Who's to blame?

[45_auto]

It's always been my understanding that if a pawnshop took a gun in it had to clear a background check before it could be released to anyone even if it was the person who pawned it.

You misunderstood. The serial numbers (guns and everything else) are required to be provided to local law enforcement, but it's a one-way street. The pawnshop is not required to wait on an OK from the cops before they release an item. It is up to the cops what they do with the serial numbers. Most run them as soon as practical, if they get a hit (stolen) they come get the item. If it's been purchased or picked up they get it from the person who has it.

In the state of louisiana every gun that goes thru a pawn broker has to be registered into a national database.

Not sure what Louisiana you live in, but in the one in the US that includes New Orleans, no guns that go thru a pawnbroker are "registered into a national database". Serial numbers of guns and most other pawned items are usually checked against the information contained in the NCIC (National Crime Information Center) database, but so far as I know none of it is registered.

All pawnshop transactional information (including gun serial numbers) is required to be provided to local law enforcement daily or as required by the police chief or sheriff. Most departments routinely check the serial numbers of guns and major items against the NCIC database. Since pawning stolen goods is very common, many departments check every serial number of everything against the NCIC.

https://www.legis.la.gov/Legis/Law.aspx?d=93485

§1798. Information furnished to police, sheriff, or Department of Public Safety and Corrections

A.(1) Every pawnbroker shall provide all transactional information obtained pursuant to R.S. 37:1796 to the chief of police of the city or town in which he is doing business or to the sheriff of the parish in which he is doing business, on a daily basis by the end of the next business day or on such less frequent basis as is required by the chief of police or sheriff. The means for providing the transactional information required under this Section shall be selected by the chief of police or sheriff and shall be one of the following:

Sounds like to me like your buddy pawned the gun, then paid his loan off and picked it up before the local law enforcement agency had a chance to run it's serial number in NCIC. Once they did, they wanted the stolen gun.

When the pawn shop demanded the gun be returned to them (not law enforcement) did they return the money in question?

What money in question? He pawned the gun, the pawn shop loaned him money. He repaid the loan with interest and got the gun back. Are you suggesting that they return whatever interest he paid on the loan?

 

[Lohman446]

What money in question? He pawned the gun, the pawn shop loaned him money. He repaid the loan with interest and got the gun back. Are you suggesting that they return whatever interest he paid on the loan?

I'm suggesting the pawn shop is now in possession of the money loaned against the gun (he paid back the loan to get back the gun) and the gun itself.

Pretty much a no lose situation for them. If they demanded back the gun which was effectively "bought back" from them by redeeming the loan they should have also returned to the same status as before the loan was paid off (by returning the money). If they wanted to argue at that point that the friend should have never pawned the firearm (because it was stolen and they could not take possession) they should have then returned the firearm to the friend in return for the money.

At no point should the pawn shop gain and have possession of both the money and the gun because at no point was that the "chain of ownership"(even illegitimate ownership) of the item in question.

Now had the gun properly been handed over to law enforcement your friend would still be out the money. It strikes me as odd that the pawn shop should have both the money and the gun

 

[Boogershooter]

45 you are correct. The data base I stated was the ncic but I completely mistakes it. It's not actually registered, it's checked thru it. Most pawn shops wait til the ncic check is completed before they sale a gun. The pawn shop does not have possession of the gun the sheriff's dept does.

 

[Lohman446]

The pawn shop does not have possession of the gun the sheriff's dept does.

I misunderstood that and it led to my confusion. My bad

 

[kilimanjaro]

It was stated above the gun was returned to the pawnshop, no misunderstanding at all. Apparently the Sheriff has picked it up there and now holds it in their custody.

Do have your bud's get his attorney to contact the Sheriff, just to make it clear that your bud is an innocent purchaser, perhaps clarify the possession chain before he acquired it, and incidentally make claim to the rifle now in anticipation of the waiting period. He should also inform the pawnshop that they have no claim on the rifle.

With the Sheriff receiving the rifle from the pawnshop, returning it to the pawnshop is going to be a very simple action next year, just one "Oops", and your bud is out the price of his rifle.

 

[m&p45acp10+1]

If it had came back as stolen before your friend paid back the loan your friend would have had to repay the loan anyway. The gun would have been given to the appropriate LEO and returned to its owner that reported it stolen. I had 5 guns returned to me well over 5 years after I reported them stolen. The story is close to what your friend went through except they did not give them to the guy that pawned them. Provided he repayed the loan no charges were filed.

 

[Frank Ettin]

Basically, Louisiana will require the victim of a theft pay a BFP the price paid if the victim wants the item back. ....

No, that's not what the statute you quoted says. Article 524 of the Louisiana Civil Code reads in pertinent part (emphasis added):

The owner of a lost or stolen movable may recover it from a possessor who bought it in good faith at a public auction or from a merchant customarily selling similar things on reimbursing the purchase price....

