FFL vs Customer dynamics

[Biggfoot44]

There is another thread about an IP and a particular customer having a spirited discussion. There are lots of underlieing issues that I wanted to kick around in a more abstract way without any implied refrence to that IP or that customer.

This is a rapidly evolving topic which has already gone thru several stages , and will probably continue to do so thru Sept 30 .

Frustrated buyers are NOT nesecarily bringing it on themselves by neglence. Flashback in your minds to just 3-4 months ago. Early Release wasn't on anybodies awareness buyers or sellers. The shelves were stripped bare. The big challenge was to actually find somthing to be able to buy. If you found somthing , and the price wasn't unconsciencable , you didn't haggle , you both knew that if you didn't take it , somebody 5min later would , so you plunked down your money/ plastic , and life was good . Estimated wait time were judged on the basis of how long it took for the guns being released THEN to have taken, and that was similar for every FFL in the state.

But then those guys and gals are STILL waiting for those initial post GA session purchases. I know I am. Meanwhile at first a trickle , and then a flood of FFLs began doing some variation of early release ( aka on time ). The early adopters were going out on a limb into uncharted waters. Gradually more dealers were doing so succuessfully. Suit was brought. Sworn statements were made by MSP sufficent for the primary gun rights group , and the primary dealers Assn to both accept , and declare victory.

It is now established that it is perfectly legal to release after 3/7 days.

In the real America , what is the long time established standards of Dealer Due Diligence ? 1. He wasn't falling down drunk.2. He showed a Picture ID . 3. He filled out the 4473 under penality of Federal Law for false answers. Historically the buyer and the seller were on equal footing , and Gov't requirements were consistant and equal .

Flash forewards to Maryland changing environment
From the Md based Dealer's thought process - " I'm carefully looking at various factors based upon my past experience in the firearms biz , and my interpetation of the climate on the particular day that I enerumerate my policies.

What the customer hears - " you're just making this crap up. I know that there isn't a legal requirement for this. You( the FFL ) personally insulting me ( the buyer ) , in effect calling me an unworthy dirtbag , and impuning my honesty and honor .

People in that boat are gradually shrinking with glacial ND trickling out. Any new transactions should be initiated with release issues settled in advance.

 

[jrumann59]

Yes FFLs are carrying a lot of inventory they are on the hook fo until the NDs start flowing. The more inventory (dollars) the more their insurance goes up to cover un forseens ike a fire, robbery or other loss scenarios. The FFLs want this stuff off their books so that they do not need to cover it under their insurance along with new stock, it gets expensive. Since the feds shut down access to NICS for pretty much anything but cash and carry because the FFLs were using the system not for what it was intended but as an insurance policy that anyone coming in would at least have a cursory check on them, they were doing what is called risk mitigation once this road was closed and the lawsuit was "won", all the customer heard is, "MSP approves 8th day release." The FFLs really had no issue with 8th day release they had issue with the fact that if they release they were on the hook civilly if a gun they released, which technically is still theirs get used in a crime and the extremely liberal civil court system ran them through the system they would be finished. All the FFLs have had, banks, lawyers, insurance companies advise them of their risk and some are just plain scared because some see the risk is much higher than the gain. Many FFLs are willing to lose some business in the short run so they at least can sleep at night.

 

[Americus]

still waiting 4/19

 

[fabsroman]

Yes FFLs are carrying a lot of inventory they are on the hook fo until the NDs start flowing. The more inventory (dollars) the more their insurance goes up to cover un forseens ike a fire, robbery or other loss scenarios. The FFLs want this stuff off their books so that they do not need to cover it under their insurance along with new stock, it gets expensive. Since the feds shut down access to NICS for pretty much anything but cash and carry because the FFLs were using the system not for what it was intended but as an insurance policy that anyone coming in would at least have a cursory check on them, they were doing what is called risk mitigation once this road was closed and the lawsuit was "won", all the customer heard is, "MSP approves 8th day release." The FFLs really had no issue with 8th day release they had issue with the fact that if they release they were on the hook civilly if a gun they released, which technically is still theirs get used in a crime and the extremely liberal civil court system ran them through the system they would be finished. All the FFLs have had, banks, lawyers, insurance companies advise them of their risk and some are just plain scared because some see the risk is much higher than the gain. Many FFLs are willing to lose some business in the short run so they at least can sleep at night.

Once somebody buys the gun and the FFL legally releases it to them, it technically is not the FFL's anymore. If the person were to come back disapproved, MSP would not take the gun from the buyer and give it back to the FFL.

All of this is uncharted water. Holding an FFL liable for doing exactly what the law requires of him/her/it would have to be somewhat tough. Now, that does not mean the FFL cannot be sued, it just means that it would be somewhat tough to hold an FFL liable for the acts of another.

