Legal Issues with Kel Tec PF9 Trigger Upgrade ?

[ShootistPRS]

I will repeat what some of the legal eagles have said on this issue because I am not a lawyer. First: be reasonable in any modifications - especially if it is a carry gun. Second: If you intensionally pull the trigger its pull weight is a non-issue. Intensionally pulling the trigger means that there was no negligence involved. It was an intensional act so the topic will be, "were you justified in that act?"
Your character, moral values and the tool used are rarely brought up unless it was an unintentional shooting.
Remember that the jury uses the evidence of the case and not the comments from the lawyers to decide guilt or innocence.
I have sat on a few juries and even been elected to chair a couple. Opening remarks, closing remarks and comments made by the lawyers are not issues. Only the evidence and the weight of that evidence is discussed in deliberation.

 

[Walt Sherrill]

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.

Nothing in your hypothetical really seems to suggest that modifying a gun would make a "good shoot" not so good. (Good shoot = legal use of lethal force.) In your example, you described a "good shoot" when you wrote that the other party "...decides to roll the dice and charges. The gun goes bang." You've described a proper use of lethal force, and it would still have been so whether the trigger pull was 2.5 lbs. or 7 lbs. The fact that the other guy stopped and then started up again seems irrelevant.

Your second argument, which I bolded above, was in a following civil suit which could occur in some states but not in other. IN that case, it didn't matter whether the criminal case was considered a proper use of Lethal Force (i.e., a Good Shoot.) A district attorney or prosecutor didn't bring that suit; the other person's attorney did it.

While "The preponderance of evidence" is a lower standard "than beyond a reasonable doubt," the plaintiff's attorney will still have to explain away the other party's agression and the lack of criminal prosecution by the state will certainly be helpful. (We can only hope that the shooter has a competent attorney.)

And you're right about another point -- whether you win or lose, it's going to cost a lot of money if you're force to deal with a civil case.

Here in NC, our State Criminal Law says that if it was a good shoot (the shooter properly used Lethal Force), no following civil action is possible. Some other states do that, too -- but it's not true everywhere. That is why I wrote it would be good for the original poster to understand his state's laws.

NC's General Statutes address this issue like this:

§ 14-51.3. Use of force in defense of person; relief from criminal or civil liability.
(a) A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that the conduct is necessary to defend himself or herself or another against the other's imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat in any place he or she has the lawful right to be if either of the following applies:
(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another.
(2) Under the circumstances permitted pursuant to G.S. 14-51.2.
(b) A person who uses force as permitted by this section is justified in using such force and is immune from civil or criminal liability for the use of such force, unless the person against whom force was used is a law enforcement officer or bail bondsman who was lawfully acting in the performance of his or her official duties and the officer or bail bondsman identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer or bail bondsman in the lawful performance of his or her official duties. (2011-268, s. 1.)​

I think we've both properly tried to focus attention on the issue most folks discussing the use of Lethal Force overlook -- a following civil suit.

.

 

[Spats McGee]

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.

Nothing in your hypothetical really seems to suggest that modifying a gun would make a "good shoot" not so good. (Good shoot = legal use of lethal force.) In your example, you described a "good shoot" when you wrote that the other party "...decides to roll the dice and charges. The gun goes bang." You've described a proper use of lethal force, and it would still have been so whether the trigger pull was 2.5 lbs. or 7 lbs. The fact that the other guy stopped and then started up again seems irrelevant.

What I'm getting at is that the prosecutor may learn of that 2.5# trigger and decide that I'm a lying heap of dung. That prosecutor may, based in part on that trigger mod, decide that it wasn't SD at all, but was negligent homicide. Perhaps I should have made that clearer.

Your second argument, which I bolded above, was in a following civil suit which could occur in some states but not in other. IN that case, it didn't matter whether the criminal case was considered a proper use of Lethal Force (i.e., a Good Shoot.) A district attorney or prosecutor didn't bring that suit; the other person's attorney did it.

Correct as to who brought the suit, but I'll have to disagree on "could not occur in other states." As I've heard it phrased, "you can sue a ham sandwich." I'll point out some of the problems with the civil immunity statutes further down in relation to the NC statute.

While "The preponderance of evidence" is a lower standard "than beyond a reasonable doubt," the plaintiff's attorney will still have to explain away the other party's agression and the lack of criminal prosecution by the state will certainly be helpful. (We can only hope that the shooter has a competent attorney.)

