California FFL Transfer Problem (Update #1)

[mbcris]

This is an update to my original post http://www.calguns.net/calgunforum/s....php?t=1023068

I've verified with the CA DOJ, ATF and police department that there was nothing illegal about the shipment to the FFL or the legality of the Sig 716 Lower Receiver. This was a legal transfer. This has also been verified through several local FFL's with knowledge of California law.

We contacted an attorney...he suggested this is a civil (small claims) matter.

The ATF is only concerned with how the firearm was logged by the FFL. They don't consider it stolen and even if it was, there's nothing they can or will do. I actually talked with the agent to whom the FFL spoke. They've known each other for a long time and described the FFL as a real "character". He did place a call to the FFL and asked if he would return what's left of the firearm to me. The FFL refused unless he get's a release of liability. Although he's surprised by the FFL's actions, they don't intend to do anything about it.

The CA DOJ confirmed there is no B&P code that would restrict the FFL from transferring the firearm to the buyer. He was surprised an FFL would destroy a firearm. He's never heard of this happening as the destruction of firearms is traditionally a law enforcement responsibility.

The officer to whom I spoke at the police department was very knowledgeable about firearms and the law. He also placed a call to the FFL to get his side of the story. He asked if the FFL would return the firearm to the police department but he refuses (again) unless he gets a release of liability. The police department won't take a stolen firearms report, although they feel it's a grey area.

There's still two open issues...

1) The FFL is in possession of a firearm I purchased in my name. I don't have any proof the firearm was destroyed and I'm concerned that it could fall into the wrong hands. If it's used in the commission of a crime, it will certainly be traced back to me. Having to maintain proof that I shipped the firearm to the FFL is of little comfort.

2) We're moving forward with a small claims law suit for damages and to get the parts of the firearm back into my possession.

It's eye opening that an FFL can pervert the law, destroy a firearm and keep it from its rightful owner with little or no accountability (ATF/DOJ) or criminal liability. Other than a civil (small claims) law suit, there doesn't appear to be anything in the law that would prevent an FFL from engaging in this type of activity.

[tquizzle]

I am interested what FFL took this firearm from you since I would love to avoid him.

[rromeo]

Issue #1 is not an issue. The FFL received the firearm, so it should be logged into his book. He has broken federal law if he didn't.

[gsxr310]

I'd like to know the ffl dealer as well. Hope you get everythkng sorted out.

[lugnutwrench]

Some suggestions

It's eye opening that an FFL can pervert the law, destroy a firearm and keep it from its rightful owner with little or no accountability (ATF/DOJ) or criminal liability. Other than a civil (small claims) law suit, there doesn't appear to be anything in the law that would prevent an FFL from engaging in this type of activity.

This is a nuance most people don't appreciate. If you have an avenue to recover civilly (and perhaps seek punitive damages), that avenue is provided by law. Many crimes have direct analogs in civil tort law (theft <-> conversion). In addition, you might be able to recover on breach of contract or negligence theories. Civil law actually gives you more theories on which you can get paid. Criminal law may allow fining or jailing the guy, but you won't see a dime. In fact, the cost of defending against criminal suits can be so expensive, there's often nothing left over for the victims. If you want to be made whole, you have to sue civilly, period.

The advice you've received to consult an attorney is probably good, but you may be hard-pressed to find an attorney willing to open herself up to malpractice liability by advising you on a small claims case. Maybe you have a friend or relative who's gone to law school?

You didn't ask, but here's my take on small claims based on some of my own experiences. (This isn't legal advice.)

I don't know if Oregon law allows it, but I would file in your county of residence first (home field advantage, make the FFL travel to defend). A judge may be reluctant to hear the case for an out-of-state defendant, so you'll need to familiarize yourself with Oregon's long-arm statutes (allowing you to drag an out-of-state defendant into your court) and whether they apply to small claims cases. If the FFL advertises via a website that is accessible in Oregon, this may help. It would further help if (on that website), the FFL advertises services facilitating incoming transfers from out-of-state. Further, you or your friend could testify that, upon inquiry, the FFL accepts out-of-state transfers (i.e., solicits business from out-of-state, including Oregon).

If you haven't already, buy and read this:

http://www.nolo.com/products/everybodys-guide-to-small-claims-court-nscc.html

If you end up having to file in California, you'll want read these as well:

http://www.amazon.com/California-Judges-Benchbook-Claims-Consumer/dp/0314627332/

http://www2.courtinfo.ca.gov/protem/pubs/bg34.pdf

The book is expensive, but it's the actual manual the judge follows when hearing small claims cases in California. Conform your case to that manual, and present your facts simply and in such a way to directly ties to all of your avenues of recovery, and you should be fine.

