Getting a stolen rifle back from ATF? - Page 2

deepcreek · April 10, 2013, 09:19 AM

Quote:

For what? Being burglarized?

Short answer is that no, there's no good claim against the gunsmith -- unless the OP can prove complicity with the thief or gross negligence.

If I took possession of something to work on I would feel responsible. The person only left it because they felt it would be safe=they trusted me and my security. If my security failed I would feel like I need to compensate them for their loss that was my responsibility.

I am not saying that the OP should sue, but I would be very annoyed if the gunsmith did not bend over backwards to get my gun back or help me replace it.

MLeake · April 10, 2013, 10:00 AM

The OP said the gunsmith won't even refund smithing fees for the rifle that was never returned to the OP. If true, that is ridiculous.

**Frank Ettin** · April 10, 2013, 10:09 AM

Quote:

Originally Posted by deepcreek

If I took possession of something to work on I would feel responsible. The person only left it because they felt it would be safe=they trusted me and my security. If my security failed I would feel like I need to compensate them for their loss that was my responsibility....

That's very nice of you, but that's not what the law is.

deepcreek · April 10, 2013, 11:01 AM

Quote:

That's very nice of you, but that's not what the law is.

To me it is part of being a decent human being. Lawyers are scum, I don't look to them for my standards.

**Frank Ettin** · April 10, 2013, 11:06 AM

Quote:

Originally Posted by deepcreek

To me it is part of being a decent human being. Lawyers are scum, I don't look to them for my standards.

First of all, I'm a lawyer. You might think of me as scum, but it would be advisable for you to keep your insults to yourself on this board.

Second, you'd be very happy to have a good lawyer on your side if you got into a legal pickle -- such as could happen if you had to use your gun in what you believed to be self defense.

Third, the issue raised by post 24 was suing the gunsmith. Whether or not that would be a viable option depends on what the law is, not on what your personal standards are.

deepcreek · April 10, 2013, 11:49 AM

Quote:

Third, the issue raised bu post 24 was suing the gunsmith. Whether or not that would be a viable option depends on what the law is, not on what your personal standards are.

Many people make decisions on morals.

**Spats McGee** · April 10, 2013, 11:52 AM

Quote:

Originally Posted by deepcreek

Quote:

Originally Posted by Frank Ettin

Third, the issue raised bu post 24 was suing the gunsmith. Whether or not that would be a viable option depends on what the law is, not on what your personal standards are.

Many people make decisions on morals.

They do, indeed, as well they should. That does not tell us if a lawsuit is viable, though.

**Frank Ettin** · April 10, 2013, 12:16 PM

Quote:

Originally Posted by deepcreek

Many people make decisions on morals.

And if someone decides to pursue a lawsuit based on personal standards alone, without regard to whether the law offers a prospect for success, he will likely waste his, and other's, time and money. He also exposes himself to a potentially expensive (to him) claim of malicious prosecution.

MLeake · April 10, 2013, 12:22 PM

Frank and Spats, what do you think about the refusal to refund gunsmithing fees?

**Spats McGee** · April 10, 2013, 12:32 PM

My gut reaction: It depends on whether the work was ever performed. I haven't scoured the thread, but I see no indication one way or the other. For that matter, the OP may not have any way of knowing, except to ask the gunsmith, which presents obvious problems.

**Frank Ettin** · April 10, 2013, 12:39 PM

I agree with Spats. Of course if the work had been performed, it would be a nice gesture for the gunsmith to offer some accommodation on the cost.

And this is another circumstance in which the "law" answer and the "personal ethic" answer would be different.

MLeake · April 10, 2013, 01:08 PM

I would think the gunsmith's security as a whole (locks, safes, alarms, or lack thereof) would be potential factors; I would also think the business would have (or might be required to have) theft insurance.

deepcreek · April 10, 2013, 01:31 PM

Quote:

They do, indeed, as well they should. That does not tell us if a lawsuit is viable, though.

No but morals might justify if he even wants to pursue one, or pursue personal compensation outside the courts.

We live in America lawsuit capital of the world you can sue someone for many, many.. things. If I slip on my friends sidewalk I could probably sue him, but I wouldn't because I have morals and I am not scum.
Same concept.

lcpiper · April 10, 2013, 01:41 PM

Can you file under the freedom of Information Act for information about the case and the disposition of your property? Might help the lawyer some.

**Spats McGee** · April 10, 2013, 03:59 PM

Quote:

Originally Posted by deepcreek

Quote:

Originally Posted by Spats McGee

They do, indeed, as well they should. That does not tell us if a lawsuit is viable, though.

No but morals might justify if he even wants to pursue one, or pursue personal compensation outside the courts.

Yes, they might. The question of morals (& ethics) should certainly play a role in deciding whether or not to pursue action against the gunsmith or shop owner.

However, while I do not presume to speak for Frank, I don't think that either one of us was weighing in on whether the OP should pursue a remedy against the gunsmith or shop owner. Frank was merely responding to whether the OP

Quote:

Originally Posted by TimSr

. . . . had a simple small claims court remedy against the gunsmith who had custody of the property at the time it was stolen.