Yes, that's true. However, if the plaintiff's attorney is claiming negligence, would you really want the extra variable of a hair trigger in there?

And you're right about another point -- whether you win or lose, it's going to cost a lot of money if you're force to deal with a civil case.

Yes, and the more variables are introduced into the trial, the more lawyer-hours & possibly experts it's going to take to sort it all out.

Here in NC, our State Criminal Law says that if it was a good shoot (the shooter properly used Lethal Force), no following civil action is possible. Some other states do that, too -- but it's not true everywhere. That is why I wrote it would be good for the original poster to understand his state's laws.

NC's General Statutes address this issue like this:
§ 14-51.3. Use of force in defense of person; relief from criminal or civil liability.
(a) A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that the conduct is necessary to defend himself or herself or another against the other's imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat in any place he or she has the lawful right to be if either of the following applies:
(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another.
(2) Under the circumstances permitted pursuant to G.S. 14-51.2.
(b) A person who uses force as permitted by this section is justified in using such force and is immune from civil or criminal liability for the use of such force, unless the person against whom force was used is a law enforcement officer or bail bondsman who was lawfully acting in the performance of his or her official duties and the officer or bail bondsman identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer or bail bondsman in the lawful performance of his or her official duties. (2011-268, s. 1.)

The first things I note by looking at Westlaw are that it's a 2011 statute, and there are no "Notes of Decisions," which means that there's been no appellate guidance on this statute. So, we'll have to take our best, educated guesses as to how courts will rule.

Let's look at this, because it's really the heart of the immunity discussion:

A person who uses force as permitted by this section is justified in using such force and is immune from civil or criminal liability for the use of such force, unless the person against whom force was used is a law enforcement officer . . . . [and some other stuff not relevant to this discussion]

N.C. Gen. Stat. Ann. § 14-51.3(b)

Let's look at some possible scenarios. Is an SD shooter entitled to immunity:

• If there were criminal charges filed and charges dismissed on SD grounds? I tend to think immunity would attach, but that hasn't actually been litigated. On the plaintiff's side, I'd argue that it is for the civil court to decide if immunity should be granted.
• What if charges were filed, but the case was dismissed on grounds other than SD? Like Speedy Trial? Would immunity attach then? If were the bad guy's plaintiff's attorney, my argument is that there has been no court finding that the use of force was justified.
• What if no charges are filed? Again, no court finding of SD or justified force . . .

I think we've both properly tried to focus attention on the issue most folks discussing the use of Lethal Force overlook -- a following civil suit.

Agreed.

 

[Frank Ettin]

I see this subject has come up again, and we're headed down the usual rabbit hole. So --

Spats,

The video is made by knowledgeable people....

I'll echo Spats' question, "How do you know?"

On the other hand, on this audio attorney Andrew Branca is interviewed and explains why modification which affect the firing functions of a gun are a bad idea when you plan to carry the gun or use it for self defense. Mr. Branca is an attorney in Massachusetts who has specialized in self defense law since 1997.

The interview is somewhat long but very much worth listening to.

And Marty Hayes provide an interesting article on the subject here, in the September 2013 edition of the Armed Citizens' Legal Defense Network Journal.

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....

Your fundamental problem here is you failure to appreciate that your intentional act of violence injuring or killing another human is not "an exercise of your lawful right of self defense" unless/until the District Attorney and/or the grand jury, or, if you're unlucky, the jurors at your trial decide that it is. You might think so, but once the law gets involved your opinion on the question really doesn't mean anything.

....They are not going to examine your gun more than they will examine your character....

By "they" here I take it you mean the DA and/or jury. If so, that's actually bad news, because "they" will be examining your character very closely.

When claiming self defense you are claiming that your otherwise criminal act of intentional violence injuring or killing another human is entitled to be excused because a reasonable and prudent person would under the circumstances of your incident have concluded that lethal force was the only way to prevent imminent death or grievous injury. Will the jurors see you as a reasonable and prudent person or as a trigger-happy gun nut.

Several years ago a lawyer by the name of Lisa Steele wrote an excellent article for lawyers on defending a self defense case. The article was entitled "Defending a Self Defense Case" and published in the March, 2007, edition of the journal of the National Association of Criminal Defense Lawyers, The Champion. It was republished in four parts, with permission, on the website, Truth About Guns. The article as republished can be read here: Part 1; Part 2; Part 3; and Part 4.

