Update: What is the current general consensus on carrying a modified handgun?

[OldMarksman]

There are lots of qualified "experts" that will offer differing opinions and they all can be valid.

But not necessarily admissible.

That would depend upon the facts, data, and methods used by the expert to arrive at his or her opinion, and to the relevance.

 

[Nathan]

Honestly, the prosecutor will present it as this thing you did to make your tool more deadly and accident prone.

Hopefully your lawyer is well paid enough to show:
1) safe trigger modifications are reasonable and common practice
2) you tested the function after modification and it is safe
3) you trained with the modified trigger and had improved confidence and accuracy that allow you to direct gunfire better under stress.
4) there was no "accident " in this shooting. You assessed, decided, aimed, fired, and helped the victim get medical care by calling 911.

Gun issues come into play when there is a question about did you decide.

 

[Frank Ettin]

There are lots of qualified "experts" that will offer differing opinions and they all can be valid....

What qualified, credible experts will opine that a very light trigger (on the order of 3-3.5 pounds or less) is appropriate in a handgun carried for self defense? Where are they, and who are they?

 

[OldMarksman]

Hopefully your lawyer is well paid enough to show:
1) safe trigger modifications are reasonable and common practice

How would one's attorney "show" that if tests of the gun and expert testimony about them indicate that what was done was not "reasonable"?

2) you tested the function after modification and it is safe

Information concerning your test would be admissible?

3) you trained with the modified trigger and had improved confidence and accuracy that allow you to direct gunfire better under stress.

That might be helpful--or not.

4) there was no "accident " in this shooting. You assessed, decided, aimed, fired, and helped the victim get medical care by calling 911.

A plaintiff contending otherwise would introduce trigger evidence to support his or her case.

Gun issues come into play when there is a question about did you decide.

They can also influence the decision of a jury about what you may or may not have decided.

 

[Loosedhorse]

Information concerning your test would be admissible?

Why would it not be admissible?

-----
Even if we get by admissibility, Nathan, there are additional problems I see:

A) That informing the jury about your testing might require your taking the stand (in a criminal trial) to present that testimony. If you had otherwise not planned to expose yourself to cross-examination (as, for example, George Zimmerman did not; he relied on his pre-trial statements to the police, eye-witness testimony, and devastating cross-examination of the prosecution's witnesses), you would then have to do so, in order to let the jury know about your test. And:

B) That putting your opinion about safety up against the prosecution's or plaintiff's expert's opinion might be unconvincing to a jury.

The fact that you tested the gun after modification and thought it safe might stop a jury from concluding that modifying the trigger was in itself a(criminally) reckless act. However, it might be no help against a civil charge that modifying the trigger as you did was negligent; and no help against the charge that, because of the light trigger, you killed the deceased (or injured the wounded) by accident.

 

[Spats McGee]

Spats, you are obviously an accomplished attorney, and you view and argue from that experience. I am (quite obviously) not; my experience is in tactics and deploying force. Let me add my perspective to your examples, below: . . . .

DT Guy, thank you for your comments. I will address each in turn below.

1. Harry Hiddenholster carries a modified pistol. He had the trigger smoothed and lightened to 2.5#. He had the work done at a nationally-known shop. If Harry has to shoot someone:
(a) the weight of the trigger (being pretty low) may become an issue if someone decides to claim that the shooting was not intentional (a necessary element of an SD claim), but was negligent; and
(b) there's a neutral third party (the nationally-known shop) that can testify about the work done to the pistol without Harry having to take the stand. (He may have to testify anyway, but we lawyers like to keep our options open. Besides, if he shot someone, his credibility may already be an issue.)
(c) I still have to explain why a 2.5# trigger was necessary & why Harry couldn't have shot just as accurately with a 4.5# trigger.

And let's not forget, you'll be starting from a position of a LIVE client who survived the encounter to stand trial.

Fair enough. From a practice perspective, I would need live clients (if I were in private practice). However, those clients have to be able to pay my fees. A client with a $50k/yr job who's facing a $500k jment would have to pay me a whole bunch of money on the front end, which might make him someone else's client.

That, however, isn't really the question. . . . If Harry came to me looking for advice before the shooting, lightening a trigger to 2.5# is not what I'd advise, and here's one of the main reasons: If a threat ends, generally speaking, so does a person's right to shoot. Example: Let's assume that some thug corners Harry in an alley. Harry draws and points his gun. The thug does the hands up, don't shoot. If Harry shoots him after that point, it's no longer SD. If it was intentional, it may well be (at least attempted) murder. If it was not, it may be some kind of negligent tort. In either case, the thug or his family may well argue that it was not an intentional (SD) shooting. Could that also happen with a 5.5# trigger weight? Sure. But I think Harry's odds of successfully defending against such a claim go down markedly when he has actively taken steps to reduce the pull weight on the trigger.

