DAO most defensible type of gun for concealed carry?

[Tennessee Gentleman]

I may be wrong on this (I am not a lawyer) but even though the AZ law changed; the use of Self Defense is still an affirmative defense meaning you admit you did the killing and if you want to beat the charge you had better convince the jury you had good reason to do so.

Maybe semantics but I am thinking in real world terms you still have the burden or proof especially in a case like Fish where he shot an unarmed man.

I agree that an expert like Mas Ayoob could have helped Fish (caliber and JHP issues) and Fish probably should have taken the stand as well (one of the jurors mentioned that too).

 

[MLeake]

KChen, that assumes that CCW pulls all the way through on the DA trigger - which is much less likely if he didn't mean to do it.

In other words, your "positive" assumes the shot will be taken, either way; my "positive" assumes the longer, heavier pull helps CCW manage to stop his pull in time to not take the shot.

And yes, it looks like we are typing in parallel, so we'll miss some things as we go.

 

[Webleymkv]

Originally posted by Tennessee Gentleman

I may be wrong on this (I am not a lawyer) but even though the AZ law changed; the use of Self Defense is still an affirmative defense meaning you admit you did the killing and if you want to beat the charge you had better convince the jury you had good reason to do so.

The way AZ law reads, it appears that self-defense is no longer an affirmative defense.

States that justification defenses are not affirmative defenses.

· Requires the state to prove beyond a reasonable doubt that the defendant did not act with justification under the self-defense statutes if the defendant presents any evidence of justification.

http://www.azleg.gov//FormatDocument.asp?inDoc=/legtext/47leg/2r/summary/h.sb1145_03-11-06_jud.doc.htm&Session_ID=83

Now, as far as the Fish case goes, the only real evidence that he had was his word. The man who was shot had a past history that was consistent with Fish's story, but the judge did not allow that history to be brought up based on the rationale that because Fish had no prior knowledge of the man, his past behavior was irrelevant.

 

[MLeake]

I think where we will all find common ground is here:

Realize that your choice of equipment, caliber, ammo type, etc could be used by either an overzealous prosecutor, or a gun-ignorant prosecutor, to paint a picture of a dangerous wannabe vigilante.

Knowing that, be prepared to explain to a non-gun jury (because shooters, cops, and military will probably be excluded during jury selection for a shooting case) why you use what you use.

For instance, had Harold Fish explained that: 1) 10mm is a very common caliber for outdoors guns for semi-auto guys, as it provides some ability to defend against 4-legged predators (mountain lions were actually a factor in Fish's choice); 2) the 1911 is one of the most common handgun platforms in the US; 3) HP ammunition is the standard used by LE all over the US, because it minimizes the risk of penetration and ricochet, and normally causes events to be resolved with fewer shots fired; had all that been explained to the jury, then the snake would have been de-fanged.

Now, in that particular case, the instructions the judge gave to the jury, and the rules of evidence used by the judge, were challenged (and successfully so) in the appeal. Which means that even if you could explain that, you might not be allowed to do so.... But be prepared, nonetheless.

Also, be able to document training that shows you had made those conscious choices PRIOR to the shooting event.

Anticipate what the attacks will be, and have your counters ready.

Another example:

Q: "Why do you have a .40 caliber pistol, two spare magazines, and a .38 snubnose?"

A: "When I was active duty, it was standard issue to have at least two spare magazines; magazines are the most common points of failure in semiautomatic pistols, and stoppage clearing drills often require dropping the magazine that's currently in the pistol. I carry the revolver because it's accessible to my other hand, in case something happens to my right hand; it's available if my pistol has a malfunction; it's available in case an assailant grabs my pistol; and, it allows me to arm a capable friend who might be with me, but unarmed, in case of an attack. Please note that my local police and sheriff's departments also issue .40 caliber pistols, with at least two spare magazines, and issue or authorize backup handguns, for the same reasons."

 

[Tom Servo]

Is that nugget coming an actual defense attorney?...or from some sea lawyer?

I've heard that sort of advice, at various times, from police officers, instructors, friends of police officers, friends of instructors, gun shop employees, friends of gun shop employees, that guy Jed who shoots down at the quarry, Jed's friend Nine Toes Pete, and of course, the internet.

If a shoot is clearly justified, most DA's won't press the matter further. Weapon or ammunition selection may come into play if there's serious doubt regarding the justification. Like it or not, Fish made a few mistakes. That led to further questions being asked.

DAO = requires a firm, heavy, steady pull. Meaning you clearly had to have had the intent to fire.

Not necessarily. I've spoken to several people who've had negligent discharges with DAO firearms. The most recent was a guy who claimed that his holster caught the trigger of his Sig while he was reholstering, resulting in an injury to the gluteus maximus. In another case, I was at the range when a guy closed the cylinder on his revolver, pointed it downrange, pulled the trigger, and was surprised when it fired. Apparently, he had the habit of dry-firing the weapon after he'd cleared it.

