NFA Devices for Home Defense (article)

[Andrew Wiggin]

I've heard that argument yet I have yet to see anyone produce a reference to a case where someone was convicted because of their use of a scary gun. Sure, there are outliers like the Fadden case (where it was claimed that he shot the guy in the back) and the Fish case (where there were multiple complicating factors) but I have yet to see someone point to a case where the defendant's actions were justified and he was convicted for a reasonable defense shooting just because he used a scary gun, even if we count self defense shootings outside the home. I know it's still outside my lane but it seems ever more unlikely that we could find such a case for a person defending their own home.

 

[Machineguntony]

I have to agree with Wiggins on this one...

But then again, I have a personal policy not to discuss law, religion, or politics, so I will withdraw from this discussion and will make no further comment.

 

[JohnKSa]

The Fadden case hinged largely on the fact that one of his round struck the biker across the back as he spun, prompting the claim that Fadden shot the man in the back.

One could easily make the case that this is an excellent argument against using a full-auto weapon for self-defense. Fadden triggered a 6 shot burst and it was the last shot of the burst that ended up looking questionable. Had he been shooting a semi-auto, or even had his gun been set to 3 round burst, the questionable shot almost certainly wouldn't have even been fired.

As the case so aptly demonstrates, we may be called upon to justify each bullet that leaves the muzzle--even if it's the last bullet out of a full-auto burst.

Willie, there was a case in Florida where gun-store owner Harry Beckwith used a machine gun to effectively repel several armed burglars.

From what I've been able to determine, a major factor in the case was that the circumstances of the shooting made it clear that Beckwith could have easily killed all of the gang that attacked him but he very obviously was quite judicious in his application of force, shooting only one of them. The fatal shot was, by the way, fired with a semi-auto rifle, not the submachinegun he brought to the fight. He only transitioned to the subgun after running the rifle dry.

In addition, Beckwith was retirement age at the time of the incident, which probably didn't hurt his image any either with law enforcement or in court. He did have to go before a grand jury.

 

[Glenn E. Meyer]

The OP has inadequately researched the issue of what influences juries and does not understand the models of jury decision. It is not whether someone is convicted only on firearms type issues or just on an NFA issue.

Since this has been discussed intensively and in one of our stickies, regarding ammo, I suggest that that one does not buy into a simplistic analysis of 'find me a case'. To even say that indicates a lack of appropriate research into legal and jury processes. I am not replaying this endless discussion by folks who won't step up to the research needed to understand the issue.

That's blunt but it's your tush on trial. Of course, the OP will resist this and some readers will too. No skin off my back.

 

[Andrew Wiggin]

So you can't find a case that supports that argument. Gotcha.

 

[Frank Ettin]

I've heard that argument yet I have yet to see anyone produce a reference to a case where someone was convicted because of their use of a scary gun....

More of the usual drivel. As you, yourself, wrote in the article you linked to in the OP:

The problem with opinions is that people who really don’t have any clue what they’re talking about are happy to offer one. They’ll just repeat any old garbage that they’ve heard on a subject, no matter how ridiculous and unfounded....

You are not as far as we know a lawyer. You do not, as far as we know, have any good reason to know from first hand experience how litigation works, how things are done in court, and how jurors think. For example, how many post verdict interviews of jurors by counsel have you participated in? Are you familiar with the research on jury behavior, such as this article, "Will it Hurt me in Court", by our own Glenn E. Meyer and published in the professional journal, The Jury Expert?

As far as looking for cases, the threshold question is always whether any the relevant factor (e. g.,modified gun, "scary gun", handloaded ammunition, etc,) was even present in past cases. How often have certain guns (or handloaded ammunition) been used in an incident in which self defense was claimed and which went to trial?

Historical research is helpful only if there's sufficient historical data. If the question is something like, "Is a private citizen who shoots someone and claims self defense more likely to be charged if he used a "scary" gun?", or "Is a private citizen who shoots someone and claims self defense more likely to be convicted at trial if he used a "scary" gun?", the availability of useful data depends on (1) a large enough sample of private citizens having shot someone in claimed self defense; and (2) a large enough subset of those private citizens having used a "scary" gun. I suggest that the vast majority of people who keep guns for self defense aren't enthusiasts and use pretty ordinary guns. Indeed, even many of the members here, who are enthusiasts, use pretty ordinary guns for self defense.