2. Greg Gunderson also carries a modified pistol. His has the same 2.5# trigger as Harry's, a set of death's head grips, and he has removed a safety device for a better trigger. Greg did the work himself.
(a) If Greg shoots someone and shows up in my office and tells me all of the above, my price goes up. He has complicated my job by an exponential measure, for reasons that follow.
(b) By doing the work himself, he has eliminated the possibility that I can pick up the phone, call the shop and have them fax me the records on the work done. If I want reliable, admissible data on the trigger, I have to hire an expert and have him go test the pistol. Then I have to have him prepare a report, turn it over to the other attorney(s), and pay him big $$ to come testify.
(c) By putting the death's head grips on it, Greg has turned his pistol into a giant piece of demonstrative evidence that may well be shown to the jury every time the other side gets up to speak, and there won't be a damn thing I can do about it. This is a jury perception problem, but your lawyer has to deal with it one way or another.
(d) And I still have to deal with that 2.5# trigger.

Frankly, Greg sounds like a nightmare client; but again, a LIVING nightmare client. He's made his own defense harder with the imagery, for sure.

No doubt. Harry created "hard" (technical) difficulties in his defense. Greg has created those hard difficulties and has also created some "soft" (i.e. jury perception) problems to throw into the mix. Again, Greg would have to throw a lot of money at me on the front end to get me to take his case.

3. Finally, Sally Semi. She bought a gun with a trigger that she liked, and it came with night sights from the factory. It's bland. It's boring. It's reliable. Sally likes her gun. Sally's lawyer likes her gun, too.

Sadly, Sally was presented with a difficult head shot on an aggressor abducting her 5 year old, and Sally had to try and take a shot at a moving, bobbing target at 20+ yards. The 7# trigger, with grit and creep, was unmanageable, and she sadly struck and killed her own child.

From a legal perspective, however, Sally will not fact criminal charges or a civil suit, simplifying her legal needs.

Now, see . . . You went changing the facts on this one. No fair. I said that Sally had chosen a pistol with a trigger that she liked and you changed it to a 7#, gritty, creepy, unmanageable one. We have a saying in the legal community around here: "You're entitled to your own opinion, but you're not entitled to your own facts." When you go changing the facts, the outcome changes.

Yes, hyperbolic, but to a purpose; if you find a trigger you can shoot better than a stock trigger (I have) you increase your chances of survival, and of not injuring an innocent, by using it. Some would argue that not doing everything within your power to increase the accuracy with which you can deploy a defensive sidearm is nearly negligent, although, again, I am not an attorney.


Larry

I'm not suggesting that anyone should carry a pistol with a gritty 10# trigger. That said, and given your stated experience above (tactics and force deployment), I'm sure that you'd agree that a static (one-way) range is quite a bit different from a violent encounter. The question then becomes a weighing of factors and what I call "marginal advantages" (though I'll admit that might not be the correct term).

If I shoot better on a static range, does that necessarily translate into shooting better while under attack?
If so, does that better shooting necessarily translate into something I can successfully argue to a jury?
Is there enough of an advantage from one trigger weight to another to make it worthwhile? (For example, the change in "shootability" from 10# to 5# may well make the smithing work worthwhile, even in light of the potential increased legal complications. However, is there really enough advantage between 5# and 2# to warrant both the smithing costs and the potential legal complications?)


When you start getting off into the mechanics of actually getting that information in front of a jury, then you start seeing rapid increases in complexity and cost on the legal side.

 

[OldMarksman]

Why would it [Information concerning your test would be admissible] not be admissible?

Reason number one: the results of a test performed by one of the parties in litigation would not be considered independent, objective, or verifiable.

Reason number two: the qualifications of the person or persons who performed the tests would have to be established.

Reason number three: whether the modification was "safe" is not the question , and the finding would not be relevant.

 

[Loosedhorse]

the results of a test performed by one of the parties in litigation would not be considered independent, objective, or verifiable.

No testimony by either party in a litigation (nor by any of their friends, relatives, current employees, etc.) should be considered independent and objective. Not sure that their testimony is therefore inadmissible.

As to whether or not it's verifiable, that depends: did he videotape it? Write about it to someone (letter or email discoverable)? Test it with a witness watching?

I can understand uncorroborated testimony lacking credibility...but inadmissible?

the qualifications of the person or persons who performed the tests would have to be established.