What amazes me is that none of the FFL's have gotten together and paid a law firm to do all the legal research regarding the risks. The elements of a tort are:

1) Duty
2) Breach of duty
3) Damage/injury
4) Breach of duty is the proximate cause of the damages

I just find it hard to believe that FFL's have a duty to the public beyond doing what the law requires of them (e.g., contact MSP and releasing on the 8th day). If anything, it would appear that the MSP is breaching its duty to both the FFL, the buyer, and the public. Question is whether the MSP can be sued if something happens.

If the FFL's have an opinion letter from their attorney, why don't they show it to their customers if it does not contain any privileged information. Granted, the entire letter would be privileged under attorney/client communication, but they should really ask their attorneys if it would be alright to disclose the contents to their customers.

This is definitely a tough business decision for the FFL's. Would be nice if we received something from the MSP stating that a HQL is not needed for any paperwork received by MSP before October 1, 2013. I think that is the million dollar question that has people wanting their handguns before October 1, 2013.

 

[RIGGS]

still waiting 4/19

I'm 4/1 and still prob looking at another month.

 

[Mooseman]

I would prefer to do business with an FFL that will do eight day releases. That being said, I understand any FFL that does not want to do an eight day release. For the sake of peace and sanity for both the customer and the FFL, the terms of release should be discussed before a deal is made.

 

[jrumann59]

Once somebody buys the gun and the FFL legally releases it to them, it technically is not the FFL's anymore. If the person were to come back disapproved, MSP would not take the gun from the buyer and give it back to the FFL.

All of this is uncharted water. Holding an FFL liable for doing exactly what the law requires of him/her/it would have to be somewhat tough. Now, that does not mean the FFL cannot be sued, it just means that it would be somewhat tough to hold an FFL liable for the acts of another.

What amazes me is that none of the FFL's have gotten together and paid a law firm to do all the legal research regarding the risks. The elements of a tort are:

1) Duty
2) Breach of duty
3) Damage/injury
4) Breach of duty is the proximate cause of the damages

I just find it hard to believe that FFL's have a duty to the public beyond doing what the law requires of them (e.g., contact MSP and releasing on the 8th day). If anything, it would appear that the MSP is breaching its duty to both the FFL, the buyer, and the public. Question is whether the MSP can be sued if something happens.

If the FFL's have an opinion letter from their attorney, why don't they show it to their customers if it does not contain any privileged information. Granted, the entire letter would be privileged under attorney/client communication, but they should really ask their attorneys if it would be alright to disclose the contents to their customers.

This is definitely a tough business decision for the FFL's. Would be nice if we received something from the MSP stating that a HQL is not needed for any paperwork received by MSP before October 1, 2013. I think that is the million dollar question that has people wanting their handguns before October 1, 2013.

I think the reason why the FFLs do not pool resources on the civil liability is because not all FFLs are not equal. In other words one that has been around 20 years has a track record for its attorney's, insurance companies and lien holders that risk assessment is easy. To some newer and smaller FFLs they have not done the volume, the time in market and the risk assessment for them by their attorney's, insurance comapnies, and lien holders will be a little more cautious.

I agree that FFLs and their attorneys and insurance providers should draft a statement explaining why they are not releasing on the 8th day even it says something to effect, "Due to legal advice and risk of civil liability we will not release without a complete background check."

To my understanding the gun cannot come out of their book until they have a completed background check with a NICS number. I may have read that wrong but I thought that was the case.

 

[hvymax]

I would prefer to do business with an FFL that will do eight day releases. That being said, I understand any FFL that does not want to do an eight day release. For the sake of peace and sanity for both the customer and the FFL, the terms of release should be discussed before a deal is made.

Exactly. If you won't do it send them to someone who will.

 

[Robert1955]

4/19 here also. I bought my pistol for the exact reason posted above. The dealer had it and if I did not jump it would have been gone 60 mins later. I plan to pick up a 1911 and a 22 cal before Oct and those will be bought from a 8 day shop unless the State gets it's act together, , not guna happen I am sure since these is no incentive for them.

 

[Ragnar]

What amazes me is that none of the FFL's have gotten together and paid a law firm to do all the legal research regarding the risks.

My FFL, who is doing 8th day release for pretty much all their customers, did get a legal opinion before they established their current policy, or so they tell me. They're comfortable that they don't bear unreasonable liability if a sale comes back as disapproved.

 

[mdram]

i think the fear of a liability suit by an ffl is well founded.

in todays society everyone is sue happy. lawyers are more then willing to try and make a buck by any lawsuit imaginable.

add the fact that mom is just itching for someone to get a firearm and have an nd come back.

