Spats McGee
Administrator
Yes, but that's "if it's a good shoot." That overlooks the possibility that gun modifications can be brought into the determination of whether it was "a good shoot" to begin with.Walt Sherrill said:
Legal Issues with Kel Tec PF9 Trigger Upgrade ?
- Thread starter lawndoctor1
- Start date
- Status
Somehow there is this theory that seems prevalent on various firearm forums that a "good" shoot is somehow easily determined.
Its not. They are not simply going to take your word for it. If they did virtually every homicide would result in the shooter staying in place, calling the police, and telling the story of a good shoot.
Any number of things can influence the investigators, the prosecuting attorney (Harold Fish), the federal attorneys (Zimmerman), or various other individuals that have some level of say over your prosecution (or not).
I cannot tell you for certain what exactly those things are. I can tell you that if I were in any of those positions and a modified trigger was discovered it would cause me to look at all the information a second or third time with a little more scrutiny. Maybe that puts me in the wrong somehow but that is from someone familiar with guns, who carries a gun for self defense, and who is a member of gun forums. You want to put that kind of information to a jury?
Its not. They are not simply going to take your word for it. If they did virtually every homicide would result in the shooter staying in place, calling the police, and telling the story of a good shoot.
Any number of things can influence the investigators, the prosecuting attorney (Harold Fish), the federal attorneys (Zimmerman), or various other individuals that have some level of say over your prosecution (or not).
I cannot tell you for certain what exactly those things are. I can tell you that if I were in any of those positions and a modified trigger was discovered it would cause me to look at all the information a second or third time with a little more scrutiny. Maybe that puts me in the wrong somehow but that is from someone familiar with guns, who carries a gun for self defense, and who is a member of gun forums. You want to put that kind of information to a jury?
Spats,
The video is made by knowledgeable people. And fighting a mod in court in the rare case it did actually occur has quite a few solid arguments, one of which goes along the lines of, I modify my guns to shoot them more accurately at the range. They are not going to examine your gun more than they will examine your character. Gun mods are a Non-issue.
The video is made by knowledgeable people. And fighting a mod in court in the rare case it did actually occur has quite a few solid arguments, one of which goes along the lines of, I modify my guns to shoot them more accurately at the range. They are not going to examine your gun more than they will examine your character. Gun mods are a Non-issue.
OldMarksman
Staff
It is routine.
Many states provide for immunity from civil liability, but that is invoked only when the defendant presents some evidence of self defense and a judge agrees that immunity is appropriate.
OldMarksman
Staff
Well, yes there is, depending upon the type of modification.
That is not the "biggest argument".
The biggest issue relates to how likely it is for a person under great stress to press the trigger inadvertently.
That is not a "solid argument".
They will "examine" both.
Hogwash!
This is a question of intent / fact and as such is weighed by a jury. I prefer not to give a jury more questions to weigh then absolutely necessary ESPECIALLY when the best possible outcome is they agree with my defense on that issue and it becomes a non-issue. There is no possible way it becomes a positive issue for my defense once it is an argued point.
OldMarksman
Staff
No!
"Homicide" may involve an accident, negligence, excusable intentional homicide (such as self defense), or some form of manslaughter or murder.
Not sure what that means.
Nope.
Yep.
If you think so.
Regarding "conviction", do not forget the number of cases, criminal and civil, that never make it to trial and are settled via plea bargaining.
Spats McGee
Administrator
And you know this how? The host, Adam, puts "esq." after his name, but I have no other knowledge that he is actually licensed to practice law or, if so, how long. If you do, please share.Sawyer.N said:
With that said, the video is actually better than I anticipated. However, let's take a look at exactly what the host says:
@ 1:11 -- "I'll begin with stating that I have been unable to find a documented instance where a modified gun was the entire basis for a criminal charging and conviction in relation to a self-defense shooting."
My response -- Of course not. Modifying your gun isn't illegal in any jurisdiction in which I've looked at the issue (with certain exceptions, like removing a serial number). What about where it forms the basis for a grand jury not believing the defendant's side of the story? Investigators, prosecutors, or the grand jury could find the modification relevant to determining the shooter's state of mind. On the civil side, a jury could find that the way in which the trigger was modified was negligent. See Partridge, supra.
@ 2:30 -- "Unless your jurisdiction has some sort of statute which would make modifying a firearm illegal, or impose some kind of enhanced penalty if it's used in a crime, [the modified firearm] really doesn't come into play at all."
My response -- Hogwash. I'm not claiming that a modified firearm absolutely will come into [legal] play, but it can.
