Washington FFL's can't do NICS checks on handguns?

[Dreadi]

People not picking up their purchase was never the topic, the issue at hand is dealers refusing to release the gun after the 10-day waiting period has expired.a poster way back at the beginning of the thread said that a dealer would not release a gun without an okay from the state patrol even though the law says they may release it after 10 days.

Unless specifically authorized by statute, their authority to hold your firearm ends at the completion of the background check. The check ends either when they get a response or when the required waiting period times out.

Can you post language from the statute that allows an FFL discretion to choose to not release a firearm after the background check is completed?

I believe the correct question is, "Is there a law requiring that a FFL transfer a firearm after the background check is completed?"

To do my best at answering your question I will say, there is no requirement of an FFL to transfer A firearm after a transferee has received a Proceed. FFLs are also not required to transfer a firearm after the 3 business day waiting period, or 10 business days in our state of Washington when they have not received a response from NICS.

Something of note to the underlined bold words that I quoted, if a background check is being conducted for a customer to receive a firearm, it's not the customer's firearm. It is not until the transfer is complete that the item becomes the possession of the customer.

 

[Talos32]

I believe the correct question is, "Is there a law requiring that a FFL transfer a firearm after the background check is completed?"

To do my best at answering your question I will say, there is no requirement of an FFL to transfer A firearm after a transferee has received a Proceed. FFLs are also not required to transfer a firearm after the 3 business day waiting period, or 10 business days in our state of Washington when they have not received a response from NICS.

Something of note to the underlined bold words that I quoted, if a background check is being conducted for a customer to receive a firearm, it's not the customer's firearm. It is not until the transfer is complete that the item becomes the possession of the customer.

If the dealer accepted payment for it (or you bought it elsewhere and they're doing a transfer); it's yours. A failed background check means you can't take possession, which is completely different from owning something. Look at orders of protection that bar someone from possessing firearms; they can be stored with a relative, or held by the police, but they remain that person's property.

In the case of a failed background check a dealer can work with the owner on what they want to do. That may mean a refund or shipping it back to the FFL it came from, or transferring it back to the old owner if it's a face to face transfer. It does not include the dealer simply seizing the weapon and keeping it.

The law doesn't have to say the dealer releases the gun after the waiting period; it's implied unless it states the contrary. The background check rules are a specific exception to all the normal laws we have regarding property rights; when the background check requirement ends, so does the exception. At that point the dealer has no more authority to not turn over the gun than Best Buy has to refuse to give you a TV you paid for.

I'm not sure why this is so confusing, the lawyer guy that responded to my first post understood and didn't dispute this.

 

[Dreadi]

If the dealer accepted payment for it (or you bought it elsewhere and they're doing a transfer); it's yours. A failed background check means you can't take possession, which is completely different from owning something. Look at orders of protection that bar someone from possessing firearms; they can be stored with a relative, or held by the police, but they remain that person's property.

In the case of a failed background check a dealer can work with the owner on what they want to do. That may mean a refund or shipping it back to the FFL it came from, or transferring it back to the old owner if it's a face to face transfer. It does not include the dealer simply seizing the weapon and keeping it.

The law doesn't have to say the dealer releases the gun after the waiting period; it's implied unless it states the contrary. The background check rules are a specific exception to all the normal laws we have regarding property rights; when the background check requirement ends, so does the exception. At that point the dealer has no more authority to not turn over the gun than Best Buy has to refuse to give you a TV you paid for.

I'm not sure why this is so confusing, the lawyer guy that responded to my first post understood and didn't dispute this.

I see that you are attempting to match completely unrelated scenarios in regards to ownership and transfers. I'll just start from the top.

If a gun is on the shelf and a person walks in and hands over cash for that gun, it does not belong to the customer until the transfer is complete. If someone pays Joe Bob's Outfitters for a gun and it ships to a FFL for a customer to pick up, it is still not the customer's gun. FFLs are not required to transfer a firearm even though the NICS check comes back with a Proceed. The specific language that the ATF uses in from 4473 says "If NICS provides a "proceed" response, the transaction may proceed." It does not say that continuance of the transaction is required.