 

[Ragnar]

For the sake of peace and sanity for both the customer and the FFL, the terms of release should be discussed before a deal is made.

That's fine for sales and transfers taking place today. The problem is for customers who bought guns in March, April and May after the wait times became ridiculous but before some FFLs began releasing on the 8th day without a ND from the MSP. Those customers who bought from FFLs who are not releasing (or who are releasing on a limited basis but some customers don't qualify) have been waiting many weeks and have no idea when they might get their guns.

The right thing for FFLs to do in these situations is to offer the customers full refunds on their purchases if they don't want to wait any longer. For March, April and May out-of-state transfers that are still in limbo, those FFLs who won't release should offer to refund the transfer fee and move the gun to another FFL of the customer's choosing with shipping at the customer's expense.

 

[fabsroman]

That's fine for sales and transfers taking place today. The problem is for customers who bought guns in March, April and May after the wait times became ridiculous but before some FFLs began releasing on the 8th day without a ND from the MSP. Those customers who bought from FFLs who are not releasing (or who are releasing on a limited basis but some customers don't qualify) have been waiting many weeks and have no idea when they might get their guns.

The right thing for FFLs to do in these situations is to offer the customers full refunds on their purchases if they don't want to wait any longer. For March, April and May out-of-state transfers that are still in limbo, those FFLs who won't release should offer to refund the transfer fee and move the gun to another FFL of the customer's choosing with shipping at the customer's expense.

EXACTLY what I have been trying to get at. If a gun was purchased in March, April, etc. before the wait times became completely ridiculous and an FFL did not disclose that it would NOT release prior to obtaining an ND, then the FFL should be willing to cancel the sale and issue a full refund to the customer.

Now, if an FFL was telling customers "No release prior to an ND", then that is a different story.

 

[kohburn]

there is no need for a refund - the FFL has already done what they got paid for.

no need for them to offer anything. if someone wants to use a different ffl then they can make that request and it would happen.

asking a dealer to give a refund for paperwork they they already processed just because the MSP is and issue and the customer doesn't want to wait is not reasonable. if they are in that much of a hurry then they should be happy to suck up the transfer cost and refile elsewhere.


what I'm seeing too much of is thisi attitude of entitlement - people think somehow that they are entitled to something. entitled to welfare, entitled to healthcare, entitled to a full refund on an agreement between them and a business when the business has done no wrong and alreayd did what they were paid to do.

 

[fabsroman]

i think the fear of a liability suit by an ffl is well founded.

in todays society everyone is sue happy. lawyers are more then willing to try and make a buck by any lawsuit imaginable.

add the fact that mom is just itching for someone to get a firearm and have an nd come back.

No doubt about that either. However, they cannot have their cake and eat it too. They cannot hold the firearm for more than 8 days when they did not disclose at the time of sale that they would be waiting for a ND to be returned by MSP.

There is no doubt that somebody is going to get a firearm and a "Disapproved" is going to come back. Then, MSP has to go and track down the firearm. What we really should be hoping is that the prohibited person that obtains the firearm does not do something terrible with it. Thing is, who does the ultimate fault rest with. O'Malley who is not putting adequate resources to public safety, or the FFL that is trying to stay in business and following the letter of the law?

Isn't MSP supposed to get this done within 7 days? Isn't that a shall instead of may?

Again, no doubt that the dealers are scared to death of being sued. Question is, are they going to get sued for breach of contract by their customer or negligence by a victim. If they are not going to release after 8 days and did not disclose that to prior customers that are now waiting, I believe a full refund is in order. That is where I have been going with this the entire time.

Let's stop protecting every FFL, and start protecting the small guys.

 

[fabsroman]

there is no need for a refund - the FFL has already done what they got paid for.

no need for them to offer anything. if someone wants to use a different ffl then they can make that request and it would happen.

asking a dealer to give a refund for paperwork they they already processed just because the MSP is and issue and the customer doesn't want to wait is not reasonable. if they are in that much of a hurry then they should be happy to suck up the transfer cost and refile elsewhere.


what I'm seeing too much of is thisi attitude of entitlement - people think somehow that they are entitled to something. entitled to welfare, entitled to healthcare, entitled to a full refund on an agreement between them and a business when the business has done no wrong and alreayd did what they were paid to do.

Yeah, I understand there is an issue with entitlement nowadays. Kind of crazy to think that a dealer is entitled to push all the burden on the customer. Kind of crazy that the dealer is entitled to hold a firearm for as long as the dealer wants to and still hold the customer's money, etc.

Yep, lots of entitlement.

Also crazy to think that an FFL is entitled to deal with the paperwork and then hold the transfer for as long as he/she/it deems fit. I mean, people have paid for the paperwork to be processed AND the firearm to be released timely.