This is the California-specific version of the above Nolo book, which you'll want to read if your suing in California:

http://www.nolo.com/products/everybodys-guide-to-small-claims-court-in-california-cscc.html

No matter where you end up filing, assemble as much relevant documentation as you can (e-mails, web page printouts, receipts showing the cost of the firearm, quotes on replacement costs, etc.). Put it in a binder with numbered tabs, one tab per document (i.e., exhibit). Make three copies. The original is for yourself. One copy is for the judge. One copy is for the defendant. One copy is a spare.

Do not expect the judge to read through your binder. When you initially present your case, present the simplest story that you can that allows you to recover. Do not include anything other than those facts which directly support your case. Refer to the exhibits for documents supporting those facts at each relevant point. It helps if the documents are in the order in which you intend to present them. (Linear storytelling is easiest to understand.)

Whether or not it's fair or just, you have a limited time to present your case, and the judge may get annoyed if you are disorganized or take too long. Answer the judges questions succinctly. Do not expressly or impliedly insult the defendant. Get into the mindset that he is a business owner trying to do his best to make a living who just happened to make a mistake and treat him that way. Do not speculate or insinuate that he is a bad person. Just present the facts. I'm guessing your most compelling story will be something like: you engaged him for the service of lawfully delivering the firearm to the buyer; you sent your firearm in accordance with that arrangement; the firearm was legally deliverable to the buyer; rather than delivering it to the buyer, or, in the alternative, returning it to you, the defendant, confusingly and without any notice to you, willfully and unnecessarily destroyed the firearm. Further, the defendant refused to provide proof of its destruction.

Some courts provide mediation services that are free to litigants (they are usually facilitated by trained mediators or lawyers who volunteer). If yours does, tell the judge you'd like to try to mediate your case. If it's not clear, tell the bailiff at the beginning of the calendar that you're present, but you would like an opportunity to see if you can resolve the matter yourself. Ask permission to leave the courtroom to discuss settlement with the defendant. Don't spend more than 30-40 minutes though. When you are finished (whether you settle or not), let the bailiff know whether you settled, and ask to be heard in turn. You'll want to speak to the judge whether you settled or not (either to present your case, or to get the terms of the settlement on record).

This does two things: it shows the judge you're reasonable; if successful, it will free the judge from having to deliver an opinion (which the judge will appreciate). If the defendant disagrees, it shows the defendant is unreasonable. This isn't supposed to matter, but it may depending on how cranky the judge is.

If you settle the case, and no one is there to help you draft a settlement agreement, you'll want the agreement on record, and you'll want some way to enforce it. For example, the defendant has agreed to pay you $X by Y date, and if those terms are not met, the defendant stipulates that you can come back into court and get a judgment for $Z by presenting evidence (your testimony) that he breached that agreement, and that he agrees to pay the costs for enforcing that judgment. If you get to that point, read up on enforcing judgments for obstinate defendants. It's not as easy as you think.

[lugnutwrench]

...

You didn't ask, but here's my take on small claims based on some of my own experiences. (This isn't legal advice.)

...

Also, keep track of all your costs in preparing for the law suit including receipts for any of the books you bought, travel you made, including travel to/from a law library to research your case, lost work to attend court (don't include the time you spent to prepare your exhibits or testimony, though), long-distance phone calls to the FFL to try to resolve the matter, to your friend trying to gather facts, etc. Include these in the damages you're seeking, but itemize them as separate expense you incurred for litigation. Accept that the judge may not award any of these.

[mbcris]

In order to file a case in the Josephine County Courts, you must be able to answer "yes" to one of the following questions:

Did the incident happen in Josephine County?
Does the defendant(s) live in Josephine County?

The defendant doesn't live in Josephine County and I'm not so sure I can answer yes to question #1.

[mbcris]

Here's his latest salvo...

"My action was justified, legal and easily defend-able in court."

FWIW, he has experience as an expert witness...courts are not unfamiliar to him.

[mbcris]

I think the court will find it interesting that the buyer and I have been left in the dark as to the law he's using to justify destruction of the firearm.

We've asked for clarification on several occasions...and as he's relying on this law to justify his actions, it shouldn't be hard for him to reference the code.

It may be hard for us to put up a defense to some obscure area of the law if we don't know what it is until we're seated in front of the judge.

[lugnutwrench]

I think the court will find it interesting that the buyer and I have been left in the dark as to the law he's using to justify destruction of the firearm.

