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Sold a firearm but buyer doesn't pass NICS

Discussion in 'Shooting Related Threads' started by skeet_man, Sep 22, 2011.

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  1. skeet_man

    skeet_man Well-Known Member

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    Sold a firearm but buyer doesn

    I've never had this happen, but am curious as to how to handle the situation should it arise. I really don't think its fair to the seller to have to accept a return, when in all likelihood the buyer knew he probably wasn't going to pass. On the buyer's end, what would he be left to do if the seller won't accept a return, and he can't receive the firearm, leave it w/ the FFL to try to sell for them?

    Just hypothetical.
     
  2. kiv-c

    kiv-c Member

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    Seems to me that it would be wise for the receiving FFL holder to require a deposit up front, in the amount of shipping, to cover a return if this should happen.

    Kiv
     
  3. superxjeff

    superxjeff Active Member

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    I saw this exact situation happen at a local gun dealer. The man had special ordered the gun and paid in advance. The dealer couldn't send the gun back for whatever reason. The dealer sold the gun for the guy. Jeff
     
  4. Shooting Coach

    Shooting Coach Well-Known Member

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    I have had this happen several times. I sell the gun for the person on consignment. I still have a gun on the shelf for that reason. The seller should not be expected to take a return. It is up to the buyer to make sure any firearm is legal for him to own.

    The buyer hoped he could slip through the cracks. If an error, he can appeal and will be told how to update info on him (such as expungement or dismissed charges), if it can be fixed.
     
  5. ChetH

    ChetH Member

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    Perhaps running check earlier in the process would solve the problem?

    chet
     
  6. skeet_man

    skeet_man Well-Known Member

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    A NICS check can't be run by anyone but the FFL dealer, and it can't be run w/ out the 4473 filled out.
     
  7. birdogs

    birdogs TS Member

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    The sale is null and void and the gun goes back to the seller.

    Why would the seller send the gun to a receiving FFL until AFTER the buyer passed the NICS? Also, why would a seller special order a gun until after the buyer passes the NICS?
     
  8. skeet_man

    skeet_man Well-Known Member

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    JF- Can you say gold mine for identity theft? Also, a NICS check is not available unless you have a filled out 4473 in front of you, filled out by the buyer. Your FFL can't simply call NICS w/ some information and run a check on a 3rd party.
     
  9. GrandpasArms

    GrandpasArms Active Member

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    I have this on our website pages:

    NOTE: If a background check fails for the original buyer, Grandpa’s Arms, Inc. will hold the firearm(s) until a legal resolution is found. The original buyer is responsible for our regular transfer fees PLUS all expenses incurred resolving the situation.

    I hope it never happens, but if it does, I plan to not get stuck holding the bag.

    Larry Frieders
    Grandpa's Arms, Inc.
    http://www.grandpasarms.com
    340 Marshall Ave #100 | Aurora, IL 60506
    Office: 630-859-0333 Cell: 630-992-7513
     
  10. spitter

    spitter Well-Known Member TS Supporters

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    It would be unfortunate for the seller, but the buyer has to have the capacity to enter into a contract. Without capacity to buy, a contract can not exist. To suggest the hypothetical buyer knows he has no capacity, you are arguing that the buyer is attempting to induce a seller into an illegal transaction. Could it not be possible that the buyer heretofore had no knowledge of a change in their status or that an error exists?!

    To be blunt, a seller should perform more due diligence in advance of selling a firearm. However, in this day and age... sell, sell, sell, and hope we get no refunds - otherwise, I could see a situation where the BATF might want to charge a seller with an illegal sale of a firearm...

    Be happy to get your firearm back as a return and not spend a good part of your life in paperwork clearing your name...

    If you have the concern, put in a penalty clause for non-performance.

    regards,

    Jay
     
  11. Rick Barker

    Rick Barker Well-Known Member

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    Here are highlights from the Brady bill. A person may be denied for the following reasons. Note that if the background check does not come back within 3 days, the transfer may be completed without penalty to seller.


    "Section 922(g) of the Brady Act prohibits certain persons from shipping or transporting any firearm in interstate or foreign commerce, or receiving any firearm which has been shipped or transported in interstate or foreign commerce, or possessing any firearm in or affecting commerce. These prohibitions apply to any person who:

    1.Has been convicted in any court of a crime punishable by imprisonment for a
    term exceeding one year;

    2.Is a fugitive from justice;

    3.Is an unlawful user of or addicted to any controlled substance;

    4.Has been adjudicated as a mental defective or committed to a mental
    institution;

    5.Is an alien illegally or unlawfully in the United States;

    6.Has been discharged from the Armed Forces under dishonorable conditions;

    7.Having been a citizen of the United States, has renounced U.S. citizenship;

    8.Is subject to a court order that restrains the person from harassing,
    stalking, or threatening an intimate partner or child of such intimate
    partner, or;

    9.Has been convicted in any court of a misdemeanor crime of domestic violence.

    10.Has a record of being a felon


    Section 922(n) of the Act makes it unlawful for any person who is under indictment for a crime punishable by imprisonment for a term exceeding one year to ship or transport any firearm in interstate or foreign commerce, or receive any firearm which has been shipped or transported in interstate or foreign commerce.[1]

    In rare cases, a gun purchaser may have to wait for up to three business days if the NICS system fails to positively approve or deny his/her application to purchase a firearm.