Only if they are testifying as an expert; not if they are testifying as to what they themselves did, or about their own state of mind.

whether the modification was "safe" is not the question

Why not?

the finding would not be relevant.

Why not?

Not sure what you mean by "finding". "Findings" are usually done by the court (judge) or the jury. A defendant's testimony that he believed he had made the pistol unsafe (but used it anyway) would seem to have clear relevance; if so, his testimony that he believed his pistol was safe after modification (and his reasons for that belief) would have similar relevance.

Again, thanks in advance.

 

[Lohman446]

Ask a lawyer a separate question: if you are the one that needs an expert opinion for an affirmative defense how much does it hurt you beyond the cost? Juries get bored by experts who disagree with one another and muddy the waters. In a self defense case I want it to be clear: I shot because I was in imminent danger of severe bodily harm, to prevent kidnapping, or to prevent rape. I did not want to shoot and I only shot to stop the attack (I prefer for moral reasons my attacker survives). I was using ammunition in use by multiple police departments OR if I am carrying my 10MM my primary concern was four legged in nature and I only used the firearm at hand as a last resort. I worry frankly about the legal ramifications of the 10MM (stock) and only carry it around the house (its rural) or hiking.

 

[Nathan]

This is where the whole thing becomes challenging. If the contention is that the defendant is negligent in his modifying the trigger. You have to prove that negligence.

Talking pull weight. . . .You can get opinions that x.xxlb triggers are unsafe for carry. Even some "expert". Still, there is no data or fact that can prove this unsafe. Any "expert" discussing pull weight is sharing opinion based on their narrow view of the general public. So you would have to produce an "expert" to the contrary or just make theirs look like an idiot. The defendant has on their side that there are millions of dollars spent annually on the triggers of working guns. Could probably push that by showing how average folks with heavy triggers shoot worse than with light triggers.(that would be factual data??)

After the shooting, the gun is available for your paid expert to review the gun and complete a function check. That is how you will prove your gun safe. Your expert will test it. You could pay ahead of time to have it inspected and that would be good. Not sure what kind of testimony you will get out of that person or if it is reasonable and customary to expect you do this. Passing a properly executed function check will show you pulled the trigger.

Spat's, I love your input on these. You are a great resource. Please go into more detail about the 3 phases of a lawyer. Phase 1: What advice a lawyer offers before you do something? Phase 2: How a lawyer helps you do something that you will be able to defend? Phase 3: How a lawyer is paid to and will defend ANYTHING a client does to the fullest extent of the clients money and lawyers profitability.

My point is clients do things. Lawyers defend them. Depending on the phase, gets you different advice that you may use or not.

Now we are talking phase 1. Phase 1 always has lots of don't do anything different than some common person's(think undereducated) wisdom.

 

[Loosedhorse]

You have to prove that negligence.

Yes, the plaintiff will. To the standard of "more likely than not"--preponderance of the evidence. 50.00001%

Perhaps it's better not to open the door to that suit at all, by having a below-industry-standards trigger weight? Saves you the risk of being found responsible for lots of damages, and the cost of attempting to defend yourself from suit. (Or, if you figure you'll be sued no matter what: perhaps it's better not to open the door to MORE risk and MORE cost?)

The best time to prepare for your self-defense is now, before any attack. Same for your legal defense.

I did not want to shoot and I only shot to stop the attack

Yes. The attack that I believed I could not safely retreat from, and that I believed would otherwise cause me grave injury or death.

I think that sentiment, engraved on your heart as it were, is as important to your self-defense as to your legal defense.

(FWIW, I think the 10mm is great; and highly defensible, depending on your ability to articulate--if called upon to do so--why you chose it.)

 

[Lohman446]

I hope, should I ever need to use deadly force, my lawyers efforts are to make certain the situation is so clearly understood that the prosecuting attorney never brings charges.

 

[OldMarksman]

If the contention is that the defendant is negligent in his modifying the trigger. You have to prove that negligence.

In many cases, defendants have decided to settle out of court rather than risk a jury-determined award.

If a plaintiff does have to prove the case, the standard of proof is a preponderance of the evidence--that it at least somewhat more likely that the trigger pull modification contributed to the loss than that it did not.

Talking pull weight. . . .You can get opinions that x.xxlb triggers are unsafe for carry. Even some "expert". Still, there is no data or fact that can prove this unsafe.

There are all kinds of data that can persuade the triers of fact that light trigger pulls may have contributed to unintentional shootings. It happens.

Any "expert" discussing pull weight is sharing opinion based on their narrow view of the general public.

Along with verifiable data concerning the physiological effects of stress on fine motor skills.