So the obligation of the original owner to reimburse a good faith purchaser applies only when the good faith purchaser acquired the item at a public auction or from a merchant selling similar things. So the obligation of reimbursement would not apply when the purchaser acquired the item through a private sale.

See also Article 526:

The owner of a thing is entitled to recover it from anyone who possesses or detains it without right and to obtain judgment recognizing his ownership and ordering delivery of the thing to him.

....The theory is that the victim of the theft could have insured against the theft and be made whole; the BFP has no way of protecting himself from the loss.

Cite authority. Actually, you're making that up.

The actual reason for the unique Louisiana rule is that Louisiana is a Civil (Roman) Law jurisdiction. Vestiges of Civil Law principles are also found in the community property systems of marital property adopted in nine States.

The differences between the rights of a good faith purchaser of stolen goods under Common Law principles and Civil Law principles were outlined this very interesting article, Schwartz, Alan, "Rethinking the Laws of Good Faith Purchase" (2011). Faculty Scholarship Series. Paper 4166, pp 1335 -- 1336 (footnotes omitted):

...Uniformity across legal systems does exist, but only at the level of first principles. Common law and civil code systems all begin with the fundamental principle that, ordinarily, one cannot convey greater rights than one has-a principle embodied in the Latin maxim nemo dat quod non habet. The variation across legal systems arises because countries create significantly different exceptions to the nemo dat principle. Under the law of good faith purchase as it is embodied in the Uniform Commercial Code (U.C.C.), the nemo dat rule is subject to only two exceptions. First, under the "voidable title" rule, if the original owner is induced-say, by fraud or deceit-to transfer goods under a transaction of purchase, the transferee acquires the power to transfer a good title to a good faith purchaser for value. Second, under the "entrustment" rule, if the original owner entrusts goods to a merchant who deals in goods of the kind, the merchant has the power to transfer the owner's title to a buyer in the ordinary course of business. But, as noted above, in many other legal systems an innocent buyer can acquire rights in yet a third context where stolen goods are transferred to a merchant dealer who, in turn, sells the goods to a bona fide purchaser for value. The buyer, if in good faith, prevails against the original owner under the Market Overt rule.....

 

[thallub]

Such are the hazards of buying stolen property.

About 20 years ago the 1962 327 Corvette belonging to an acquaintance was stolen. About 15 years later an observant policeman observed a 1962 Corvette being loaded into a shipping container at a Texas port. The policeman ran a check and discovered the car was stolen.

The police impounded the car and the department called the legal owner. The legal owner borrowed a car hauler trailer and retrieved his car from the police.

 

[Skans]

Frank, the whole point of the article you cite to (interesting article, by the way) is to expose the lack of uniformity in "good faith purchase laws". From your Yale Law Review article:

"The lack of harmony in good faith purchase laws, combined with the multibillion dollar market in stolen goods, creates costly and unnecessary domestic and international litigation. Over the last two decades, there has
been a dramatic increase in contests between original owners and good faith purchasers. The cases raise complex conflict of laws issues. In many of the cases, the resolution of the contest turns on the question of which jurisdiction's law determines the parties' rights. Thus, when the location of the goods and/or the domicile of the claimants are in different states or nations, the multijurisdictional character of the dispute substantially complicates the ownership issues."

And, then the article goes on to propose a solution to the perceived problem. I admit, some of the defenses hing on various statutes of limitations rather than BFP, but the results are basically the same.

 

[Frank Ettin]

..the whole point of the article you cite to (interesting article, by the way) is to expose the lack of uniformity in "good faith purchase laws"....

Yes but the perspective was international.

We're only interested in this thread in the U. S., and the laws here on this issue are generally uniform from State-to-State. Louisiana is an outlier because of the strong influence of Civil Law there. And even in Louisiana, the general rule that legal title is not be transferred to a good faith purchaser of stolen property applies to something sold privately.

 

[cjwils]

Several years ago, I was told that there are some states (Oregon was specifically mentioned) in which a pawnbroker is not required to return a stolen gun at no cost to the legitimate owner. The best the legitimate owner can hope for is that the pawnbroker is required to allow the owner to buy the gun back at the pawnbroker's cost. I did a quick google search just now, and didn't find anything on this. Is this a real legal process in some states, or was I misinformed?

 

[Skans]

No, if you read the article, it discussed in terms of both state and international: ...claimants are in different states or nations...."


However, I acknowledge that you are technically correct that rarely will BFP be recognized for outright theft (except perhaps Louisiana under some circumstances and other code oriented countries), it may be recognized (depending on the State) where goods are obtained through some kind of trickery, fraud or deceit. That can be a pretty blurry line.