As Ms. Steele explains the unique character of a self defense case in Part 1:

...Self-defense is all-or-nothing. In order to establish it, the client has to admit being at the crime scene, with a weapon, which he or she used to intentionally harm the aggressor. The client has to admit that he injured the aggressor. The client has to convince the jury that if a reasonable person had been standing in his shoes, the reasonable person would have done the same thing. In effect, the aggressor invited his fate by threatening or inflicting serious bodily harm, or by threatening to kill the client.

In one fell swoop, the client has given up alibi and mistaken identity defenses. He or she has given up any claim that the wound was made by accident. Generally, the client must give up provocation (heat of passion or extreme emotional disturbance). Logically, provocation implies an unreasonable response to a situation, and mitigates murder to manslaughter. Self-defense implies a rational response to a very dangerous situation and, if successful, results in an acquittal. Similarly, the client must give up claims of mental illness or insanity and defenses based on intoxication or drug use....

....Here in NC, our State Criminal Law says that if it was a good shoot (the shooter properly used Lethal Force), no following civil action is possible.....

That's not entirely accurate.

The immunity only applies if it is established that the use of force was justified (and none of the exceptions apply). An acquittal in a criminal trial doesn't do that. It only establishes that the prosecution didn't convince the jury "beyond a reasonable doubt" of your guilt (Remember that O. J. Simpson was acquitted of the crime but hammered in the civil trial.).

If the plaintiff disputes your claim of justification (or claims that one of the exceptions to the immunity applies), he can still sue. And if the civil jury finds that the plaintiff has rebutted "by a preponderance of the evidence" your claim of justification, the jury could find you liable and award damages.

This subject is covered at greater length in this thread.

I will repeat what some of the legal eagles have said on this issue because I am not a lawyer. First: be reasonable in any modifications - especially if it is a carry gun. Second: If you intensionally pull the trigger its pull weight is a non-issue.....

Yes, you're not a lawyer. Other than that your statement is wrong. None of the "legal eagles", i. e., Spats McGee or I, have said what you claim. What Spats and I have said is here for all to read, and there's no need for me to repeat it.

...I work in this area professionally and there are a few things to consider based on my research and work over the years...

In your profile you call yourself a "forensic engineer." That's not the same as being a lawyer. Your role in the process is not the same as the lawyer's role; your skill set is different from that of a lawyer; and you will experience the process differently than a lawyer.

....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.....

Such as Spats and me? Such as Andrew Branca? Such as Marty Hayes? Really now?

....Your character, moral values and the tool used are rarely brought up...

How do you know? Your personal, limited experience on a jury? That is hardly a basis for your categorical statement.

 

[Lohman446]

We know, for a fact based on juror statements that Harold Fish's choice in handguns and caliber (10MM) did play a role in his initial conviction. I am not sure how one argues modifications emphatically could not.

 

[Spats McGee]

I work in this area professionally . . . .

Depending on what you mean by "this area," that could apply to several of us.

. . . . 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. . . .

So you've looked everywhere? Or are you trying to tell us that the cases of Daniel Bias, Partridge, Magliato and Harold Fish don't exist?

Here's another one where the term "hair trigger" comes up: http://scholar.google.com/scholar_c...on+v.+commonwealth&hl=en&as_sdt=1006&as_vis=1

Reardon v. Commonwealth, 2017 WL 636416. It's not an SD case, but Ms. Reardon claimed that the shooting was accidental and, during the course of the trial, a detective offered expert testimony about the hair trigger. Hmmm..... looks like somebody is taking a look at "hair triggers."

. . . .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.

I base my opinion on almost 15 years as a practicing attorney. To be precise, I'm a litigator.

4. Like anything having to do with Life and Death decisions, there is peril, so choose wisely based on facts.

Agreed, no question.

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.

Yeah, that may seem to have some surface appeal, I've yet to see any success in negligence actions for "failing to improve." If the trigger was crappy because of a failure to properly maintain equipment, maybe.

 

[Mr. Hill]

I think Mr Steele is making my point in that excerpt, but I just quickly glanced at the excerpt, and I have not read his complete statement. It is all or nothing, and the trigger mod won't matter when you tell the court that you intended to shoot to protect yourself in lawful self defense. An Un-modified gun isn't a condition precedent to invoking a self defense claim (as far as I know).

And I suspect that if you sue a ham sandwich, it'll be an action in rem. (there's little legal humor there for ya!)