My point? A DA (of DAO) trigger isn't going to compensate for poor weapon handling skills.

Claiming that you accidentally shot when you would have been justified in shooting intentionally turns a justified shooting into an accidental unjustified shooting. If you'd really been justified, you would have shot on purpose.

Exactly. That's why folks really need to think through what they're going to tell law enforcement following a shooting. Phrases like "I didn't mean to shoot him--it just happened," or even "I'm so sorry" can be a goldmine for a driven prosecutor.

Awhile back, I spoke with a guy who'd owned a gun shop in Maryland. He was forced to shoot an armed robber. He was cleared of any criminal charges, but the family of the robber tried to sue him in civil court for negligent homicide. He actually had to write on the affidavit that it wasn't accidental at all, that he'd meant to shoot the robber. That closed the case.

 

[checkmyswag]

Impressed at all the responses!

I don't really have a dog in this fight, was just a curious statement to me. I could see where you don't want a .50 hair trigger race gun shooting death in a shell custom reloads with 20 30 round mags taped together.

The statement was made several times. DAO is the most defensible pistol in court.

Someone mentioned what is "on the grips". For instance a SW "bodyguard" certainly sounds much better than a "Python".

I guess there are a 1000 things that go into a potential trial. .380 may be considered a "thug" caliber as it's mentioned in rap songs a lot. Could get into a jurors head. Same thing with the word "Glock", thanks Biggie Smalls! (Twin glocks cocked with infrared beams), Lil Wayne (not a REAL rapper) talks about 380s, Dr Dre talks on 44's? I think every caliber has been mentioned except some odd balls ones!

So I guess a .38 Super is the caliber to carry!

Back to action type. Sounds like so long as it's stock and not overly customized in the aggressive ways, one should be good to go so long as it's a "good shooting".

Most folks should never have to worry about it, but I thought I'd ask why here regarding the DAO.

Now, if a prosecutor were to transpose the letters, "ladies and gentlemen on the jury, this man was carrying a DOA handgun, that's right, DEAD ON ARRIVAL! proving he was out to do harm!"

But I digress.

 

[Tennessee Gentleman]

The way AZ law reads, it appears that self-defense is no longer an affirmative defense.

Yeah I read that before and it would seem true de jure but not IMO de facto.

By that I mean with an affirmative defense (layman's terms amateur speaking) you admit you did it (which saves the state a huge hurdle) but other facts excuse the fact that you did it. Namely self defense. So, you shoot and kill someone, claim self defense and then say nothing more and make the state prove it was murder? I don't think that would end well for most.

The law may say the burden of proof is on the state but the jury is who decides. We talked about this in other threads awhile back and I think were I in AZ and had to defend myself I would be offering lots of evidence to prove what I did was reasonable. But that's me.

The previous law did say that the defendent had the burden of proof and that changed legally but in fact I would not use that defense without taking that burden of proof on me as a fact.

Now, as far as the Fish case goes, the only real evidence that he had was his word.

No they had other evidence. Most importantly a dead UNARMED man. IMHO when you shoot an unarmed man with most all juries we can expect to get you are way behind the 8 ball from jump. Doesn't mean you won't get off but man it will be a climb unless the guy is Ray Lewis or you get a lucky jury selection.

Also, you are right that defendant cannot present as evidence the person he killed had a history of violence as reason for fearing for your life if you did not know of that violent past at the time. The court did not reverse on that issue. They reversed on other grounds but given a retrial (which I think they dropped?) Fish could very much be reconvicted.

I think Fish was stupid myself but that is another thread.

 

[MLeake]

One of the things they specifically reversed on was that while Fish didn't know about the dead man's prior behavior, and couldn't use such knowledge as part of his defense, the judge erred by not allowing testimony about the dead man's prior behavior that substantively matched the behavior described by Fish to police at the time.

In other words, Fish couldn't use knowledge he did not have of past bad behavior in his defense, but the defense should have been allowed to present evidence that the behavior Fish described was in fact supported by multiple prior instances, as part of an overall MO that came into play on that day.

 

[Tom Servo]

Someone mentioned what is "on the grips". For instance a SW "bodyguard" certainly sounds much better than a "Python".

Actually, that was covered in a thread not too long ago involving the oh-so-trendy "Punisher" grips. Again, many other things would have to be wrong with the situation before those would be a concern.

That's why I name my guns things like Disemboweler and Abominator. And Francis.

 

[Sarge]

Forget this nonsense about what is 'defensible' besides your life or the lives of your loved ones. Pick a commonly available defensive firearm, load it with suitable and commonly available defensive ammunition. Drive yourself to become skillful with it and hope you never have to use it. Know your state's laws on the defensive use of deadly force and use it only within those parameters.

