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Old January 20, 2013, 09:22 PM   #1
jambrdly
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Gunshow sale query

Hello:

If I sell a gun at a gunshow, as a private sale, and after some period of time that gun, unbeknownst to me, is sold on to a criminal who uses it to commit a crime at some time in the future, what is my liability?

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Old January 21, 2013, 08:33 AM   #2
CowTowner
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I'm not a lawyer, but were I you. I'd have a bill of sale for the transaction with the buyer's name and other personal information.
Should the gun be traced back to you, you have proof of the private transfer.
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Old January 21, 2013, 10:04 AM   #3
jnichols2
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Better yet, pay a gunshop with an FFL to do the background check.

Then you have a government Form 4473 to not only prove you sold it, but also did a background check.

The peace of mind is worth it.
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Old January 21, 2013, 10:53 AM   #4
JimDandy
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Your moral liability is determined by you, your legal liability is determined by your jurisdiction. Here none, there all, in between will be in between. The best you can do is to keep a paper trail showing sale, and that it left your possession.
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Old January 21, 2013, 11:51 AM   #5
leadchucker
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If you filled out a 4473 when you bought the gun, and the record of the sale went in some FFL's bound book, there is a paper trail to you. Getting proof in writing that you sold it legally and responsibly is your best protection.

If you can be sure that the gun can't be traced back to you, you are out of the reach of any liability, so all you have to do is follow the law where you live.

Selling it to a stranger out of your area, with no information exchanged could pretty much assure anonymity, but it is probably not legal, and I would have a problem, morally, with that.

Selling it to some guy at a gun show, who shows you a valid ID and CCW, but you write down nothing, is legal in a lot of places, and gives you reasonable assurance that you are not selling to an unqualified person. It doesn't assure absolute anonymity though.

You pick.
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Old January 21, 2013, 01:31 PM   #6
Tom Servo
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Quote:
sold on to a criminal who uses it to commit a crime at some time in the future, what is my liability?
To prosecute you, a DA would have to prove to a grand jury one of three things:
  1. That the conditions of the initial sale broke local law,
  2. That you knew the buyer to whom you sold it was legally disqualified from owning a gun, or
  3. That you knew the buyer planned on committing a crime.
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Old January 22, 2013, 09:36 AM   #7
btmj
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Tom, What you have written is (I have no doubt) correct.

But I think the OP was asking about civil liability. Or if he was not, that would be my question. I suppose the worst case would be a wrongful death suit, but I am sure there are other damages that could be claimed.
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Old January 22, 2013, 09:55 AM   #8
jaysouth
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If the three points that Tom enumerated are true, there is no civil liabilty.

Apply that doctrine to any other product. If you sold a car and two subsequent owners downstream, the owner got drunk and killed someone, are you, the original owner responsible? Could someone make you liable for the unforseen actions of a subsequent owner's actions? The answer is clearly NO!
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Old January 22, 2013, 03:36 PM   #9
kilimanjaro
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If you sold to someone who was a criminal at the time of sale, a prohibited person, you are in deep sierra. As to civil liability, answer the 'prudent man' test, then consider where that leaves you.

If in doubt, just go through an FFL at an adjoining table, they'll charge a fee, perhaps, and all is kosher.
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Old January 22, 2013, 04:08 PM   #10
carguychris
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Quote:
If you sold to someone who was a criminal at the time of sale, a prohibited person, you are in deep sierra.
How do you figure?

IMHO the answers in Tom Servo's post pretty much sum up the potential criminal consequences. If the seller has no reasonable cause to believe that the buyer is a prohibited person or intends to commit a crime, and no state or local regulations apply to the sale, what law has been broken?
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Old January 22, 2013, 10:38 PM   #11
jambrdly
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Maybe I should give a little more background on this. I was at a gun show and there was a fellow I thought was a dealer (he had a table and was selling guns). I offered him a swap - my Browning for his S&W 36 - he said OK. When I offered him my ID to do the background check he said there was no need as the S&W was part of his private collection. I must be getting old and befuddled because I walked away thinking all was OK. Only later did I stop to think about the issue of what if he sold my Browning to some dodgy person somewhere down the road. I have no idea how to get back in touch with this guy. Should I file an affadavit somewhere? What would be the best course of action?
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Old January 22, 2013, 10:46 PM   #12
Justice06RR
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It might be too late now, but you should've at least got the name or business card of the dealer you traded with.

But in case of a future crime where your firearm is involved, the court has to prove that you had actual possesion of the firearm and be in the location where the crime occured. In that case, you should be in the clear; all you have to do is make a statement that you sold the firearm to a dealer at a previous time. I would highly suggest a lawyer in that case though.
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Old January 23, 2013, 12:28 AM   #13
vranasaurus
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Tom is right on with criminal liability. Why does everyone recommend doing things based upon an ability to prove who yourself innocent. Last I checked the government was required to prove you guilty.

As for civil liabilty:

In order to recover for negligence the plaintiff must prove duty, breach, cause, and harm.

What duty do you have to prevent a gun you sell from subsequently, and unbeknownst to you, ending up in a third party's hands? Not only do you not have a duty it would be impossible for you to do. If you don't have a duty you can't be liable.

Further, the acts of the person you sold it to would likely be a superseding/intervening cause that would break the chain of causation from you.

Now if you live in a state that has universal background checks and you sell a gun without doing one you may be both criminally and civilly liable. But even in this case civil liability depends on the ability to prove causation.
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Old January 23, 2013, 12:34 AM   #14
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One more thought. If you keep a bill of sale that identifies the buyer, and that buyer turns out to be a criminal, it will prove that you sold a gun to a criminal.

They still have to prove that you knew he was a criminal, had reason to believe he was a prohibited person, or intended to use the gun in a crime, but now you've connected the dots for them in terms of proving the gun went directly from your hands to his.

If you do NOT keep a bill of sale that identifies the buyer, now there is nothing tying you directly to the criminal. Maybe you sold him the gun, maybe you sold the gun to someone else and that person sold the gun to the criminal. Maybe you sold the gun to someone else and the criminal stole it from him and for whatever reason the buyer didn't report the theft. Basically, now there is no proof that the gun went directly from your hands to the hands of a criminal.

Be careful about keeping records that are not required by law. They might help you, but they could also hurt you. As the police say, anything you say can and will be held against you. The same applies to records. If you keep records you may find that their contents can be used against you.
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Old January 23, 2013, 10:21 AM   #15
leadchucker
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If you're that worried about it, contact the gun show people. Maybe they can give you some contact information for the seller.

As far as keeping records, I prefer to keep more records than I have to. Showing them to anyone is optional.
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Old January 23, 2013, 11:52 PM   #16
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Quote:
Showing them to anyone is optional.
Sometimes it's optional, sometimes it's not.
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