@ 2:53 -- "Can the DA throw a firearms expert in to introduce evidence that your firearms expert was modified? Sure. Can the DA really harp on that point to make it seem like you modified your firearm with the intent to kill? Yeah, absolutely. Is it going to have an effect on the jury? Yeah, possibly, but who knows? But does that have anything to do with the underlying murder or manslaughter charge? No. Those have separate elements of which the gun has no part. However, it doesn't mean the jury won't take the gun into consideration, even though it has nothing to do with the underlying crime, or the elements of it, like intent."
My response -- I (mostly) agree with him. The jury could consider gun modifications on things like intent. One ignores the possible effects on a jury at one's own peril.
@ 3:50 -- "However, it's not to say a modified firearm could not potentially cause you some trouble."
My response -- Correct! He goes on to address criminal negligence, and I think he's mostly right here.
As a final note, the host only addresses the criminal side, with no mention of the possibility of a civil suit. I find ignoring that side of the equation to be ill-advised.
Aside from the one you've named, what are some of the other "quite a few solid arguments?"Sawyer.N said:
How do you know that "they are not going to examine your gun more than they will examine your character?" How do you know that an examination of your character will not involve an examination of your gun? Do you have any idea whether you will need an expert witness to rebut the other side's expert? Or what expert witnesses cost?
I have already provided two cases in which the trigger complicated the defendant's position. Do you have anything else on which to base your opinion?
OldMarksman
Staff
If the defendant in a use of force incident puts forth a defense of justification based on self defense, and if the jury instructions so allow, he or she will, of course, contend that the use of force had been lawful--and intentional.
The prosecution and /or a plaintiff in a civil trial may mount an entirely different argument, claiming that the defendant's actions resulted from a failure to exercise appropriate caution.
The weight of the trigger pull, and even the capability of a revolver to be fired in the single action mode, can become pivotal under such circumstances.
That is not simple conjecture. It has happened.
Your lawyer has X amount of money to work with. This money represents the lawyers time, any expert witnesses he or she may decide to call, and various other costs related to going to trial.
That X is different for everyone. For many its personal money so making it as small as possible is great. For others its some insurance fund which likely has a distinct upper limit. Some its a budget set by a public defender.
I want my lawyer to be able to mount an effective defense rather than having to fight issues that more or may not be extraneous. I also want the jury to be focused on the parts of the situation directly related to a self-defense assertion rather than issues that may or may not be extraneous.
Hence no modified trigger for me*
*One exception to this rule was when I was first carrying Glocks over revolvers. I opted for the "New York" style trigger that actually increased trigger weight (and I believe travel) over the stock Glock trigger. As this was a common modification by many police departments and I had the drop in modification done by a practicing gun smith I felt comfortable that it did not pose a legal concern.
That X is different for everyone. For many its personal money so making it as small as possible is great. For others its some insurance fund which likely has a distinct upper limit. Some its a budget set by a public defender.
I want my lawyer to be able to mount an effective defense rather than having to fight issues that more or may not be extraneous. I also want the jury to be focused on the parts of the situation directly related to a self-defense assertion rather than issues that may or may not be extraneous.
Hence no modified trigger for me*
*One exception to this rule was when I was first carrying Glocks over revolvers. I opted for the "New York" style trigger that actually increased trigger weight (and I believe travel) over the stock Glock trigger. As this was a common modification by many police departments and I had the drop in modification done by a practicing gun smith I felt comfortable that it did not pose a legal concern.
Spats McGee
Administrator
We're not so much "mixing up the issues" as pointing out the possible ramifications. If I ever have to shoot someone, I genuinely, sincerely hope it's an unquestionably lawful shoot in a self-defense situation. The reality is that I won't get to make that call. The folks who will decide whether it's a "lawful use of force in a self defense situation" may include investigators, prosecutors, judges and juries.Mr. Hill said:
If you start with the premise that we can only talk about firearm modifications in the context of "lawful" shootings, you're overlooking the possibility that those modifications can be used to determine whether the shooting was, in fact, lawful.
CalmerThanYou
New member
Never argue with an attorney, or an engineer, or of professor, or a politician, or a.....you get the idea.
The thread has been helpful to me....made me more aware of "possibilities"
The thread has been helpful to me....made me more aware of "possibilities"
I just don't understand how a lightened trigger could affect whether you lawfully exercised your right to self defense under an applicable state statute that provides for the same. This isn't a case involving negligence or product liability. You intended to shoot someone in the exercise of lawful self defense (which I realize is an affirmative defense), and a lightened trigger is irrelevant to the issue of whether you can invoke that affirmative defense.