Just because there is insufficient historical data doesn't mean that professionals can't draw reasoned conclusions about how likely a particular result might be under certain circumstance. Indeed, it often happens in the practice of law that a particular issue of interest has not previously been addressed by an appellate court, and one must make a reasoned judgment without the guidance of on point precedent.

Things that go on in trials don't routinely hit the legal publications. In general, only decisions of an appellate court get published. So it would be very unlikely to see a case in which an issue with a lightened trigger showed up in published reports of appellate courts. There are very few cases of self defense in which a gun is actually fired; and only a few of those involved a modified gun; and only a few of those wind up in trial; and only a portion of those go up on appeal.

However, we have reasons to believe that things like ammunition or type of gun used can have an effect on the way members of a jury will view matters and therefore on whether, or how, they can be convinced. For example:

• From post verdict interviews of some of the jurors who convicted Harold Fish in Arizona, we know that the ammunition Fish used played a part in the jury verdict. (Fish did win his appeal, a new trial ordered, and the DA chose instead to dismiss the charges.)
  
  
• Jury simulation studies as describe in this article suggest that the type of gun used can also affect the perceptions of a jury. (The author, Dr. Glenn Meyer, is a moderator here.)
  
  
• I have personal knowledge, based on my participation in post verdict interviews of jurors, of how various things can affect how a juror views and evaluates evidence.

As Nassim Nicholas Taleb points out repeatedly in his books Fooled by Randomness, the Hidden Role of Chance (Random House, 2004) and The Black Swan, the Impact of the Highly Improbable (Random House, 2007), "Absence of evidence is not evidence of absence." Taleb, a securities trader and professor at the University of Massachusetts, provides some interesting and useful insights into strategies for dealing with rare events.

So you can't find a case that supports that argument....

So how frequently have NFA weapons/devices been used in acts of violence against other persons in circumstances later decided through our legal processes to have been justified self defense?

 

[Glenn E. Meyer]

As I said before, looking for a case as a deciding argument is prime evidence of not understanding the issue:

I suggest a starting primer into the large literature of jury decision making:

Jury Decision Making: The State of the Science (Psychology and Crime)
Devine.

Then there are many professional journals accessible from google scholar or professional data bases.

PS - the TJE article was one of its top downloads in the year it came out, so some attorney types seem to have paid attention to it.

 

[zukiphile]

I've heard that argument yet I have yet to see anyone produce a reference to a case where someone was convicted because of their use of a scary gun.

There was a similar issue presented when Mas Ayoob regularly posted here. That version of the issue was whether an excessively light pistol trigger would be used as a basis for a prosecutor to treat a justified shooting as an unjustified one.

It is certainly true that you will find no case in which a defendant was convicted because his pistol had a very light trigger or because he used a suppressor. Neither a light trigger nor a suppressor are elements of homicide. Similarly, you will find no cases in which a police officer gave someone a speeding ticket because he was driving a red car. The color of the car is not itself an element of a speeding infraction.

Yet, we know from experience that some characteristics can draw attention and change perceptions. People who advise against very light triggers or suppressors in a home defense weapon or against getting your sports car in red are sounding a caution about how those traits can influence perceptions, not about the elements of the crimes contemplated.

 

[Andrew Wiggin]

So how frequently have NFA weapons/devices been used in acts of violence against other persons in circumstances later decided through our legal processes to have been justified self defense?

That's okay, you could just cite a case where ANY scary gun resulted in a conviction.

As I said before, looking for a case as a deciding argument is prime evidence of not understanding the issue:

The argument is that using a scary gun could land a person in jail. This argument cannot be true unless it has happened. Could a scary gun influence a jury in a complicated case? Absolutely. If you hesitate to call police or make a statement without an attorney or tamper with evidence or make any number of other mistakes, you could find yourself in a situation where every little thing matters, including the scariness of your gun.


Two hard facts remain:

STILL no one has been able to point to a case where a person acted legally in home defense but was nevertheless convicted because of their gun.

and


To see a court room you must SURVIVE first.