    If a denial is not issued within those three days, the transfer may be completed at that time."
     
  12. RickN

    RickN Well-Known Member

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    The buyer bought and paid for the gun. I should think that the seller really has no obligation from that point. The buyer should settle with his FFL to either sell the gun or clear NICS.

    "Hey brother Joe, could you do me a favor?"
     
  13. larryjk

    larryjk Member

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    spitter, You make it sound like you know what you are sayiing. How many background checks have you run? The person (FFL) doing the end transfer is the one responsible to run the background check off the 4473 and make sure the person they are transferring the firearm to is able to receive it. There are short term remedies; such as returning the firearm to the FFL who sent it to you. He can then return it to the seller. Each step in the process must be reversed. I have only had a couple refusals from the NICS center since I have learned to ask to talk to the supervisor on a "further review" report. They don't roll over, but many times it is a small problem that can be corrected if the person is available. Just adding a middle name instead of an initial, or entering the SSN can make a difference.
     
  14. oleolliedawg

    oleolliedawg Banned User Banned TS Supporters

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    larryjk, thanks. It's great to hear from someone who knows what he's talking about!!
     
  15. Dr.Longshot

    Dr.Longshot Banned Banned

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    I have a relative that when he buys a gun his sale is put on hold until more checking is done, as someone else has the same name and is a felon. After 3 days all is well and good for him.

    Was the sale put on hold by NICS? For further information, and possibly no SS# was entered wrong by the NICS person doing the checking, this happens.


    Gary Bryant
    Dr.longshot
     
  16. oleolliedawg

    oleolliedawg Banned User Banned TS Supporters

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    I always advise turndowns to fill out the challenge form, send it in to the State Police and wait for a reply which is supposed to occur within 5 days. At that point the buyer is issued an OK to purchase letter and the transaction completed. It is illegal to run background checks randomly to check on a buyers ability to purchase. The individual must complete a 4473 prior to initiating a background check-further proof that the prohibited individual actually attempted to purchase. Furthermore, a prohibited individual, who likely knew his purchase was illegal attempted to buy a firearm and filled out the proper paperwork has prompted a visit from the police.

    Some of the simpler things that can trigger a turndown would be a DWI that normally places the individual on probation until discharged. Sometimes these convictions are removed from the purchasers record and sometimes not. Being arrested and charged with aggravated assault would trigger a turndown. Having charges dropped or significantly reduced might still interfere with the individuals right to purchase.

    It's sometimes advantageous to wait for the purchaser to find a resolution before doing anything rash!!
     
  17. sliverbulletexpress

    sliverbulletexpress TS Member

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    I don't see where the seller has a problem at all, seller has the money, FFL has the firearm. At this point it's up to the buyer to make whatever deal he can with his FFL, if he can't Sin Loy. A buyer who doesn't know he can't legally buy is rare, if it's a mistake he can get it corrected, if he thought he could scam the system he lost.

    Think about all this and the other crap your local FFL has to deal with everyday plus the ATF he has to answer to when you are bitching about the meager amount he's making off a transfer for you.
     
  18. Rick Barker

    Rick Barker Well-Known Member

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    The law is quite clear. If the seller does not hear back in 3 days as to the approval or denial of the sale, the gun can be sold and transferred.

    The only problems that would arise for the seller, is if he made the transfer without waiting the full 3 days, or if he went ahead with the sale, with knowledge the buyer was not eligible to buy.

    The buyer would be in violation, if he bought the gun under false pretenses as a straw man or used false information to buy the gun, such as a fake ID.

    With most sales going through in a matter of hours, not days, the seller should not be held responsible if a false sale is made by the buyer, or if the background check came back in error, saying the sale was ok.

    Then it would be up to BATF to pursue the buyer.

    I wonder, those who get the background checks, do you retain a printout copy of the clearance for your files when using the computer? If you use the phone to do so, then what?

    If I still had my FFL, I would be keeping some sort of record approving the sale!


    Another question: Are you required to use the computer or telephone to perform the background check? What if you mailed the background request and waited 3 days.
     
  19. skeet_man

    skeet_man Well-Known Member

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    Rick- You get a confirmation number when you call. I would imagine you get one as well when you do the NICS online. I highly doubt it would be acceptable to mail in a 4473 for a NICS check.
     
  20. spitter

    spitter Well-Known Member TS Supporters

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    Larryjk etal.:

    I'm not in the firearms business, have never done a NICS check or filled out a 4473 as an FFL; but that doesn't mean that essentials of contract law do not apply to firearms or firearm transactions.

    Couldn't it be argued that a "transferring" FFL is actually the "agent" of the seller. If the transaction cannot legally be consumated with the intended purchaser, how does the ownership of the firearm transfer from the original seller... it doesn't?!

    Further, how does a prohibited individual negotiate for the sale of a firearm he can't own. Yet a comment above suggests that the buyer negotiate with the transfer FFL to sell the firearm... wait, when did the FFL take ownership of the firearm - if they are "contracted" to effect only a transfer...

    Lastly, while some of the arguments may be plausible... are we saying that while the FFL has the ultimate responsibility through their acts, the seller who dictated terms of the negotiation, took the money from the questionable purchaser/criminal/whatever, has no responsibility by accepting the funds - I bet the BATF/local officials might have another opinion on that...

    If all requirements for a contact are not met there is no contract.

    My $0.04 for what they're worth!

    Jay
     
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