Walt Sherrill
New member
Spats McGee:
Earlier I suggested that a "good shoot" as an event (by definition) that would not be hampered by using a modified weapon. The case you cited was NOT what I'd call a "good shoot" since the defendant in People vs. Magliato did one stupid thing after another over a period of time before finally stepping in the deep do-do.
In our state (and a number of surrounding states, and probably many others) anyone who goes away from a potentially dangerous altercation or confrontation and then returns to that area looking for the other party, armed and ready to rumble, is unlikely to find his action falling into a "good shoot" category/situation. A quick summary from the decision:
As I read the case it didn't seem as though modification of the gun played much of a role in the case's decision, even though the defendant tried to use the gun, which he claimed had a very easy-to-use trigger, in an attempt to convert an apparently intentional homicide into some sort of a negligent or accidental discharge. Maybe HE should have sued the gunmaker?
If there was no intent to do harm, why did he go back out carrying a weapon, why did he take a shooter's stance after confronting the other party, and why did he have his finger on the trigger? None of this conforms to the things I've heard when describing a "Good Shoot" -- where the shooter's actions are necessary to protect his own life or the life of others. If Magliato was threatened it was because he returned to the area; he sought out the confrontation, he did not avoid it.
The other case (State Farm Mutual Insurance vs Partridge) was a CIVIL case -- the type of case I warned about. Civil suits can sometimes be real crap shoots, and when lawyers get involved these discussions, the thing they seem most concerned about. How the jury is going to react given the testimony they hear is very hard to predict.
Earlier I suggested that a "good shoot" as an event (by definition) that would not be hampered by using a modified weapon. The case you cited was NOT what I'd call a "good shoot" since the defendant in People vs. Magliato did one stupid thing after another over a period of time before finally stepping in the deep do-do.
In our state (and a number of surrounding states, and probably many others) anyone who goes away from a potentially dangerous altercation or confrontation and then returns to that area looking for the other party, armed and ready to rumble, is unlikely to find his action falling into a "good shoot" category/situation. A quick summary from the decision:
...Thereafter, defendant had more than enough time to calm down and call the police from his apartment. Instead, he took a loaded gun from home and went back to the scene of the altercation. Defendant not only cocked the gun, but assumed a shooter's stance and took deliberate aim at Giani.
As I read the case it didn't seem as though modification of the gun played much of a role in the case's decision, even though the defendant tried to use the gun, which he claimed had a very easy-to-use trigger, in an attempt to convert an apparently intentional homicide into some sort of a negligent or accidental discharge. Maybe HE should have sued the gunmaker?
If there was no intent to do harm, why did he go back out carrying a weapon, why did he take a shooter's stance after confronting the other party, and why did he have his finger on the trigger? None of this conforms to the things I've heard when describing a "Good Shoot" -- where the shooter's actions are necessary to protect his own life or the life of others. If Magliato was threatened it was because he returned to the area; he sought out the confrontation, he did not avoid it.
The other case (State Farm Mutual Insurance vs Partridge) was a CIVIL case -- the type of case I warned about. Civil suits can sometimes be real crap shoots, and when lawyers get involved these discussions, the thing they seem most concerned about. How the jury is going to react given the testimony they hear is very hard to predict.
Last edited:
OldMarksman
Staff
It cannot.
It can affect what jurors decide regarding whether you did "lawfully exercise your right to lawful self defense"--that is, whether the jurors decide that you did in fact shoot intentionally and with lawful reason, or that is likely that, while pointing the gun, you inadvertently caused it to fire, or that you had modified the gun because you were predisposed to violence, which could weaken your defense of justification.
So you claim. But that is to be decided, based on the totality of the evidence, isn't it?
But it is not irrelevant to what the triers of fact may decide about the likelihood that the shooter did not shoot intentionally.
Nor is it irrelevant to the kinds of things that a jury may evaluate in detaining the state of mind of the shooter in determining whether it is likely that an intentional shooting had been lawful.
Spats McGee
Administrator
No doubt but that the defendant did some really dumb things there. However, if you start with the premise that "we only care about good shoots," then you've skipped right over the question of whether the modification in question can be used to determine whether it was a good shoot to begin with. Does that make sense?Walt Sherrill said:
Let me give you a hypothetical: Let's say I carry a 1911 with a 2.5# trigger. I am attacked, but can put about 10 feet between me and my attacker. I draw and he legitimately puts his hands up & surrenders. At this point, I cannot lawfully shoot him. He decides to roll the dice and charges. The gun goes bang. I may claim SD, and perhaps I'll prevail, because the State cannot prove in a criminal trial beyond a reasonable doubt that my actions were not SD. His estate may then sue me and claim that I did not shoot on purpose, but that it was either: (a) negligent to carry a firearm with such a light trigger; or (b) that I negligently squeezed the trigger; or (c) both. The estate's burden of proof is much lower than that of the criminal trial, so they only have to prove their side of the story by a preponderance of the evidence.