Again, if it was disclosed that the firearm would NOT be released until a ND came back, that is a different matter.

When somebody pays for a transfer, they are paying for the submission of the paperwork AND the timely release of the firearm, unless there was some other agreement between the FFL and the customer wherein the release was conditioned upon a ND coming back from MSP.

 

[mdram]

No doubt about that either. However, they cannot have their cake and eat it too. They cannot hold the firearm for more than 8 days when they did not disclose at the time of sale that they would be waiting for a ND to be returned by MSP.

There is no doubt that somebody is going to get a firearm and a "Disapproved" is going to come back. Then, MSP has to go and track down the firearm. What we really should be hoping is that the prohibited person that obtains the firearm does not do something terrible with it. Thing is, who does the ultimate fault rest with. O'Malley who is not putting adequate resources to public safety, or the FFL that is trying to stay in business and following the letter of the law?

Isn't MSP supposed to get this done within 7 days? Isn't that a shall instead of may?

Again, no doubt that the dealers are scared to death of being sued. Question is, are they going to get sued for breach of contract by their customer or negligence by a victim. If they are not going to release after 8 days and did not disclose that to prior customers that are now waiting, I believe a full refund is in order. That is where I have been going with this the entire time.

Let's stop protecting every FFL, and start protecting the small guys.

msp will state "told ya its not a good idea to release until you hear from us."
or they may start issuing a hold on every application

the bigger issue is msp and nics.
if md had reported everything in the 17 databases to nics, there would not be an wait time. one search and its done.
md needs to get on the ball and use the system as intended. there is no reason for the data not to be in the system.

oh and I still don't see any breach of contract by an ffl. I know I was told in april wait times was long, and increasing. and I would be contacted when the paperwork came back. I am certain others where told the same thing. maybe not all, but many.

 

[mdram]

Yeah, I understand there is an issue with entitlement nowadays. Kind of crazy to think that a dealer is entitled to push all the burden on the customer. Kind of crazy that the dealer is entitled to hold a firearm for as long as the dealer wants to and still hold the customer's money, etc.

Yep, lots of entitlement.

Also crazy to think that an FFL is entitled to deal with the paperwork and then hold the transfer for as long as he/she/it deems fit. I mean, people have paid for the paperwork to be processed AND the firearm to be released timely.

Again, if it was disclosed that the firearm would NOT be released until a ND came back, that is a different matter.

When somebody pays for a transfer, they are paying for the submission of the paperwork AND the timely release of the firearm, unless there was some other agreement between the FFL and the customer wherein the release was conditioned upon a ND coming back from MSP.

the dealer does not hold as long as they want. they hold as long as they feel obligated to. in most cases this is until an nd comes back.

the transfer payment is for the submission of paperwork, storage of firearm, liability for holding firearm, ect ect

 

[jrumann59]

No doubt about that either. However, they cannot have their cake and eat it too. They cannot hold the firearm for more than 8 days when they did not disclose at the time of sale that they would be waiting for a ND to be returned by MSP.

There is no doubt that somebody is going to get a firearm and a "Disapproved" is going to come back. Then, MSP has to go and track down the firearm. What we really should be hoping is that the prohibited person that obtains the firearm does not do something terrible with it. Thing is, who does the ultimate fault rest with. O'Malley who is not putting adequate resources to public safety, or the FFL that is trying to stay in business and following the letter of the law?

Isn't MSP supposed to get this done within 7 days? Isn't that a shall instead of may?

Again, no doubt that the dealers are scared to death of being sued. Question is, are they going to get sued for breach of contract by their customer or negligence by a victim. If they are not going to release after 8 days and did not disclose that to prior customers that are now waiting, I believe a full refund is in order. That is where I have been going with this the entire time.

Let's stop protecting every FFL, and start protecting the small guys.

This all goes to risk assessment that the FFL, their lawyers, their insurance, maybe their lien holders has already discussed. I have a feeling they have been informed yes a small claims suit could happen but they have multiple pieces of paper with the customers signature on it, it is not their fault the customer did not read a single page of any of those forms.

 

[fabsroman]

This all goes to risk assessment that the FFL, their lawyers, their insurance, maybe their lien holders has already discussed. I have a feeling they have been informed yes a small claims suit could happen but they have multiple pieces of paper with the customers signature on it, it is not their fault the customer did not read a single page of any of those forms.

One of those forms would have to say that the firearm would NOT be released prior to a ND. I doubt there are many signatures on a form like that, but I could be wrong. Again, this would come down to a case by case basis.

FFL shows a form as you describe signed by the customer, customer is SOL and has to wait for the ND to come back.