Friday, February 7, 2014
TO: All California Licensed Firearm Dealers
RE: “Undetermined” DROS status and release of purchased firearms
It has come to our attention that erroneous information is circulating among California firearms retailers regarding Department of Justice (DOJ) DROS determinations of “Undetermined” status. These determinations usually follow the submission of a dealer request to DOJ on a “delayed” DROS transaction.
California Penal Code section 28220(f)(4) states:
If the department is unable to ascertain the final disposition of the arrest or criminal charge, or the outcome of the mental health treatment or evaluation, or the purchaser’s eligibility to purchase a firearm, as described in paragraph (1), within 30 days of the dealer’s original submission of purchaser information to the department pursuant to this section, the department shall immediately notify the dealer and the dealer may then immediately transfer the firearm to the purchaser, upon the dealer’s recording on the register or record of electronic transfer the date that the firearm is transferred.
On behalf of CAL-FFL and our dealer members, firearms attorney Jason Davis of Mission Viejo, CA, has evaluated the issue and warns that firearm retailers should be mindful of the risks of improperly denying a firearm purchaser their property.
A sale is a contract where money is exchanged for product (in these cases, a firearm(s)). Given that the law states that a dealer may deliver the firearm, and there is nothing legally prohibiting the dealer from delivering the firearm, the denial of the property to the owner may constitute a breach of contract and/or conversion of property.
Unless the sale contract states that (1) fees paid to the DOJ are non-refundable and that firearms will only be transferred if “approved” by the DOJ, and (2) that firearm purchasers whose eligibility is not determined by the DOJ to be authorized to receive a firearm (e.g. “Approved” and not “Undetermined” or “Denied”) will not have the firearm transferred to them, a retailer might consider negotiating a settlement including refunding the money paid and the fees charged for the firearm(s) purchase.
Note that one purpose of the federal Protection of Lawful Commerce in Arms Act, 15 U.S.C. §§ 7901-7903, is to “prohibit causes of action against manufacturers, distributors, dealers, and importers of firearms or ammunition products, and their trade associations, for the harm solely caused by the criminal or unlawful misuse of firearm products or ammunition products by others when the product functioned as designed and intended.” 15 U.S.C. § 7901(b)(1).
If you have any questions about this issue or require specific legal advice, we recommend that you contact Mr. Davis for a consultation at firstname.lastname@example.org or by telephone at 949-436-GUNS (4867).