If the police has a person's property (a gun) in this state for "safe keeping" as they call it, before they transfer it to the owner, they will run that person's background. They will still at their discretion return that firearm even with a Proceed and everything else appearing to be clear. In the event that person is delayed or denied, it's still up to that agency to determine whether or not they will hold it for an undetermined period of time before it's disposed of. Did it still belong to that person the whole time? I believe so.

I agree that if a gun has been paid for and a Denied response is received that the customer and FFL can and should work something out. It can include the FFL keeping the gun. A FFL is not required to give a gun back to the previous owner after it has been logged in their book in the instance of a private party transfer. Also, a FFL does not have to log a firearm into their book to conduct a NICS check. The FFL can log it in after the transaction is complete. This is especially great for the owner of the firearm in a private party transaction due to the laws requiring a background check be done on the previous owner once the gun has been logged, if the buyer is denied, delayed, or the buyer decides they don't want to follow through with the transaction for other reasons.
Here is reference for that: https://www.atf.gov/file/1661/download

I do not see anywhere in this thread that a lawyer has agreed with anything you've said in this thread.

Here is a an example from the ATF in regards to FFLs deciding whether or not to transfer a firearm after a waiting period:

Note that the FFl is not required to proceed with the transfer after the three business days have passed with no response from nicS; the decision to transfer is at the discretion of the FFl.

https://www.atf.gov/file/110076/download

TV and guns do not have the same mandated state and federal requirement to obtain or possess. Therefore, TVs have no comparison in this discussion.

 

[baker3gun]

Can you post language from the statute that allows an FFL discretion to choose to not release a firearm after the background check is completed?

I don't think that language exists. The outcomes we have now are things that evolved after the fact.

The law included a time limit element as a way to promote a fast BGC system because pro-gun organizations lobbied for that element and because it was politically expedient. At the time the law was passed, it was likely that it would not have passed without the expediency element, so the expediency element was included.

Your comment above uses the word "authority". Change that word to "requirement" for a better understanding.
The dealer is required to hold the firearm until the BGC passes or the time limit expires, whichever is first.
The law does not stipulate what happens after that point, it only says that the hold requirement lapses.

This leaves the dealer faced with a decision.

For consideration, let's assume that dealers can be divided into two groups: fearless constitutionalist business operators and wary business operators,
where the former is always willing to release a gun after the time limit expires,
and the latter is not.

I think this may reasonably describes the situation we have now.

Since the law does not compel the wary to release the gun after the time limit, the wary often choose not to release it out of reasonable fear for civil or perhaps even legal liability.

[eta - "not" compel] Sorry. typing fast...

Both types of dealer can be found in our marketplace.

Caveat emptor: the best current recourse for the buyer is to establish terms up front, before paying for the firearm.
Specifically, define what happens in the event of a BGC not being approved but the time limit expiring.
Determine whether the dealer will release the firearm.
If not, will you receive full refund? Will the seller attempt to apply a restock fee?
These simple steps will allow buyers to decide before paying whether they want to buy a gun from that dealer.
Natural market forces will drive future trends.
Stalwart dealers will gain more business. Fearful dealers will either learn to become more stalwart or will lose sales.

The original law would have been better if it included a stipulation that dealers shall release purchased firearms in the event that the time limit expires without a completed BGC. But it doesn't.

In the grander scheme, the two solutions to this problem: abide by the present system and establish terms up front with our FFL dealers, or unite into a political entity large enough to compel legislators to return the state of the Law to a condition that is reasonable with respect to the protected right of citizens to keep and bear arms, and compliant with the Constitution.

 

[TCOV]

Pardon my ignorance but how will this effect C&R purchases in WA with a FFL03 after 7/1/2019? - private party transfers? LGS purchases?