The trigger mod might matter if you accidentally shoot someone and they sue you for negligence or wrongful death.

 

[Spats McGee]

. . . . the trigger mod won't matter when you tell the court that you intended to shoot to protect yourself in lawful self defense. . . .

That's only true if the court believes you.

 

[Lohman446]

the trigger mod won't matter when you tell the court that you intended to shoot to protect yourself in lawful self defense.

Well I should have been an attorney. So simple. I would just advise my clients to tell the court, investigators, and DA that they intended to shoot to protect themselves in lawful self defense and the charges will never come or just go away.

 

[Frank Ettin]

.....It is all or nothing, and the trigger mod won't matter when you tell the court you intended to shoot to protect yourself in lawful self defense.....

As Spats points out, no one has to take your word for it. If you're on trial, the DA and/or the grand jury didn't buy it. Now you're going to prison unless the jury buys it. That's where the trigger modification could have an effect. Possibly it won't, but it definitely won't if you didn't do it.

Even if you intended to shoot in "lawful" self defense, you're still toast if the circumstances didn't justify lethal force. And even if you honestly believed that the circumstances warranted lethal force, you're still toast if the jury doesn't believe your assessment was reasonable.

 

[Mr. Hill]

Of course I have the burden of proving the affirmative defense of self defense, or to prove mitigating factors that could result in a conviction of of manslaughter rather than murder (for example). I don't think the trigger mod is relevant evidence, at least to the matter of self defense. But relevance is whatever a judge decides.

We need a jury instruction for a trigger mod. That would answer the question!

 

[OldMarksman]

Of course I have the burden of proving the affirmative defense of self defense,...

Well, yeah, but the number of states in which you would have to do that today is very small.

What you need to do in most jurisdictions is (1) prevent the state from proving beyond a reasonable doubt that your action was not one of intentional, justifiable self defense and (2) prevent civil litigants from proving with a preponderance of the evidence that your action resulted from negligence.

Trigger mods that result in lightened pull weights and the use of revolvers that can be fired in the single action mode can both affect the thinking of jurors.

I don't think the trigger mod is relevant evidence, at least to the matter of self defense.

If you do not think it would be potentially relevant to establishing whether the action was or was not self defense, go ahead, and do what you like. All downside, not upside.

We need a jury instruction for a trigger mod. That would answer the question!

Let's stay away from attempts at humor.

 

[Frank Ettin]

...I don't think the trigger mod is relevant evidence, at least to the matter of self defense. But relevance is whatever a judge decides...

First, you're not on trial for self defense. You're on trial for assault with a deadly weapon, aggravated assault, manslaughter, murder, or some similar crime. Relevance with regard to matters offered into evidence by the prosecution will be decided by reference to the offense(s) charged.

In the Harold Fish case, which was alluded to above, evidence of the type of gun used, the cartridge used and the use of hollow point bullets was admitted. And we know from reported post verdict juror interviews that such evidence influenced the jury to convict. Was that evidence necessarily more relevant than evidence of a trigger modification?

And relevance is indeed decided by the judge, so you could file your motion in limine to exclude evidence of your trigger modification. If you lose the motion in limine, the evidence will be come in; the jury will hear it (and any arguments the prosecutor makes regarding it); and it will have the capacity to influence the jury (as the ammunition evidence influenced Fish's jury).

Maybe it will hurt you, and maybe it won't. But it certainly won't help you. And if you didn't modify the trigger there'd be no evidence. If there's no evidence you won't need to file your motion in limine and risk it being denied.

 

[Sawyer.N]

Old Marksman,

Guess this is another area of opinion, unless you are a lawyer and I dont know it, but I think you are wrong. I think you would be hard pressed to find a case where a gun mod was used against someone who used that weapon to legally defend themselves. It is a non-issue.

 

[Frank Ettin]

Old Marksman,

Guess this is another area of opinion, unless you are a lawyer and I dont know it, but I think you are wrong. ... It is a non-issue.

OldMarksman isn't a lawyer. But I know his background, including how and why he knows what he knows. I'm a lawyer, and I agree with him. Spats is a lawyer as well, and we've heard from Andrew Branca (at the link in post 44), a well known and respected self defense lawyer.

You apparently aren't a lawyer, but you think we're wrong.