Equally importantly, commercial firearms that are not intended for competition are equipped with triggers that have at least a certain pull weight for the particular model.

When one departs from the standard by using, for defensive carry purposes, a trigger with lighter pull than that with which the gun was originally sold, one puts himself or herself at risk. Competition is one thing; defensive carry is another.

So you would have to produce an "expert" to the contrary...

Good luck with that.

...or just make theirs look like an idiot.

How would one go about that?

It is likely that an expert for the prosecution or for the plaintiff is extremely adept at testifying and at handling cross examination, and is extremely knowledgeable when it comes to issues involving the design and use of firearms.

An expert for the defense, if one could find one willing to testify, would be hard-pressed to persuade the triers of fact that a modification that resulted in a lighter pull weight did not potentially contribute to the risk of an unintentional discharge.

The defendant has on their side that there are millions of dollars spent annually on the triggers of working guns.

How would that help the defendant?

If what one wants is a smoother trigger, there is likely no material risk there. If one wants to lighten the pull weight for competition, fine--just be sure to keep the gun pointed down range. But if the pull weight of a defensive firearm is heavier than the shooter prefers, either make sure that the modification involves replacement by another stock trigger intended for defensive carry, or choose another firearm.

After the shooting, the gun is available for your paid expert to review the gun and complete a function check. That is how you will prove your gun safe. Your expert will test it. You could pay ahead of time to have it inspected and that would be good. Not sure what kind of testimony you will get out of that person or if it is reasonable and customary to expect you do this. Passing a properly executed function check will show you pulled the trigger.

None of that would be helpful.

That the gun goes off when the trigger is pressed is not something that the defense would need to prove.

Let's review the bidding:

In a civil trial, the issue is two-fold: (1) whether the shooter, acting under stress, may have fired a shot that he or she did not intend to fire; and (2) whether it is likely that the use of a trigger with a lighter pull weight than that with which the manufacturer had equipped the firearm contributed to the event.

In a criminal negligence trial the issues are the same, but the burden of proof is much higher.

There is another potential issue in a criminal trial: evidence that the shooter lightened the trigger pull weight can be taken as evidence of a predisposition to violence.

I had a carry firearm modified some time ago. Two things were done: the trigger was smoothed, but not lightened; and the hammer on the revolver was bobbed, both to reduce the risk of snags and to eliminate any possibility of an argument that I had used the gun in single action mode and had fired unintentionally.

As Loosedhorse points out all of the risks we have been discussing here are avoidable.

 

[Aguila Blanca]

This is where the whole thing becomes challenging. If the contention is that the defendant is negligent in his modifying the trigger. You have to prove that negligence.

Who is "you"?

According to any number of articles I've read, the goal is to not give a prosecuting attorney anything that he can use against you. If you have been involved in a self-defense shooting that was in any way sufficiently questionable that you have been arrested, charged, and are on trial, expect the prosecutor to use anything he can to portray you in a bad light to the jury. He doesn't have to prove that your home-brewed trigger job was negligent. All he has to do is say it -- he can put on the stand a police firearms "expert" who will testify that he tested the trigger on your Megablaster .427 and that it was set to fire at 3.27 pounds (as an average of ten pulls). Then he'll trot out some other expert who will testify that a trigger pull of less than 4-1/2 pounds is too light to be safe when carried for self defense. The prosecutor will then tell the jury that you intentionally set your gun up with a "hair trigger" to make it easier for you to pump more bullets into your victim in less time.

Now YOUR lawyer has to refute that ...

After the shooting, the gun is available for your paid expert to review the gun and complete a function check. That is how you will prove your gun safe. Your expert will test it.

How is your expert going to test your gun when the gun has been seized by the police as evidence?

 

[OldMarksman]

According to any number of articles I've read, the goal is to not give a prosecuting attorney anything that he can use against you. If you have been involved in a self-defense shooting that was in any way sufficiently questionable that you have been arrested, charged, and are on trial, expect the prosecutor to use anything he can to portray you in a bad light to the jury. He doesn't have to prove that your home-brewed trigger job was negligent. All he has to do is say it -- he can put on the stand a police firearms "expert" who will testify that he tested the trigger on your Megablaster .427 and that it was set to fire at 3.27 pounds (as an average of ten pulls). Then he'll trot out some other expert who will testify that a trigger pull of less than 4-1/2 pounds is too light to be safe when carried for self defense. The prosecutor will then tell the jury that you intentionally set your gun up with a "hair trigger" to make it easier for you to pump more bullets into your victim in less time.

Now YOUR lawyer has to refute that ...

That's a pretty good summation of one part of the spectrum here.

