Custom Handguns: One lawyer's perspective
First, my usual caveat, which I probably shamelessly stole from a post by another attorney on this board.
Caveat: I'm a lawyer, but I'm not your lawyer. What I'm about to say is not legal advice. It is merely commentary, but I've spent ~9 years in litigation, so I'm not totally unfamiliar with the processes involved.
Not to long ago, I read a quote that said, "if there's a fair fight, then I was unprepared." I don't recall who wrote it, but it wasn't me, and I like it. That is how I approach the issue of both SD and the legal aftermath. If it's a fair fight, I was unprepared.
If I remember correctly, this whole thread started with the question of whether using a custom gun for SD is as bad as handloads. For me, there's no simple "yes or no" answer to that. The issue is more one of risk management.
In our daily lives, each and every one of us weighs risks and rewards, often without thinking much about it. Example: Do I go to work each day? Yes, because the risk of losing my job outweighs the reward of staying home and throwing the Frisbee with my dog. By the same token, everyone who carries a pistol for SD has made a similar decision: The risk of being caught unarmed outweighs the reward of having a slightly easier time arranging our clothing to accomodate concealed carry (for example). Once this decision is made, then several questions follow:
1) What will I carry?
2) How will I carry it?
3) What will I put in it?
Under the theory of the "fair fight" laid out above, as I answer these questions, two of my goals is to make it as hard as humanly possible for the prosecution or the potential plaintiff's civil attorney to win; and place as many tools as I can at my attorney's disposal.
Down in L&CR, I created an archive thread as a repository for all of the threads that we see on SD & handloads. It's stickied at the top of the page, and just about every argument that can be made for or against handloads has been made in one or more of the threads linked there. Accordingly, I'm not going to go on ad nauseum (sp?) on handloads, at least not this time. Just a couple of quick comments.
First, as has been pointed out:
A) It is not the shooter that decides if the shoot was justified or not; and
B) If you're in court, someone doesn't think it was*.
*(In some cases, you may be faced simply with a plaintiff's attorney trying to shake out a settlement. It's not exactly the glamorous side of the legal profession, but it would be disingenuous of me to claim that it doesn't happen.)
Second, the risks posed by handloads are qualitatively different from those posed by custom guns. It's a question of "what kind of risk am I assuming by using them," not one of "how much risk am I assuming by using them." The latter is a quantitative assessment. The handload risk is an evidentiary one. By using handloads, you run the risk that certain evidence beneficial to the shooter may be excluded. The Daniel Bias case is an example. Now, before someone jumps in and says, "that's not a SD shooting case," I'll concede that. It's not. That's not relevant, though, because the rules of evidence are the same, regardless of whether the case is a criminal trial, an SD shooting, a quiet title action or a divorce. What's more, the Bias rulings (excluding the GSR evidence from the defendant's handloads) are consistent with my knowledge of the rules of evidence.
Custom guns, on the other hand, are a different beast in the courtroom. From an evidentiary perspective, and barring something relatively rare, such as having the shooter's pistol explode, the gun is not destroyed in the shooting. That means that it's available for testing both by the prosecution and defense. So the gun, custom or stock, does not suffer from the same evidentiary infirmities that handloads do.
The other risks involved with custom guns tend to be what I think of as "perception risks," and involve the prosecutor's, judge's and jury's perceptions. They will be used by the finder of fact both to determine what kind of person the shooter is, and his credibility. I cannot control their past experiences and prejudices, but I can control what is available for them to see.
The risks involved with a custom gun vary with the types of modifications made. Better feeding by polishing the feed ramp? That's a "function modification," and it's not too hard to make a jury understand how that works. Better sights? Same thing. Engraving "watch for flash" right below the bore? Or "kill them all and let God sort them out?" Those things add nothing in terms of functionality, and are easily used to give a jury the impression that the shooter was out looking for a reason to kill someone. Triggers are slightly trickier, in that smoothing out a trigger can be justified on function. A competent lawyer can get a jury to understand the shooter's position that he had his trigger smoothed out because: (a) he's a better shooter with a smoother trigger; thus (b) reducing the risk of missing his target; and thus (c) endangering bystanders with the stray round. A lighter trigger, on the other hand, is only justifiable to a point. The shooter can claim that he is a better shooter with a lighter trigger, the same as outlined for the smoother trigger, but (and this is a big "but") at some point, the trigger can be so light that the prosecutor or the plaintiff's civil lawyer may well claim that the shooter just pointed the gun at the target and accidentally shot the target. To say that such a claim cannot happen is folly. There are simply too many variables involved (evidence, state law, castle or SYG laws, and of course, the facts of the shooting) to make such a pronouncement.
For me, it's not a matter of fearing the lawyers or the lawsuits. As much time as I spend in courts and around lawyers, I'm not afraid of them. I do, however, respect how much financial damage one could do if I were to be successfully sued over an SD shooting. For that matter, even if I were to be unsuccessfully sued over an SD shooting, my own legal bills could far outweigh what I can afford. So I don't want a fair fight. If there must be a legal fight of any sort, I want it quick, I want it cheap, and I want to win.