IOW, merely responding to the question of whether there is a legally tenable cause of action against him. That's a question of "Can I?" not a question of "Should I?"

Quote:

Originally Posted by lcpiper

Can you file under the freedom of Information Act for information about the case and the disposition of your property? Might help the lawyer some.

Possibly, but I don't know enough about any federal FOIA to answer the question of whether same might be successful. I do know that in Arkansas and (I presume) many states, there is an FOIA exemption for "ongoing investigations" that might prevent such a request from being open under such circumstances.

Win · April 10, 2013, 04:35 PM

It's a bailment.

The standard of care would be ordinary care in most jurisdictions, I would think.

Since guns are an attractive target for theft, ordinary care could be a pretty high standard.

More facts are needed than just that the gunsmith was burglarized.

csmsss · April 10, 2013, 06:11 PM

It strikes me as unusual that gunsmithing fees would have been paid in advance. I personally would never advance fees for professional services - particularly if no parts of significant cost are being ordered as part of services rendered.

Evan Thomas · April 10, 2013, 06:33 PM

It's not at all unusual for a service business to require an up-front deposit for work to be performed on an item that's left in the shop, especially when the value of the work is close to, or even exceeds, the value of the item when it's brought in.

It's a form of insurance in case a customer refuses to pay after the work is performed, or, for whatever reason, never collects the item. It's also a demonstration that the customer has the ability to pay, which isn't always the case. I spent 20+ years working in such a business, and ran my own for half that time. I only remember one occasion when a prospective customer refused to pay a deposit; it was much more the norm for customers to ask me up front how much of a deposit I needed.

April 10, 2013, 12:32 PM	#35
Spats McGee Staff Join Date: July 28, 2010 Location: Arkansas Posts: 8,821	My gut reaction: It depends on whether the work was ever performed. I haven't scoured the thread, but I see no indication one way or the other. For that matter, the OP may not have any way of knowing, except to ask the gunsmith, which presents obvious problems. __________________ I'm a lawyer, but I'm not your lawyer. If you need some honest-to-goodness legal advice, go buy some.

April 10, 2013, 12:39 PM	#36
Frank Ettin Staff Join Date: November 23, 2005 Location: California - San Francisco Posts: 9,471	Getting a stolen rifle back from ATF? I agree with Spats. Of course if the work had been performed, it would be a nice gesture for the gunsmith to offer some accommodation on the cost. And this is another circumstance in which the "law" answer and the "personal ethic" answer would be different.

April 10, 2013, 01:41 PM	#39
lcpiper Senior Member Join Date: May 15, 2011 Posts: 1,405	Can you file under the freedom of Information Act for information about the case and the disposition of your property? Might help the lawyer some. __________________ Colt M1911, AR-15 \| S&W Model 19, Model 27\| SIG P238 \| Berreta 85B Cheetah \| Ruger Blackhawk .357MAG, Bearcat "Shopkeeper" .22LR\| Remington Marine Magnum SP 12GA., Model 700 SPS .223

April 10, 2013, 06:33 PM	#43
Evan Thomas Senior Member Join Date: July 7, 2008 Location: Upper midwest Posts: 5,631	It's not at all unusual for a service business to require an up-front deposit for work to be performed on an item that's left in the shop, especially when the value of the work is close to, or even exceeds, the value of the item when it's brought in. It's a form of insurance in case a customer refuses to pay after the work is performed, or, for whatever reason, never collects the item. It's also a demonstration that the customer has the ability to pay, which isn't always the case. I spent 20+ years working in such a business, and ran my own for half that time. I only remember one occasion when a prospective customer refused to pay a deposit; it was much more the norm for customers to ask me up front how much of a deposit I needed. __________________ Never let anything mechanical know you're in a hurry.

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April 10, 2013, 10:00 AM	#27
MLeake Senior Member Join Date: November 15, 2007 Location: Outside KC, MO Posts: 10,128	The OP said the gunsmith won't even refund smithing fees for the rifle that was never returned to the OP. If true, that is ridiculous.

April 10, 2013, 12:22 PM	#34
MLeake Senior Member Join Date: November 15, 2007 Location: Outside KC, MO Posts: 10,128	Frank and Spats, what do you think about the refusal to refund gunsmithing fees?

April 10, 2013, 01:08 PM	#37
MLeake Senior Member Join Date: November 15, 2007 Location: Outside KC, MO Posts: 10,128	I would think the gunsmith's security as a whole (locks, safes, alarms, or lack thereof) would be potential factors; I would also think the business would have (or might be required to have) theft insurance.

April 10, 2013, 04:35 PM	#41
Win Member Join Date: November 2, 2009 Location: Northwest Arkansas Posts: 57	It's a bailment. The standard of care would be ordinary care in most jurisdictions, I would think. Since guns are an attractive target for theft, ordinary care could be a pretty high standard. More facts are needed than just that the gunsmith was burglarized.

April 10, 2013, 06:11 PM	#42
csmsss Senior Member Join Date: October 24, 2008 Location: Orange, TX Posts: 3,078	It strikes me as unusual that gunsmithing fees would have been paid in advance. I personally would never advance fees for professional services - particularly if no parts of significant cost are being ordered as part of services rendered.