Washington still recognizes a C&R license, no change there.

 

[baker3gun]

BTW Talos, you are making good points.

You come across as indignant that we have to put up with a system like this, as well you should be. We all are.

Anecdotally:

In storefronts, I've never experienced a delay of more than 2 or 3 minutes before approval came back, and I've never paid for the gun until after the approval.

I think many storefronts don't take payment for the gun until after approval, which leaves them in a position of being able to decide whether to take payment after expiration of the time limit (no BGC approval).

By mail, I have always paid the seller before shipment, and my approvals have always been a few minutes at my dealer's house, after which I left with the gun.

I think your most valid point is asking what happens after a mail-order transaction that ends with a no-approval time-limit-expired scenario. If your FFL won't transfer the gun to you, then someone will have to pay for return shipping (and the FFL transfer back to the individual seller, as required) before you can ask the seller for a refund.

That would be a good thing to iron out with your ffl before paying the seller.

My .02.

 

[ARFrog]

Washington still recognizes a C&R license, no change there.

Still cash and carry or will it now be with waiting periods?

 

[TCOV]

Still cash and carry or will it now be with waiting periods?

Washington still recognizes the C&R license, no change there.

 

[Ops]

they have no right to release it after 10 business days without a proceed. not sure your grasping that. if I don't get a response after 10 business days than I can contact the local leo not before. the dealer has no obligation to release after 10 days without a ntn. and I would never release a firearm unless I got a proceed. my lively hood is not going to be affected or jeopardized by your inability to get a proceed.

If your status goes open you can pretty much guarantee a large shop wont give you your firearm. and they'd wait 31 days to start a refund. which is the required wait time for a nics check to expire.

Its like listening to a bunch of babies if you don't get your way.

all these backyard quarterbacks with their undies in a bunch who feel entitled. you should understand how a ffl works, not how you think it should.

 

[Talos32]

Ops: WALawyer above posted that after 10 days you can proceed, like you can after 3 for a federal check. You just posted "they have no right to release it after 10 business days without a proceed." so, which is it? Does a WA FFL have to wait until they receive affirmative permission to proceed from the state, or does it work like the federal system?

Thanks for posting the ATF brochure. It seems that federal law at least gives dealers the discretion to not release firearms if they don't want to. That would mean it if you exercise that discretion, you would have to expeditiously refund the person's money, or in the case of a third party transfer, take the appropriate steps to return the gun to the transferring party who can own it.

You seem to think that there is a circumstance where you can retain both the money and the firearm, I assure you that that is a losing argument if you get sued. I suggest you look up the legal concept of "unjust enrichment." You can't use federal firearms laws to bootstrap into getting to keep a gun someone else has paid for.

You might also want to look up the meaning of the word "entitled." You use it as a perjorative but if someone pays for something, they are absolutely entitled to either their property or a refund.

 

[Talos32]

So, a little research shows that the exact issue under discussion happened in California in 2016. The FFL was that a point in the process where he could choose to release the firearm, but was not compelled to on an "undetermined" background check.

After consulting several attorneys, who all told the buyer that the FFL either had to return his money or give him the gun (because of unjust enrichment), the buyer prepared a superior court lawsuit. He gave a copy to the FFL prior to filing and when the FFL consulted his own lawyer, he was advised to release the the firearm (presumably a full refund would have also been acceptable). Buyer ended up getting his gun. Link to the story is below.

What liability does an FFL have when ... - Calguns.net

 

[Sporting Systems]

Yes, we can deny a transfer at any point in the process. We've only had to do it to it with belligerent customers.

 

[Sporting Systems]

Still cash and carry or will it now be with waiting periods?

Waiting periods for the subjects.