 

[Theohazard]

That's okay, you could just cite a case where ANY scary gun resulted in a conviction.

STILL no one has been able to point to a case where a person acted legally in home defense but was nevertheless convicted because of their gun.

In your rush to be defensive, it looks like you haven't fully read -- or at least haven't fully understood -- the three posts above yours. Read them again, especially Frank Ettin's post.

 

[Frank Ettin]

The argument is that using a scary gun could land a person in jail. This argument cannot be true unless it has happened....

Two hard facts remain:

STILL no one has been able to point to a case where a person acted legally in home defense but was nevertheless convicted because of their gun....

You have cautioned readers about opinions by people who "do not have a clue." You obviously do not have a clue, and so far two attorneys and one professor of psychology who has studied juror perception have explained why you do not have a clue.

 

[Andrew Wiggin]

Theohazard,

Yeah, I hadn't seen their posts yet. I stand by my statements, though.

In Arizona and other Castle Doctrine states, people just don't often go to trial in home defense cases. Could a scary gun influence a jury? Sure. But to get to trial in the first place, one needs to be involved in a questionable use of force in some states. In other states, even obvious defense shootings go to trial.

There are obviously rational arguments on both sides of this, and your decision will likely be influenced by your location. I don't consider the added risk of driving a red car to be enough to convince me to get a color I don't like (I actually prefer gray) nor am I convinced that the small risk of a negative perception to a jury that I'll probably never see justifies the use of a less effective defense tool.

 

[Glenn E. Meyer]

Of course, any competent defense attorney will have no trouble turning those claims right back around on the prosecutor: “Ladies and gentlemen, my colleague has chosen to insult your intelligence by playing on your emotions and attempting to frighten you with a simple tool. I know that you are intelligent and rational and you are not inclined to be manipulated so easily. You heard the judge’s instructions, and you are fully aware that the only matter at issue in this court is whether my client acted in a legal manner.” Or something to that effect, anyway. I’m certainly no attorney myself.

More importantly, your case has to make it to a court room before you can worry about what the prosecutor will say. For that to happen in most districts, the shooting has to be somewhat questionable. In most jurisdictions the law is very clear that you have a right to defend yourself within your own home. If you shoot someone who broke into your home and you don’t go and make some stupid statement to the police it is unlikely that the state will even pursue charges, let alone secure an indictment.

1st Paragraph - there is clear evidence that a defense lawyer trying to make an excuse for a negative characteristic may in fact enhance the prosecution's argument in the juror's mind.

2nd quoted paragraph - how in the world can you guarantee that a shoot won't be questionable? We have cases where the defendant claims that he or she thought the action was reasonable but then they went to court. When they go to court, the case is definitionally questionable. Then the jury factors (see referenced book) click into the decision process. Telling a jury that the prosecution is trying to manipulate them but you are not. See a problem with this. Do you have any idea of what juries take away from lawyer's statements and judges' instructions? You would be horrified.

To our humble readers - please take advantage of numerous professional resources on jury decisions and self-defense law. It may be reasonable to use X, Y and Z but you need a lawyer who understands the processes Frank, Spats and I discuss. A throwout argument like in the OP is not a sure fire fix to your problem.

Check out the Armed Citizen's Legal Defense Network for instance.

http://armedcitizensnetwork.org/

 

[Andrew Wiggin]

Glenn, remember the context is home defense, not armed personal defense in public. There are certainly some jurisdictions where a person is very likely to see a trial if they offer any resistance whatsoever to a crime, even in their home. Most home defense shootings in the free parts of the country never even make it to trial. The ones that do usually involve actual wrongdoing or grievous mistakes at the very least.

You're right that the aspartame of a fun can influence a jury but a competent attorney can address those concerns. If you find yourself at trial, though, you are likely to be more concerned about the facts that put you in that court room to begin with.

Use a legal weapon and act in a legal manner. Don't ever talk to cops. Train to survive, no matter what to you choose.

 

[zukiphile]

The argument is that using a scary gun could land a person in jail. This argument cannot be true unless it has happened.

However, that isn't the proposition to which you've found opposition here.