Yes, it's a matter of opinion, but all opinions aren't equal. The opinion of someone educated and knowledgeable in a technical subject carries more weight than that of someone who is not. The opinion of my doctor regarding my health carries far more weight than that of my mechanic. If it didn't, I'd need a new doctor.

You're welcome to your opinion that a trigger modification is a non-issue, but your opinion appears to be based on nothing more than willful thinking.

 

[Sawyer.N]

Frank Ettin,

Fair enough. My opinions are always subject to change upon the receiving of new and accurate information. I have not seen any information in this thread that has prompted me to change my perspective on the issue. Old Marksman told me I was wrong, and I disagree, so I let him know.

plus this is an internet forum is it not? Everybody gets to post their opinion OR share real information here, and the good news is we can all keep our opinions at the end of the day. Maybe we should just let you lawyers post on legal thread topics, so that opinions of "a lower value" are not seen.

 

[Frank Ettin]

...Old Marksman told me I was wrong, and I disagree,...

And now I'll tell you that you're wrong.

...plus this is an internet forum is it not? Everybody gets to post their opinion OR share real information here, and the good news is we can all keep our opinions at the end of the day. Maybe we should just let you lawyers post on legal thread topics, so that opinions of "a lower value" are not seen.

Yes, everyone gets to keep his opinion. That doesn't mean the opinion is worth anything. Folks have a right to be wrong.

But the reality is that when it comes to legal matters, lawyers, or others who have studied law and acquired comparable knowledge, will know more about the topic and be able to provide more accurate and meaningful information. That's a fact of life. It's the same with doctors when it comes to medical matters, physicists if we're discussion quantum physics, and engineers if we're discussing engineering subjects.

The fact is that Spats and I have had our knowledge and understanding of the law tested pretty much every day of our working lives (I've been retired since 2007) in the real world for real stakes.

 

[OldMarksman]

I have not seen any information in this thread that has prompted me to change my perspective on the issue.

Might I respectfully suggest that you revisit Posts 28, 37, 43, 44, 48, and 53.

Reflect upon them carefully.

And then consider (1) the fact that when police officers routinely carried revolvers, a large number of major departments had them modified to prevent their being operated in the single action mode, and (2) many departments specified long heavy trigger pulls for semi autos, often insisting on pulls that were similar to "double action only". Do you think there might have been a reason for that?

 

[OldMarksman]

Something Frank said really bears repeating: " .... you're not on trial for self defense. You're on trial for assault with a deadly weapon, aggravated assault, manslaughter, murder, or some similar crime. "

Let me add this: you may also be on trial in a civil court for a negligent act that resulted in injury or death. The standard of proof in that venue will be a lot lower, and you will not win simply because the jurors do not reach a unanimous decision.

 

[OldMarksman]

Putting It Into Perspecive

The thread started with a question about the modification of the trigger in a semi auto pistol to lighten the pull weight. It would be useful for discussion purposes to group that subject with two others: the use of a firearm that had been delivered with a light trigger, such as a "race gun"; and the use of revolvers that can be fired single action.

To understand the legal risks, it is necessary first to understand why parties to litigation might have an interest in the subject of trigger pull weight.

In a criminal case, I can think of two reasons: (1) that the fact of the modification might go to "state of mind" in establishing whether a defendant claiming self defense might have been predisposed to violence in the first place; and (2) the possibility that prosecutors may believe it easier under some circumstances to gain a conviction for criminal negligence rather than for a deliberate unjustified shooting. Without that light trigger pull, both risks would be mitigated.

In a civil case, the motivation should be obvious: the deep pockets of the insurance company become available in the event of an unintentional shooting.

Keep in mind that the actor will have contended that the shooing was intentional, and that he was the good guy, and that he acted out of necessity. But his word may not count for much in court.

That takes us into that old "good shoot" discussion. Keep in mind that unlike screen fiction, what happens in a real use of force incident is not recorded in full on a sound stage for playback. And there is no one who is known to be the "good guy".

The scenario must be pieced together from whatever bits of evidence can be gathered after the fact, and some key pieces may have been lost forever. Eyewitness testimony is notoriously unreliable, for a number of reasons. And some of what the actor remembers may be contradicted by forensic evidence.

Whether it was a "good those pieces.

All of the above is covered in MAG-20 Classroom, a excellent course in rules of engagement for armed law-abiding private citizens. Real cases are discussed. And one has the opportunity to ask questions directly.

It is worth the cost and the cost and time required to travel and attend.