 

[Ops]

there is no federal wait in Washington. if you didn't get a proceed before 7-1-2019 under 594 it could be up to 10 business day wait on any firearm. and after the 10th business date it is up to the dealer to release it. not required to especially if no proceed. its not the dealers fault you couldn't pass a background check.

and ask the dealer if they will transfer the firearm after 10 business days with no response. but again most wont jeopardize their lively hood because your impatient. and the atf doesn't care. a court wont force them to give you a firearm they legally cant.

after reading what that person said id refuse him a firearm anyways. story is fishier than the pike place market

 

[GWS]

Friends, I think we need to face the fact that the state has not funded any background check system.
This means we, the gun-buyers will.
It will most likely come in the form of a DROS, or Dealer's Record Of Sale fee. (Please note the word "Record"). They claimed the fee was to cover the cost of the background check etc.
In the PRK it was $25 per transaction so if you bought a pistol and rifle at the same store and time, you paid the one fee. I've heard that the state in its wisdom has put forth a plan to raise that fee to $63. The additional money will fund DOJ firearms activities as needed
I lifted this from the Calguns forum with a nod to poster BeAuMan.

Hence, to transfer a single new firearm, our current fee is $19 DROS + $1 Firearms Safety Act + $5 Safety and Enforcement, which totals $25.

If these two bills pass, to transfer a single new firearm, the fee would then be $32.19 DROS + $1 Firearms Safety Act + $5 Safety and Enforcement + $25 CalVIP Excise Tax, which totals $63.19.

That's... more than double the current cost, and creates an unacceptable barrier to purchasing firearms."

You just know that Olympia is watching this...

 

[Sporting Systems]

If you really want to muddy the waters...different agencies have different policies on approving transactions. This will get ugly in some areas.

Some agencies will not give an approval OR a denial, just an infinite "delay". Usually, they wont tell you either, you;ll call them and ask for the info and sometimes they'll tell you whats happening, others just ignore you. Exceptionally frustrating, because we (the dealer ) are the intermediary between the PD and the individual, the PD slows things down and the customer gets upset with us. Some agencies we MAIL applications to, some we email to, some we fax to...a couple, its a smoke signals. How does snail mail sound with Thurston county...we received an approval for a client from the City of Renton, 45 days after we sent it. the 4473 was already invalid, as it had timed out, but we released the firearm at about 3 weeks.

Dealers have a fair amount of discretion, but doing the right thing for the customer should be the most important element here. The legal side is prescribed, the right thing is not.

How we do it. We take full payment to process any firearm background check. If you're denied, we charge a transfer fee of $35 for our time processing all the paperwork, and provide a refund on the firearm. This discourages the "lets give it a try and see if I pass" people. If you have your denial overturned, we refund that fee on your next purchase. If it's a transfer that's denied, we charge the transfer fee, and then work with the buyer to return the firearm to the seller (freight and expenses on them), sometimes sellers wont take it back. We give the seller 30 days to find a private party buyer, or we can work out a consignment or purchase and we treat them fairly.

All denials are awkward situations. Being fair and forthright about our costs, and your expectations are mutually important. Treat customers poorly, they don't return...and they tell people too.

Agencies are scrambling to figure out what their work load is going to look like after July 1, the DOL has no guidance at all, neither does the AG's office. This leaves us, in between you and the changes in the law, so expect some frustrating times in the next 6-12 months. As I warned my local agencies...since November's passage of 1639, we've sold 4500 lowers, everyone of the BGC's will be on their shoulders now, get ready for it.

DOL has no software or forms for processing "assault rifles". No forms for processing lowers/firearms/frames. There is no consistency anywhere in the state. I'm going to do a video about this later this weekend.

 

[Alexx1401]

If the law says they are cleared to release the firearm after 10 days, then it is the dealer choosing to not give you the gun after that point. I'm pretty sure the same party that refuses to give you your property can't charge you a fee to refund your money-unless you somehow I agreed to it up front, but why would anyone do that when there are plenty of other FFL is around?