 

[tipoc]

Excuse me if someone else mentioned this already, but...

Mas recommended DA revolvers, too, but recommended removing the SA notch from the sear, so nobody could claim you'd cocked the weapon and then accidentally fired it. Experts for civil plaintiffs have apparently made a show of cocking the defendant's revolver, and showing how it could have happened just like the plaintiff claims.

Mas said he was there when one so-called expert tried to cock a revolver that had no SA notch in the sear... shot the case down on the spot, as the gun could not be cocked.

Ayoob, as I recall, wrote several articles in which he recommended dao revolvers or dao semis. In these he cited the cases of two different police officers in different cities who were involved in shootings in which both faced disciplinary charges. In one the officer was holding a suspect at gun point with a cocked revolver and the officer inadvertently pulled the trigger. Ayoob made the point that had the cop been carrying a dao revolver the shooting would not have occurred and he encouraged folks to make their carry wheelguns dao. In the second case a prosuecuter argued that the officer had a "hair trigger" single action trigger pull on his gun. Ayoob argued that this argument can be gotten away with by a dao gun.

If those arguments impressed a fella he could go with a dao gun.

Ayoob has also written articles where he praised the operating system of the 1911, and traditional da/sa guns and revolvers.

Folks should be familiar with what they carry. If you prefer a dao gun to other types than by all means carry and use that. But safety comes from the person handling the gun. It is not built into the gun. Or rather any safety feature built into a gun can be overcome by improper handing.

tipoc

 

[threegun]

Dear threegun,

My CCW instructor made a big point out of the trigger issue and told us to NEVER modifiy the trigger pull on a CCW weapon. His reasoning was that it leaves the impression with the jury of a hotrod gun slinger looking for someone to shoot. He serves as an expert witness in many firearms related cases and his conjecture is that appearance is one of the most important factors in a case that goes to the jury. He further stated that the prosecutor will focus on a modified or light trigger pull and it will be an issue.

Most good shootings don't end with the good guy being charged hence no jury. Most of the rest can be argued otherwise. So already the chances of it ever becoming an issue is very slight. When you think it through is the slight chance of it effecting you worth worrying about?

The same type argument could be made by prosecutors if you use hollow points, fire multiple rounds, or even target high priority areas. Areas that would be more likely to cause death when shot.

 

[john in jax]

Maybe I missed it but yall seem to be ignoring striker fired pistols which seem to address both issues mentioned:

#1 no hammer to cock eliminating the legal and safety concerns brought up in the previous pages.

#2 the trigger pull on a striker fired pistol is usually lighter than that of a DAO pistol and significantly lighter and shorter than that of a DAO revolver, BUT not as light or as short as one firing from single action.

 

[Webleymkv]

Quote:
Originally Posted by Webleymkv
The way AZ law reads, it appears that self-defense is no longer an affirmative defense.

Yeah I read that before and it would seem true de jure but not IMO de facto.

Possibly, I don't really know because I'm not a lawyer either. I was merely taking the law at what it said, which is a bit vauge.

Quote:
Originally Posted by Webleymkv
Now, as far as the Fish case goes, the only real evidence that he had was his word.

No they had other evidence. Most importantly a dead UNARMED man. IMHO when you shoot an unarmed man with most all juries we can expect to get you are way behind the 8 ball from jump. Doesn't mean you won't get off but man it will be a climb unless the guy is Ray Lewis or you get a lucky jury selection.

I think you misunderstood me, the only evidence that Fish had to defend himself with was his word. You are correct that shooting an unarmed man with no other evidence of self-defense other than your word isn't a good situation to be in.

Also, you are right that defendant cannot present as evidence the person he killed had a history of violence as reason for fearing for your life if you did not know of that violent past at the time. The court did not reverse on that issue. They reversed on other grounds but given a retrial (which I think they dropped?) Fish could very much be reconvicted.

Again, I think you're misunderstanding the significance of the man's prior history. Fish never claimed to be in fear for his life because of prior history. That would, of course, be absurd because Fish had no way of knowing that prior history at the time of the shooting. Where prior history comes into play is that the man had a history of almost exactly the same behavior that prompted Fish to shoot him. While Fish had no way of knowing that prior history, it coroborated his story nonetheless (even more so since Fish had no knowledge of it). The man's prior history in and of itself doesn't prove much, but it does make Fish's story more believable.

I think Fish was stupid myself but that is another thread.

I don't necessarily disagree with you, but as we can agree that's not pertinent to this discussion.

 

[Tennessee Gentleman]

Possibly, I don't really know because I'm not a lawyer either.

I guess my point here is that this revised law would not IMO help Fish much were he to be retried.