The scary gun itself will not land you in jail. After a shooting, you may come into contact with POs, prosecutors and assistant prosecutors, a judge and jurors. The perceptions and judgments of each of them may influence your fate.

Former prosecutor, longtime defense lawyer here.

First of all, I'm not able to see your photo on this machine and thus am commenting in general and not on your specific weapon.

It depends on who catches the case. Some cops are offended by "tactical" weapons, as are some prosecutors and grand jurors. The attitude of the cops and prosecutors involved in reviewing your shooting will certainly be reflected in the treatment that your case receives. Your appearance, the part of town in which you live, your connection to the person who was shot, the weapon that you used, your profession, your employment status, your attitude, and all the information about the person shot - these are all things that will be in the background when the state actors review your case and decide how to handle it. So will the overall political climate of your locale - this will also affect how the grand jury views your case after the shooting.

Your use of a "tactical" gun is not likely to affect a defensive shooting case in which Charles Manson bursts into your five-year-old's birthday party in the middle of the afternoon wielding an RPG and singing "Helter Skelter." But, in my considerable experience working on homicide cases, things are rarely so clear. Like Mas Ayoob advises regarding the use of handloads in defensive weapons, it behooves one to think before adding in another potentially detrimental variable.





I own EBR-type things, but my "house rifle" is a lovely walnut-stocked Navy Arms 92 short rifle levergun . . . a "cowboy gun." Concern over appearances played a part in my selecting that gun for that role, even though I'm in a fairly gun-friendly area and defensive shootings with AK-47s have been no-billed by local grand juries. You may come to a different conclusion, but you are wise to consider this issue in making your determination of what's right for you.

As far as "how to deal with the issue in a hypothetical homicide trial"? No one can answer that, as the relevant variables in play aren't yet before us. You are wise to have the ability to coherently and reasonably explain the need for any additions to your base gear and your rationale for selecting that base gear. You would be wise to be prepared with the contact information for a good criminal defense attorney (how to find this has been discussed here many times) in the event that - God forbid - you would ever need one.

That is a point on which you concur just a few posts up.

Could a scary gun influence a jury in a complicated case? Absolutely. If you hesitate to call police or make a statement without an attorney or tamper with evidence or make any number of other mistakes, you could find yourself in a situation where every little thing matters, including the scariness of your gun.

 

[Andrew Wiggin]

Maybe we're splitting hairs, then.


Everyone has to assess risk for themselves. In my own assessment, the perception of the tool is at pretty much the bottom of the list. I wouldn't use an illegal weapon unless I lived in a place where I simply did not have legal access to an effective weapon. I also wouldn't use something in a legal gray area like a pistol with a Sig brace. Otherwise, my first concern is to choose the most effective tool for the job and train to the extent of my ability. My second concern is to act within the limits of the law.

 

[Moomooboo]

One argument for suppressor is hearing damage based on low med high. Has there been any objective assessment done? Ive fired my m16 with no earplugs and still have good hearing...minus the tinnitus at times. Just wondering what the actual decibel of 9mm or 5.56 going off in a home is and if it is highly likely to caude oermanent hearing damage.

My ear testing facility also told me that if you get to them jn 72 hours they can mostly reverse it. Id just like to see some objective standarda and results on hearing put forth by the OP

 

[Andrew Wiggin]

Wow. I'd never heard that hearing damage could be reversed.

Regardless of the permanent damage, discharging a firearm in a confined space can have a severe temporary impact on your hearing, making it difficult to communicate with your family, 911, and police.

 

[pax]

Every case I've seen of a shooting with a lawfully owned Class III weapon has gone to a Grand Jury. Some of those grand juries have indicted.

However, every time it was provably self-defense, the subsequent Petit jury has also acquitted the shooter. Still, such trials are extremely expensive for the defendant.

Personally, I would take the advice of the foremost expert in legal uses of deadly force, and the thoughts of a PhD who studies jury behavior, over the musings of some dude on the 'net.

pax

 

[Andrew Wiggin]

So affording to that Ayoob quote, it is extremely unlikely that you will be convicted if you act lawfully, even if you use a machine gun. So the argument comes down to how much money you are willing to spend to defend your family.