I'd be curious if the ATF would initiate any sort of enforcement action if you complained about a dealer refusing to turn over firearms after the required background checks have been completed.

If a dealer refused to give me a gun I had paid for without a legal requirement to do so, I would certainly be complaining to every agency that has any form of regulatory authority over them and would be trying to have their business license and FFL stripped away.

The FFL's are in a VERY bad spot here. There are already many who will NOT release a gun even though they "could". That part is nothing new. During the last great panic one shop I have been going to a LONG time turned a co worker away. He wanted to buy a hand gun. Did not have a CPL yet, had applied. The store told him come back after you have it. They were finding 30 + day waits for the OK to sell to someone. They were tired of angry customers who were waiting. Yes after 10 days they "could" hand over the gun. They did not want to risk it. Now if you want to get an FFL and advertise you will not do this? By all means, get one and you will have a lot of customers. Would be a good way to test this. Now that this will become the normal thing for all you are going to be VERY hard pressed to find FFL's who will risk it. This is why it will be put in writing up front. You will have to agree to it or shop elsewhere. I very much doubt there will be an elsewhere. As far as you <I would certainly be complaining to every agency that has any form of regulatory authority over them and would be trying to have their business license and FFL stripped away> this is a laugh. The agencies you want to complain to are the ones who made this mess. They did it on purpose. Not to mention you are mad at the wrong person here. FFL Dealers did not put these laws in. Gun owners who could not be bothered to do anything allowed this garbage. Many of them will do exactly this though, get mad at everyone else because they did nothing. As I said maybe this will finally wake a few more up.

 

[Alexx1401]

People not picking up their purchase was never the topic, the issue at hand is dealers refusing to release the gun after the 10-day waiting period has expired.a poster way back at the beginning of the thread said that a dealer would not release a gun without an okay from the state patrol even though the law says they may release it after 10 days.

Unless specifically authorized by statute, their authority to hold your firearm ends at the completion of the background check. The check ends either when they get a response or when the required waiting period times out.

Can you post language from the statute that allows an FFL discretion to choose to not release a firearm after the background check is completed?

This has been beat to death here. Info on WA state who does the 5 and then 10 day wait for hand guns has been posted here multiple times. There is no "law" saying the dealer has to give you the gun. There is a law that they "could". Few if any will. The reason is they are scared of giving you the gun, then 12 days later getting a "you were denied." Then who is responsible to get that gun back from you? If you do turn out to be a criminal and use the gun what? You know full well what will happen. Lawyers will show up at the FFL to sue. Then guess who gets to pay to defend themselves? The FFL. You can scream this is not fair all you want, it is the real world we live in. The one who sue's does not have to win to bankrupt the FFL. So don't like it? Better ask and get it in writing up front, what is going to happen if I am delayed over the 10 days? If you find FFL's who will say they will put it in writing they will hand over the gun anyway by all means post it here. They are going to be hard to find so share if any will.

 

[Alexx1401]

after the background check is done you should get off your bubblegum and pick it up.

after 30 days and you don't pick it up , don't blame the dealer if you were to lazy. you wasted their time.

under law they aren't required to release the firearm until they get a response.

I very much doubt anyone is going to pay and then not bother to pick up what they paid for. Where the problem is going to be is people who paid, then never get a "Proceed" to get the gun. MANY have no idea they allowed this to happen. Many are going to find out when they go to buy. Then they are going to get mad and want to blame someone. The FFL will of course be the first one to get some angry customer at their door. Gun owners did this to themselves even after decades of being warned. So now they get to live with what they created.

 

[Sporting Systems]

FYI - We release firearms after 10 days and no reply from the agency, based on the history with the customer and their demeanor in store. So, be nice to your LGS salespeople, if they're nice to you. In 4 years we've had (2) firearms delivered that later received a DENIAL AFTER approval, we recovered the firearms in those cases and ate the expense, otherwise ATF goes and gets them.