I just got a depressing call from Houlton ME PD Updated 7/20

[hatt]

Classic case is the hot check presumption that if you have not paid the check within 10 days from getting the demand letter thee is a presumption of intent to defraud. I had a case where the bank wrongly charges some fees causing about 4 of my client's checks to bounce. She was on Social security and cound not make them good as the bank would not reverse the charges. Classic case of negating the presumption of intent to defraud. Put her on the stand, she told the story and showed the bank receipts-NOT GUILTY. Now she still owed the money civilly, but she certainly os no criminal and does not deserve a criminal conviction. Always be careful with the presumptions as they can impermissibly shift the burden to te defendant. There are no irrebuttable presumptions in criminal law.

Wait a minute. The State put an old lady on trial when she had receipts showing the bank screwed up? That's some corrupt nonsense right there.

 

[Smithhound]

Something doesn't sound right with all of this. You bought a gun from a dealer, who at the time of purchase should have run the required checks on the weapon. At that time i'm going to have to assume that the gun came up 'clean'. Now it comes to light that 6 months before your purchase that gun has suddenly turned up stolen? Was it not reported stolen for 18 months?
How did it suddenly appear on the stolen firearms list after all that time?
I'd be asking some serious questions and definately getting a copy of all the official paperwork on this as well as (previously mentioned) a reciept for transfer to the PD rep.
This just smells a little fishy.
RD

 

[Jeb21]

I agree that something seems wrong, and I don't agree that you should bear the full price of this return if it truly was stolen. The dealer warranted to you that he had full legal title when he sold it to you. He was wrong apparently, so he breached the contract, so you are entitled to a full refund of your purchase price. Basic contract 101.

 

[vipermd]

WOW I am truly amazed at the number of people willing to give incorrect info and defend it. Remember These quotes" fry the FFL", "how could he not know", "run the numbers", "run through NICS", and special notice to luis, + torakan, did you both vote for boxer/feinstein??? 1: ATF does not run SN#'s for dealers. 2 : Most states do not require that you run the numbers on a gun and do not offer a means to do so. 3: Most local/state pd will not run a number for you. 4: A NCIS only deals with the buyer's ability to purchase a firearm, no make, model, SN#, caliber is transmitted. 5: Most dealers will try to make things right, BUT, remember that there are 3 VICTIMS here. Now for the soapbox: many firearms have been sold on this forum without SN#'s being checked, we rely on trust. Has anyone here ever purchased a "stolen" firearm on this forum? Are you a felon?? Interstate transfer requires a FFL to be involved, his/her 25$ for the transfer will not make them rich or pay attorney fees, but you can not do a transfer without one. clinton managed to reduce the # of dealer to around 89K, think about that the next time you want to buy or sell. I can appreciate and sympathize with both buyer and seller, but direct your anger towards the thief not the dealer. HE may have bought in good faith and did not make what you think, but you do not know. Many on this forum believe in the constitution as a protection of their rights but are willing to strip them from someone they do not know in a situation where you do not have all the facts. I suggest some of you read what you wrote and check facts before you make a general statement. CAJUNLAWYER: Thank You for your sanity in a firestorm. Rock on Mick J. Be Safe All

 

[mkk41]

Thanks for all your replies, I discussed this with the detective and he told me that the dealer was not liable because he did not steal the gun, he purchased it from the thief. The only way I could expect a refund from the dealer is out of the kindness of his heart. I don't know much about the dealer as I had never dealt with him before, it was just a table at a gunshow. I probably will contact him tomorrow but I'm in the midcoast and he is way up in northern Maine so its not feasible for me to go knock on his door.

I really can't believe the cops said this. I think a small claims court judge would compell him refund your $1000. And a call to the local ATF. (time they were on our side) Knowingly or not , he purchased stolen property and resold it , probably at a healthy profit. Don't know about the laws of Maine , but profiting from a crime , is a crime itself.