The man's prior history in and of itself doesn't prove much, but it does make Fish's story more believable.

Maybe, but if I read the reversal correctly not allowing that evidence was not reversable error rather it was the judge's instructions to the jury. My point here is that if I was confronted with Ted Bundy (unbeknownst to me who he was), shot and killed him and did not meet the legal standard of self defense then I could be successfully be convicted of murder regardless of his past. However, in Bundy's case I suspect the DA would not press charges but he could.

 

[Alaska444]

threegun
Senior Member

Join Date: March 1, 2006
Location: Tampa,Fl
Posts: 3,943
Quote:
Dear threegun,

My CCW instructor made a big point out of the trigger issue and told us to NEVER modifiy the trigger pull on a CCW weapon. His reasoning was that it leaves the impression with the jury of a hotrod gun slinger looking for someone to shoot. He serves as an expert witness in many firearms related cases and his conjecture is that appearance is one of the most important factors in a case that goes to the jury. He further stated that the prosecutor will focus on a modified or light trigger pull and it will be an issue.
Most good shootings don't end with the good guy being charged hence no jury. Most of the rest can be argued otherwise. So already the chances of it ever becoming an issue is very slight. When you think it through is the slight chance of it effecting you worth worrying about?

The same type argument could be made by prosecutors if you use hollow points, fire multiple rounds, or even target high priority areas. Areas that would be more likely to cause death when shot.

Dear Threegun, not sure what the basis of your statement comes from? Personal experience?

I listed my comment coming from my CCW instructor, Ed Santos, a nationally and internationally recognized firearms expert. In addition to the risk of criminal prosecution, almost every "good" shoot will be followed by a civil court case by the victim or the victim's relatives. Impression of the shooters intentions and actions are easily clouded by such things as modified triggers. In addition, it sets up increased expert witness costs as well since you will have to answer these issues with your own expert witnesses.

Yes, the risk of being involved in a shooting is quite low thankfully, but if you are involved, you will want every aspect of the case in your favor. Having a hair trigger on a concealed carry weapon sets up the accusation that you are just a trigger happy nut looking for people to shoot. If you happen to live in an area where gun control is sought by the populace and has little population involved in hunting and handling guns, I would be very careful with this and other issues.

 

[Tom Servo]

In addition to the risk of criminal prosecution, almost every "good" shoot will be followed by a civil court case by the victim or the victim's relatives.

Actually, several states (including my native Georgia) have castle doctrine laws, under which civil action cannot be brought if the shoot was ruled to be justified.

 

[tipoc]

Yes, the risk of being involved in a shooting is quite low thankfully, but if you are involved, you will want every aspect of the case in your favor. Having a hair trigger on a concealed carry weapon sets up the accusation that you are just a trigger happy nut looking for people to shoot.

What is a "hair trigger"? In the scenario above it is whatever the prosecutor says it is. Is it 5pds? Less? 8pds and crisp? More? And what if a person is at home and does not shoot someone with a CCW but with a home defense weapon or they are hunting and shoots a fella with a hunting gun in self defense?

At a certain point you may want to drop the nonsense of trying to guess in advance what a prosecutor may say. Nope, just use normal discretion and common sense. It's true that some folks are short of that, but trying to draw a paint by the numbers set of guidelines leads to tedious misunderstandings. Your actions are defensive and so should your conduct and choice of weapons be. Facing the aftermath of a justified shooting is a part of that defensive mindset.

If you go through your daily life carrying 2 guns with 20 round mags in each and a spare mag for each gun, 3 "tactical" folding knives, a garrotte, bear spray, a tattoo on your forehead that reads "Kill em all, let God sort them out" and in the aftermath of a shooting you tell the cops..."I'll kill any man who does me wrong", you may be making life harder for yourself. Or in other words you are not being defensive.

In and of itself a dao gun is no more defensive than other action types. It is how you conduct yourself and the mindset that makes the difference.

tipoc

 

[Sarge]

At a certain point you may want to drop the nonsense of trying to guess in advance what a prosecutor may say. Nope, just use normal discretion and common sense. It's true that some folks are short of that, but trying to draw a paint by the numbers set of guidelines leads to tedious misunderstandings. Your actions are defensive and so should your conduct and choice of weapons be. Facing the aftermath of a justified shooting is a part of that defensive mindset.

Bingo. In a justified shooting, 'the prosecutor' won't say anything. You'll never hear from them. In a castle doctrine state, the likelihood of you being sued is pretty small, too.

I can't help but notice that the these boogie man alerts are often sounded by people trying to sell you something. Take that for whatever it's worth... at least I ain't charging you anything for the opinion.

 

[IMTHDUKE]

There are safe guns...

Then there are very safe guns carried with one in the pipe, yet uncocked till deployed.