as a prevailing party, the plaintiff is going to be judgment proof.

3. Should you have a contract with the gun buyer that allows for attorney fees and all, fat chance on recovering anything from them on a cross-complaint.

Forgive me if this is getting off topic, as the only relevance here is to establish that a FFL indeed faces exposure for loss, they incur liability, when they deliver even though delivery is permitted by the DOJ. This is so even if DROS is approved or undetermined. An valid argument can be made that there is always a risk, and that would explain why the statutes use the permissive "may" in both the codes for approveds and for undetermineds.

[kemasa]

Also remember the BATF says that a FFL can choose to not do the transfer for any reason. Then again, there are those who claim that they can sue a FFL for not doing the transfer, but I have yet to see that happen.

[kemasa]

Yep, and with the emphasis on get. Absent a contractual provision, in the American system the prevailing party isn't awarded attorneys fees. It is possible to get attorney fees, and I suppose something for lost time, depending on if that contract allows for them. Trying to quantify damages for lost time, and especially effort, could be problematic, but that is smoke in the wind. You won't have any kind of a contract with an third party injured by your buyer.

In some cases you can get attorney fees without a contract, but it is not likely.

Even with a contract, it doesn't have to mention attorney fees in order to get them. I had to sue for undisclosed earthquake damage to a house and got attorney fees due to the fraud, but even in that case I didn't "win" as the judgement only awarded costs, no punitive. Due to the stupidity of the sellers, I did "win" and get additional money as they didn't follow the judgement.

[Chewy65]

In some cases you can get attorney fees without a contract, but it is not likely.

Even with a contract, it doesn't have to mention attorney fees in order to get them. I had to sue for undisclosed earthquake damage to a house and got attorney fees due to the fraud, but even in that case I didn't "win" as the judgement only awarded costs, no punitive. Due to the stupidity of the sellers, I did "win" and get additional money as they didn't follow the judgement.

I was only speaking of the general rule and whether attorney fees are recoverable for breach of contract. If you got attorneys fees due to the fraud, you did not get them for breach of contract. You may or may not have had an attorneys fees clause in your real estate purchase agreement.

[pacrat]

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".

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.

CHEWY...............YOU DO KNOW THAT "CROSS POSTING" is against the CG rules don't you?

You seem to think you are immune to CG rules. Like you support Kamala's big LIE. And suggest CDFL/FFL's not follow the firearms laws of Ca.

You embarrass yourself with unsupported BS, deflections, and obsfucations, on one forum. Then cross post on another hoping to find others as blissfully ignorant as yourself, to agree with you.

Just passed sad, and quickly approaching the pathetic threshold.

For members of the FFL forum. Geometry is just another of many topics Chewy should not expound on. Which includes "Statutes as Written, Legal Vocabulary and Legal Definitions".

Sorry Chewy, USUX at geometry.

A square has 4 equal sides.

A rectangle has 2 equal opposing sides, that are longer, than the other 2 equal opposing sides.

ERGO............A square, is NEVER a Rectangle. And a rectangle, is NEVER a square. No matter what anyone claims.

Which is about as close as Chewy gets to being right on a plethora of varying subjects.

.................................................. .................................................. ....

Which brings into question this link HE provided and attributed to me. As "Pacrat's authority". I can't find any post after extensive searches. That attribute that link. To anything I have posted.

https://www.archives.gov/federal-register/write/legal-docs/clear-writing.html

.................................................. .................................................. .....
I did post this link here earlier in this thread, back in necrotime of 11-18-2016. Which included the quote below. Which aptly supported my position.

https://www.faa.gov/about/initiative...les/mandatory/

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

And this link in the THREAD Chewy is cross posting from. And the quote below. Which BTW also supports my position.

https://legal-dictionary.thefreedictionary.com/May

may

v. a choice to act or not, or a promise of a possibility, as distinguished from "shall" which makes it imperative. 2) in statutes, and sometimes in contracts, the word "may" must be read in context to determine if it means an act is optional or mandatory, for it may be an imperative. The same careful analysis must be made of the word "shall."

Non-lawyers tend to see the word "may" and think they have a choice or are excused from complying with some statutory provision or regulation. (See: shall)2. Whenever a statute directs the doing of a thing for the sake of justice or the public good, the word "may is the same as shall. For example, the 23 H. VI. says, the sheriff may take bail, that is construed he shall, for he is compellable to do so. Carth. 293 Salk. 609; Skin. 370.

3. The words shall and may in general acts of the legislature or in private constitutions, are to be construed imperatively;

I can only come to the conclusion that he got the "pacrat authority link" either from his own prevaricative imagination. Or possibly from his non existent Geometry Book.

[pacrat]

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?

As long as a FFL follows all relevant laws. And doesn't put himself in "negligence" jeopardy by doing something obviously stupid.


Like sales to a person obviously inebriated, under influence of drugs, or tells the FFL he wants a gun so he can commit a crime with it.

The answer would be a definite NO.

"PLCAA" covers criminal and civil immunity for FFL Dealers and manufacturers.

This is also from the thread Chewy is Cross Posting from.

Disproving that there is even a possibility of any liability due to lawful acts by FFLs. Because they have blanket protection under Federal Law.

Underlined at bottom in quote is my summation.

And here is a link to a thread that includes the entire J. Davis esq letter to the CAL-FFL org he represents from Feb 7, 2014.

http://www.calguns.net/calgunforum/showthread.php?t=1507698&highlight=Davis

Letter is in post #12. It's only 19 posts long. And an informative read. Started as "undetermined status" and morphed into "breech of contract".

[kemasa]

Think carefully if you want to take advice from a person who says that he is a "beat up old retired construction worker" and who says that a lawyer who wrote a memo regarding breech of contract has a "flaw" in it, so that aspect should be ignored and the old construction worker" should be listened to instead.

Follow the link posted above and read ALL of the comments.

[taperxz]

Think carefully if you want to take advice from a person who says that he is a "beat up old retired construction worker" and who says that a lawyer who wrote a memo regarding breech of contract has a "flaw" in it, so that aspect should be ignored and the old construction worker" should be listened to instead.

Follow the link posted above and read ALL of the comments.

I was told directly by our DOJ rep in regards to a strange set of circumstances on the delivery of a handgun that it is DOJs position that if a FFL refused delivery to an individual for the wrong reasons, they are in fact opening themselves up to a civil rights case and breach of contract issues

[kemasa]

I was told directly by our DOJ rep in regards to a strange set of circumstances on the delivery of a handgun that it is DOJs position that if a FFL refused delivery to an individual for the wrong reasons, they are in fact opening themselves up to a civil rights case and breach of contract issues

Yes, if you discriminate, you can have a big problem, which is very different than not delivering on undetermined unless you selectively release based on race or some other issue. Also remember that they said that if a FFL delivers on undetermined, the FFL could have a problem. I forget where I saw that, but I do remember it.

[taperxz]

Yes, if you discriminate, you can have a big problem, which is very different than not delivering on undetermined unless you selectively release based on race or some other issue. Also remember that they said that if a FFL delivers on undetermined, the FFL could have a problem. I forget where I saw that, but I do remember it.

My lawyer reminds me that, the same words are used in the law for approved and undetermined.

“The dealer may deliver the firearm”

In other states there may be a 3 day hold on a NICS check. After 3 days, if there is no denial, the firearm may then be delivered.

There is no reason for an FFL to be involved in the actual determination of the actual background check. If an FFL has no way to see a potential crime, there is no reason not to deliver the firearm. Not including our usual observations of straw purchases, words said to us admitting a potential crime or intoxication. Any abnormality