 

[CelticSire]

You know, it amazes me how many people cannot grasp a simple idea. If the dealer did not KNOW that the gun was stolen when he bought it from the thief, HE DID NOT COMMIT A CRIME! Call the ATF? Really? For what? They don't have jurisdiction in property theft cases, so is it just to harass the dealer? Why? And for EVERYONE's information, agencies are forbidden from using NCIC for anything other than law enforcement purposes. Running serial numbers for guns, or anything else for that matter, for private parties such as FFLs is a very serious violation and can get an agency's access to NCIC pulled. Do some agencies do it? Yes. Is it in accordance with NCIC access regulations? No. A lot of people are screaming for a database where we can all run numbers to see if guns are stolen. Really? You want gun registration at the national level? Because that is what you're asking for. Many times a gun will be stolen by a relative, the report is delayed because the owner wants to give Lil Johnny the chance to make it right, six months goes by and Lil Johnny is still not doing the right thing, so the owner reports the theft so he can claim it on his homeowner's insurance. Meanwhile the dealer that bought the gun in good faith has sold it to someone else and now it turns up hot. And some people on here want the dealer to be prosecuted, turned over to the ATF, give everybody from Moses on their money back, etc. According to every law I have researched over the last two days, the dealer in this situation is just as much a victim as is the OP and has no obligation to refund anything. And while I hate that fact for the OP, and can sympathize greatly, the simple fact is that unless someone here has PROOF that the dealer KNEW the gun was stolen when he bought it, HE IS IN THE CLEAR. I hate it for the OP, I really do, because I have had the same thing happen to me. Welcome to the adult world where sometimes bad things happen to good people.

 

[xcop]

dealer

The detective is correct in that as long as the dealer complied with local laws in buying the guns he is a victim as are you. He could only be in violation of criminal law if he didnt fill out whatever purchase paperwork your state or locality requires and then unless he is doing it a lot would only result in perhaps his local license being yanked. The dealer can do everything to the letter of the law and a stolen gun can still get sold. When cops run the serial number of a gun they may get 30 or more firearm hits with that serial number. They need to look all the way thru the data carefully to be certain a firearm isnt stolen. So if the person looking thru isnt careful doesnt have the time or whatever it can pass. Usually there are time limits that the dealer must hold the gun for before selling so it is possible they fill everything out perfectly and the detail checking the forms coming in is way behind so the gun gets sold. Also input errors in putting the gun into the system cause problems. A clerk may enter a Colt Cobra 38 as make of Cobra and model as 38..........takes a lot of work to find it down the road. I would check your homeowners or renters insurance as you may be covered by the policy to some degree. I think if a small claims judge was shown proof that the dealer complied with all regulations he will rule the dealer as a victim.

 

[celticfisherman]

Well, I called the FFL that I purchased the gun from today. He told me that the crook had stolen 32 guns from the victim and it sounds like the bulk of them went through the dealer I purchased this gun from. He said that he is a small dealer that sells from his house and he does not have the resources to refund everyones money and I have to go thorough the court system to get my refund. He did say that if he can move some of the stock he has on hand that he will start giving refunds. If I am one of 32 though I won't be holding my breath. It's my understanding that the only recourse that I have against the dealer is if I can prove that he knew that the gun was stolen, and what it comes down to is if he doesn't have the money I'm out of luck and to run up attorney fees would be futile. Even if the DA does make restitution a part of the crooks sentence he will be in prison for quite some time so I won't hold my breath on that either.
A member that resonded to this thread suggested the Maine Attorney General so I may give them a try, but once again if the dealer has no money whats the sense. It sounds to me like the DA may be my best shot even if it takes awhile.
I guess the lesson here is to know your ffl dealers and be careful.

Man that is just bad news. My personal opinion is this and it's worth what an opinion is:

This story stinks to high heaven. 32 guns running thru this one "small dealer". I've worked for a couple of dealers and anytime something like this came up there was a lot of research done to establish providence and etc. This was no small deal everyone I've ever dealt with on this scale was thoroughly checked out before it went down.

Next: the guy flat out refused saying he couldn't afford to. Well I've made bad business decisions before and I had to make them right. No choice. So this pity attempt would have exactly ZERO affect on my decision. It is what it is... I'd be after this guy so fast it wouldn't be funny. Be the first in line at the courthouse not the last. The last won't get a d#$# dime.

ATF- I agree this would be my last move but I would do all I could to ensure this guy's FFL was gone by the time this was over. I would not tolerate the "I can't afford to excuse".

IN regards to personal sales that so many have mentioned- When dealing face to face we are not under the same restrictions or expectations as a FFL dealer. BUT if the guy stinks to high heaven you need to use good judgement just because you are a responsible gun owner and trader.