As well it should be.Walt Sherrill said:
It was enough that the appellate court actually talked about it. Favorably, from the defendant's perspective, but it nonetheless played a role. Regardless of whether you win or lose the court decision, you'll still have to pay the legal fees, and the more complicated the case, the more that's going to cost.Walt Sherrill said:
Yes. It was a civil case, and I hope that the scenario above illustrates why. Even in jurisdictions with civil immunity for lawful self-defense shootings, there are particular statutory requirements and there may be an attorney on the other side actively working to demonstrate that the shooter doesn't meet them. For example, if no charges are filed, will that mean immunity in a state where the immunity statute makes reference to a case in which the self-defense shooter "is found not guilty by reason of self-defense?" Probably not. There's no "not guilty" finding there, just charges never filed.Walt Sherrill said:
Please go back and re-read my posts. I've tried to make this clear. You don't get to choose what evidence the investigators, prosecutors or grand jury get to consider in determining whether you are guilty or innocent, except to the extent that you choose which equipment to carry. You also don't get to choose whether the assailant or his estate sue you for negligence later.Mr. Hill said:
The thing about carrying firearms is there are a lot of them out there and you may chose to modify them as you see fit within the law and accept whatever level of risk you want.
"I prefer a modified trigger and believe that you and others are over calculating the legal jeopardy of such and am willing to accept said legal jeapordy" is a defensible position. "There is no legal jeopardy associated to a modified firearm" is a fantastical position.
I know people who carried revolvers because they felt it would help garner a sympathetic jury or juror. Personally I don't even consider an AR-15 for home defense because I don't want any attachment to an "evil black rifle" should I ever have to defend myself in court. Does it mean I am right? No and I admit those decisions may go towards the overly cautious side.
Take whatever level of risk you are comfortable with though I am not certain, in a self defense gun, what gain you are hoping for with a modified trigger.
Don't deceive yourself to a lack of risk.
"I prefer a modified trigger and believe that you and others are over calculating the legal jeopardy of such and am willing to accept said legal jeapordy" is a defensible position. "There is no legal jeopardy associated to a modified firearm" is a fantastical position.
I know people who carried revolvers because they felt it would help garner a sympathetic jury or juror. Personally I don't even consider an AR-15 for home defense because I don't want any attachment to an "evil black rifle" should I ever have to defend myself in court. Does it mean I am right? No and I admit those decisions may go towards the overly cautious side.
Take whatever level of risk you are comfortable with though I am not certain, in a self defense gun, what gain you are hoping for with a modified trigger.
Don't deceive yourself to a lack of risk.
I will admit that I read the OP and then posted this.
Based on my experience, the posts between this and the OP will have some truth, some fib and some plain old ignorance.
I work in this area professionally and there are a few things to consider based on my research and work over the years.
1. There is NO case history proving what a single jury might or might not do.
2. There is NO body of evidence ANYWHERE, that suggests a justified shooting will be determined (by judge or jury) unjustified based on gun mods, handloads or anything else. IT DOES NOT EXIST.
3. The vast majority of hand-wringing on this topic is due to FALSE perpetuation of the opinions of a few ex-LEOs whose opinions have no basis in fact. That is what is called "Junk-Science". Any Lawyer worth his salt will get such opinions, and the experts who espouse them tossed.
4. Like anything having to do with Life and Death decisions, there is peril, so choose wisely based on facts.
Contrarian viewpoint could be that if you miss (and erroneously hit the proverbial blind pregnant nun holding a baby in her arms) with a crappy trigger, you are negligent for not improving your equipment.
Based on my experience, the posts between this and the OP will have some truth, some fib and some plain old ignorance.
I work in this area professionally and there are a few things to consider based on my research and work over the years.
1. There is NO case history proving what a single jury might or might not do.
2. There is NO body of evidence ANYWHERE, that suggests a justified shooting will be determined (by judge or jury) unjustified based on gun mods, handloads or anything else. IT DOES NOT EXIST.
3. The vast majority of hand-wringing on this topic is due to FALSE perpetuation of the opinions of a few ex-LEOs whose opinions have no basis in fact. That is what is called "Junk-Science". Any Lawyer worth his salt will get such opinions, and the experts who espouse them tossed.
4. Like anything having to do with Life and Death decisions, there is peril, so choose wisely based on facts.
Contrarian viewpoint could be that if you miss (and erroneously hit the proverbial blind pregnant nun holding a baby in her arms) with a crappy trigger, you are negligent for not improving your equipment.
- Status