We've asked for clarification on several occasions...and as he's relying on this law to justify his actions, it shouldn't be hard for him to reference the code.

It may be hard for us to put up a defense to some obscure area of the law if we don't know what it is until we're seated in front of the judge.

I take "put up a defense" to mean you'll have to address this in one way or another. Keep in mind that until he responds with counterclaims, you're the "moving party" and he doesn't have an avenue to seek relief (meaning you have possession of the ball, and he's on defense). You'll know if he's trying to counter-sue you well before you walk into court. (He has to serve you with his claims just like you have to serve him.) If he tries to seek damages against you during your hearing without providing you notice, a good judge will cut him off. If not, you should object and say as far as you were aware, you're the only plaintiff in the case, and you weren't provided any notice of his claims.

However, one of his defenses to your claims might be that he followed a path the law allows. He probably does not have to provide notice of his defense strategy before your hearing. You should put yourself in his shoes and try to think of all the ways you can weasel out of your own claims, even if they're flawed. He may be relying on a misunderstanding of law. You want to anticipate what he's going to rely on, so you can be prepared to educate the judge on any misinterpretation (or misrepresentation) the law on your rebuttal.

Also, you might still be able to recover, even if his act was not criminal. If the law affords him an opportunity to destroy and an opportunity to return the firearm to you, and he chose to destroy (either willfully if he was fully aware of his options, or negligently because he was ignorant of all of his options), you might still be able to recover under multiple theories (breach of contract, negligence in misunderstanding or not researching his options that would have prevented you from having to replace the firearm, etc.).

You'll want to read the material I cited as well as research any applicable law and familiarize yourself with as many applicable nooks and crannies (both from your perspective and from his) as you reasonably can. (Now you can probably start to see why lawyers take so much time to prepare for trial.)

Again, this isn't legal advice, just lay advice based on my own experiences on what works and what doesn't.

[lugnutwrench]

For research, try searching for terms like:

• california law destroy firearm
• california law destruction firearm
• california law dealer destroy firearm
• california law dealer destruction firearm
• ...?

See what you can come up with. Just be aware that it's probably going to take some time and effort on your part. Good litigants don't stop when they've found one thing. They stop when they're confident they thoroughly understand all the relevant law.

But the best advice I can give you is: consult a competent attorney if at all feasible.

[lugnutwrench]

In order to file a case in the Josephine County Courts, you must be able to answer "yes" to one of the following questions:

Did the incident happen in Josephine County?
Does the defendant(s) live in Josephine County?

The defendant doesn't live in Josephine County and I'm not so sure I can answer yes to question #1.

It's #1 why you'll want to research jurisdiction and venue laws in your county. How you would try to establish the incident happening in (at least in legally-significant part) is that he solicited business from entities residing in your county, for example by having a website accessible to your county's residents advertising the ability to receive firearms from out-of-state for private party transfers. Does he have a gunbroker.com account? If so, you can try looking at listings that were active at the time you performed the transfer that show his terms for selling out-of-state (sometimes FFLs will paste blanket notices that include terms for receiving firearms as well). Either way, if you could find something like this, you can show he maintains an interstate presents and solicits business from out-of-state.

If you don't mind paying the filing fee and doing more research, you can always try to file in your county. Plan as if the defendant is going to show up and you'll get to present your case in chief. Also be prepared to provide evidence showing your county court is appropriate.

If the defendant is a no-show and if the judge wants to dismiss because of improper venue, ask that the case be dismissed without prejudice so you can seek the relief in the proper court. As a silver lining, you will have a chance to practice before the real deal.

[mbcris]

It's #1 why you'll want to research jurisdiction and venue laws in your county. How you would try to establish the incident happening in (at least in legally-significant part) is that he solicited business from entities residing in your county, for example by having a website accessible to your county's residents advertising the ability to receive firearms from out-of-state for private party transfers. Does he have a gunbroker.com account? If so, you can try looking at listings that were active at the time you performed the transfer that show his terms for selling out-of-state (sometimes FFLs will paste blanket notices that include terms for receiving firearms as well). Either way, if you could find something like this, you can show he maintains an interstate presents and solicits business from out-of-state.

If you don't mind paying the filing fee and doing more research, you can always try to file in your county. Plan as if the defendant is going to show up and you'll get to present your case in chief. Also be prepared to provide evidence showing your county court is appropriate.

If the defendant is a no-show and if the judge wants to dismiss because of improper venue, ask that the case be dismissed without prejudice so you can seek the relief in the proper court. As a silver lining, you will have a chance to practice before the real deal.

Thanks...these are all good suggestions. I especially like the idea of a tabbed binder.