 

[Hayfield123]

At a minimum, the dealer owes you the difference between what he paid for the pistol and what you paid him. For that portion of the cost, he is not the victim . . . his only loss was the money he paid for the pistol. In this case, he has profited on the sale of stolen firearms . . . if he sells from his home, that is his place of business. Ask your state attorney general's office how Maine law applies here. You could end up with a lien on his home.

 

[photoman]

I would not tolerate the "I can't afford to excuse".

The only way I would accept that excuse is if the guy turned in his FFL and went out of business. If he's still in business, he's got money to pay.

 

[CAJUNLAWYER]

Cajunlawyer,
Not that I want to get off track here or that I am arguing your BAC law, but even if your BAC is over .08, what gives the state the right to put up a road block to check?

Mark

I'm with you on that, but the US and State Supreme Court have given the thumbs up on this based on a public safety concern. And that's that.

Cajun,
You oughta know by now that finding the exception to the rule another member just posted is sporting on this forum. Additionally, I'm curious if your generalization is in federal law and if so, whether it can be over ridden by state law as the Revised Code of Washington (RCW) appears to do by stating possession of a gun that's serial number has been removed is "prima facie evidence that the possessor has changed, altered, removed, or obliterated the [serial number]".

RCW 9.41.140: Alteration of identifying marks

No person may change, alter, remove, or obliterate the name of the maker, model, manufacturer's number, or other mark of identification on any firearm. Possession of any firearm upon which any such mark shall have been changed, altered, removed, or obliterated, shall be prima facie evidence that the possessor has changed, altered, removed, or obliterated the same. This section shall not apply to replacement barrels in old firearms, which barrels are produced by current manufacturers and therefor do not have the markings on the barrels of the original manufacturers who are no longer in business. This section also shall not apply if the changes do not make the firearm illegal for the person to possess under state or federal law.

Correct, but if the accused can explain away and prove that he didn't do it, then he overcomes this presumption.
Uses of presumptions in criminal law are carefully scrutinized by the courts for impermissible shifting of the burden of proof-some are OK, some are not-it is pretty much based on the facts of the case and the Judges-but that's a topic for another thread.
There is a very true saying in the law that "Bad facts make bad law." I've seen cases where the facts absolutely screamed for the Courts to fudge out an exception which they did. And then years later it comes back and kicks their teeth in when that decision is used as a "technicality" to cut loose someone that didn't deserve to be cut loose.
Problem with laws is that they are made by people, administered by people and are designed to provide order and structure for people. ANd yet people are surprised that the system ain't perfect! Yea right
If everyone just does the very best they can and keep trying then it all works out in the end. Trust me-doing your very best and never stop trying will absolutely beat out all of the failures when it comes time to do the final tally.

 

[Broadside]

At a minimum, the dealer owes you the difference between what he paid for the pistol and what you paid him. For that portion of the cost, he is not the victim . . . his only loss was the money he paid for the pistol. In this case, he has profited on the sale of stolen firearms . . .

Havfield123 - I agree with what you say here. However, you assume that the dealer sold every firearm he purchased from the thief.

It is possible that the dealer still had a number of firearms in his possession when the police notified him they were stolen. He would have had to surrender those to the police and would have been out that money.

 

[Broadside]

Dealers buying used guns have to fill out a pawn ticket and copy it to the local pd in every state I am aware of.

xcop,

I don't know Maine law, but I assure you that this is not the case in Virginia. There is no requirement or process for a gun dealer in Virginia to transmit any information about the individual firearm to the Virginia State Police when purchasing or selling a used firearm.

This applies to gun dealers. I do not know what the law is for a pawn broker. I assume that a pawn broker has a different license from a gun dealer.