I do not know this, but I suspect that the greater risk probably resides in the civil arena. One big reason is the lower standard of proof.

 

[Snyper]

You used the word "only." Have you priced expert witnesses lately? Do you know what it takes to get a legally-admissible expert opinion, either in terms of process or cost? And if you don't know about the process, you do realize you'll have to pay your lawyer to go about the work of finding you an expert, right? Your buddy Sam down at the LGS won't cut it.

If that's what it takes to mount a defense that's what one does.

If it was a good shoot it's all irrelevant, and this is all speculation anyway, so my fantasy scenario is as valid as anyone else's.

If a 3 pound trigger is acceptable in a Colt 1911 it should also be acceptable in a Glock.

We can "what if" anything to death, but it serves no real purpose.

Maybe someone can show a few cases where a trigger modification actually affected the outcome of a defensive shooting trial.

 

[Snyper]

Frank Ettin:
What qualified, credible experts will opine that a very light trigger (on the order of 3-3.5 pounds or less) is appropriate in a handgun carried for self defense? Where are they, and who are they?

I don't know of anyone who ever really needed one, and I bet you don't either.
You just picked some arbitrary number and decided it's the only correct answer.

 

[Spats McGee]

You used the word "only." Have you priced expert witnesses lately? Do you know what it takes to get a legally-admissible expert opinion, either in terms of process or cost? And if you don't know about the process, you do realize you'll have to pay your lawyer to go about the work of finding you an expert, right? Your buddy Sam down at the LGS won't cut it.

If that's what it takes to mount a defense that's what one does.

Perhaps you have an extra $20K laying around to hire an expert. I do not, but even if I did, I'd rather hang onto my hard-earned cash.

If it was a good shoot it's all irrelevant, and this is all speculation anyway, so my fantasy scenario is as valid as anyone else's.

No, it's not. My reasoning is based on a law license and almost 15 years as a practicing attorney.

You've either missed or ignored the whole fact that gun modifications can be used in the determination of whether it was "a good shoot."

If a 3 pound trigger is acceptable in a Colt 1911 it should also be acceptable in a Glock.

I don't think anyone claimed otherwise.

....Maybe someone can show a few cases where a trigger modification actually affected the outcome of a defensive shooting trial

The rules of evidence are not dependent on whether the shooting was defensive or negligent.

With that said, cases in which a "hair trigger" comes up in a Westlaw search:

• Reardon v. Commonwealth, 2017 WL 636416, at *1 (Ky. Feb. 16, 2017)
• McGowan v. State, 240 So.2d 512 (Fl. 1970)
• Garcia v. State, 2014 WL 1022348
• People v. Wise, 46 N.Y.2d 321 (1978)
• People v. Ellis, 93 Ill.App.3d 79 (1981)
• Jackson v. State, 2008 WL 2571835
• State v. Smith, 126 Mont. 124 (1952)
• Chinn v. State, 958 So.2d 1223 (Miss. 2007)
• Pearson v. State, 2007 WL 841280
• State v. Higgins, 2006 WL 2828567
• Wallace v. Sexton, 2014 WL 2782009
• Benjamin v. State, 2013 WL 6703490

That's just out of the first 50 hits.

 

[Spats McGee]

Spat's, I love your input on these. You are a great resource. Please go into more detail about the 3 phases of a lawyer. Phase 1: What advice a lawyer offers before you do something? Phase 2: How a lawyer helps you do something that you will be able to defend? Phase 3: How a lawyer is paid to and will defend ANYTHING a client does to the fullest extent of the clients money and lawyers profitability.

Thank you.

To greatly oversimplify these "3 phases:"
Phase 1: Lawyer tells client, "Don't step in the poop."
Phase 2: Lawyer tells client, "If you've just got to step in the poop, wear your ratty shoes."
Phase 3: Lawyer tells client, "Give me your good shoes. I'll go clean the poop off of 'em."

As regards to phase 3 and defending "anything," .... Every lawyer has certain boundaries, certain cases which he or she will not take. Sometimes it's a question of knowledge in the practice area, and sometimes it's a question of the client's actions being so repugnant that the lawyer just cannot properly defend the client. Assuming that the client's actions do not fall into one of those two categories, though, that's how lawyers make a living. They accept fees to counsel and advocate.

 

[OldMarksman]

If it was a good shoot it's all irrelevant, ....

It may be very relevant to those who will decide whether or not it was a "good shoot".

....and this is all speculation anyway,....

No. The number of suits, settlements, trial, and carnies takes this far beyond the realm of speculation.

You just picked some arbitrary number and decided it's the only correct answer.

No, he didn't.