 

[CALREB]

Like someone said before ,guy is still in business,bought 32 or so guns from one guy and didnt think to check if they were stolen. He already has spent everyones money. Well if he has product in his store go in and tell him you will take 1000.00 in other guns/scopes etc. or be first in line ,like right now, file a small claims case while he still has money, dont concern yourself with his problems. Wait till you find out that he paid 5000.00 for a gun collection that should have been 25,000. and now he wants sympathy so what, jump first.
I not saying the dealer should be filed on or anything ,Im just saying that as a business ,he gladly makes a big profit when he can , and he should (or be expected to ) make good on transactions HE initiated and completed, why should he, be not responsible .
He took your money and sold you something he had no right to sell. If he is not insured or goes broke repaying money he took in on this deal , then thats how it should be, as he is not much of a business person to begin with. I've lost money twice over the years on guys who had small gun businesses , that went bankrupt,while my( fully paid for ) gun was supposedly on order. So I have no sympathy for anything like this. Good Luck Bob

 

[C/O]

I am so sorry to hear that.

 

[vipermd]

Celticfisherman/Calreb- Have you seen the complete police report that states the dealer sold 32 ( OP said the thief stole 32 ), and as broadside noted he may have bought 32 and sold 1- paid a reasonable price and now is out the money for the theoretical 31 guns, which he took out a loan from the bank, and a relative. Hayfield/Photoman44- take away his license because he was a victim? Because he does not have the money now? Guess what OP will never get the money back that way. I agree it s**Ks, but you need to have all the facts. I would trying to repay the buyer (s) as soon as I could. I would give the dealer a chance to show good faith to provide a refund, but you can not "take" his stock, that is theft and could get you shot. I have seen/dealt with dealers that would "go the extra mile for you" while others would sell their mother if they could make a buck. Each time I purchase for myself on this forum I try to get info and talk to the person, I have been rewarded with a few nice guns, more importantly some friends. I do not know the laws of Me, I will hold "opinions" till I have all the facts. Be Safe,

 

[madmikeb]

vipermd is correct, when I talked to the dealer he said that he still had, I believe it was 9 of the guns still in stock that were taken by the police. I do not know how many of the 32 guns that were stolen were bought by this dealer, it does sound like it was quite a few. As I stated in my previous post he seemed sincere, and I don't think I would gain a thing by making his life miserable. As the old saying goes, "you can't get blood out of a turnip." I just have to do this by the letter of the law. I have been told that the DA will make the perp pay restitution as a condition of bail or parole, and I am on the DA's list. It stinks, I am out $1000 cash and a $1000 gun but sometimes bad things happen that are beyond our control. I just cannot justify spending money on attorneys, not to mention the aggravation and time that would be involved in pursueing the matter when in all actuality, a court of law would probably find that the dealer is a victim also. It could always be worse, I did not have 32 guns stolen. At least the original owner will most likely get his guns back and the perp is in jail.
I am extremely busy at work right now but when I get a chance I am going to check with my homeowners insurance and with the NRA insurance to see if they will do anything for me.

 

[paplinker]

vipermd is correct, when I talked to the dealer he said that he still had, I believe it was 9 of the guns still in stock that were taken by the police. I do not know how many of the 32 guns that were stolen were bought by this dealer, it does sound like it was quite a few. As I stated in my previous post he seemed sincere, and I don't think I would gain a thing by making his life miserable. As the old saying goes, "you can't get blood out of a turnip." I just have to do this by the letter of the law. I have been told that the DA will make the perp pay restitution as a condition of bail or parole, and I am on the DA's list. It stinks, I am out $1000 cash and a $1000 gun but sometimes bad things happen that are beyond our control. I just cannot justify spending money on attorneys, not to mention the aggravation and time that would be involved in pursueing the matter when in all actuality, a court of law would probably find that the dealer is a victim also. It could always be worse, I did not have 32 guns stolen. At least the original owner will most likely get his guns back and the perp is in jail.
I am extremely busy at work right now but when I get a chance I am going to check with my homeowners insurance and with the NRA insurance to see if they will do anything for me.

it seems like your making some headway at least. court restitution for bail-parole got my losses paid for me by the bad guy...good luck to you

 

[DS-66]

I had a similar situation years ago. I'm not familiar with ME law, but you may want to check and see if they have a crime victim's compensation fund. Good luck.

 

[smith41mag]

The dealer owes you $1000.00 back. Plain and simple. What he looses is not the fault of you.

Also, if he is a pawnbroker, he MUST report everything he buys to his local Sheriff / Police dept.

There's something not right here. It should have hit stolen when the background check was run.

It's really very simple, you need to go to the dealer and get your money. Be nice though.

It would be interesting to know what he gave for all of the guns.