The Firing Line Forums

Go Back   The Firing Line Forums > Hogan's Alley > Handguns: General Handgun Forum

Reply
 
Thread Tools
Old May 2, 2012, 09:45 AM   #76
Spats McGee
Staff
 
Join Date: July 28, 2010
Location: Arkansas
Posts: 5,011
Custom Handguns: One lawyer's perspective

First, my usual caveat, which I probably shamelessly stole from a post by another attorney on this board.

Caveat: I'm a lawyer, but I'm not your lawyer. What I'm about to say is not legal advice. It is merely commentary, but I've spent ~9 years in litigation, so I'm not totally unfamiliar with the processes involved.

Not to long ago, I read a quote that said, "if there's a fair fight, then I was unprepared." I don't recall who wrote it, but it wasn't me, and I like it. That is how I approach the issue of both SD and the legal aftermath. If it's a fair fight, I was unprepared.

If I remember correctly, this whole thread started with the question of whether using a custom gun for SD is as bad as handloads. For me, there's no simple "yes or no" answer to that. The issue is more one of risk management.

In our daily lives, each and every one of us weighs risks and rewards, often without thinking much about it. Example: Do I go to work each day? Yes, because the risk of losing my job outweighs the reward of staying home and throwing the Frisbee with my dog. By the same token, everyone who carries a pistol for SD has made a similar decision: The risk of being caught unarmed outweighs the reward of having a slightly easier time arranging our clothing to accomodate concealed carry (for example). Once this decision is made, then several questions follow:
1) What will I carry?
2) How will I carry it?
3) What will I put in it?

Under the theory of the "fair fight" laid out above, as I answer these questions, two of my goals is to make it as hard as humanly possible for the prosecution or the potential plaintiff's civil attorney to win; and place as many tools as I can at my attorney's disposal.

Down in L&CR, I created an archive thread as a repository for all of the threads that we see on SD & handloads. It's stickied at the top of the page, and just about every argument that can be made for or against handloads has been made in one or more of the threads linked there. Accordingly, I'm not going to go on ad nauseum (sp?) on handloads, at least not this time. Just a couple of quick comments.

First, as has been pointed out:
A) It is not the shooter that decides if the shoot was justified or not; and
B) If you're in court, someone doesn't think it was*.

*(In some cases, you may be faced simply with a plaintiff's attorney trying to shake out a settlement. It's not exactly the glamorous side of the legal profession, but it would be disingenuous of me to claim that it doesn't happen.)

Second, the risks posed by handloads are qualitatively different from those posed by custom guns. It's a question of "what kind of risk am I assuming by using them," not one of "how much risk am I assuming by using them." The latter is a quantitative assessment. The handload risk is an evidentiary one. By using handloads, you run the risk that certain evidence beneficial to the shooter may be excluded. The Daniel Bias case is an example. Now, before someone jumps in and says, "that's not a SD shooting case," I'll concede that. It's not. That's not relevant, though, because the rules of evidence are the same, regardless of whether the case is a criminal trial, an SD shooting, a quiet title action or a divorce. What's more, the Bias rulings (excluding the GSR evidence from the defendant's handloads) are consistent with my knowledge of the rules of evidence.

Custom guns, on the other hand, are a different beast in the courtroom. From an evidentiary perspective, and barring something relatively rare, such as having the shooter's pistol explode, the gun is not destroyed in the shooting. That means that it's available for testing both by the prosecution and defense. So the gun, custom or stock, does not suffer from the same evidentiary infirmities that handloads do.

The other risks involved with custom guns tend to be what I think of as "perception risks," and involve the prosecutor's, judge's and jury's perceptions. They will be used by the finder of fact both to determine what kind of person the shooter is, and his credibility. I cannot control their past experiences and prejudices, but I can control what is available for them to see.

The risks involved with a custom gun vary with the types of modifications made. Better feeding by polishing the feed ramp? That's a "function modification," and it's not too hard to make a jury understand how that works. Better sights? Same thing. Engraving "watch for flash" right below the bore? Or "kill them all and let God sort them out?" Those things add nothing in terms of functionality, and are easily used to give a jury the impression that the shooter was out looking for a reason to kill someone. Triggers are slightly trickier, in that smoothing out a trigger can be justified on function. A competent lawyer can get a jury to understand the shooter's position that he had his trigger smoothed out because: (a) he's a better shooter with a smoother trigger; thus (b) reducing the risk of missing his target; and thus (c) endangering bystanders with the stray round. A lighter trigger, on the other hand, is only justifiable to a point. The shooter can claim that he is a better shooter with a lighter trigger, the same as outlined for the smoother trigger, but (and this is a big "but") at some point, the trigger can be so light that the prosecutor or the plaintiff's civil lawyer may well claim that the shooter just pointed the gun at the target and accidentally shot the target. To say that such a claim cannot happen is folly. There are simply too many variables involved (evidence, state law, castle or SYG laws, and of course, the facts of the shooting) to make such a pronouncement.

For me, it's not a matter of fearing the lawyers or the lawsuits. As much time as I spend in courts and around lawyers, I'm not afraid of them. I do, however, respect how much financial damage one could do if I were to be successfully sued over an SD shooting. For that matter, even if I were to be unsuccessfully sued over an SD shooting, my own legal bills could far outweigh what I can afford. So I don't want a fair fight. If there must be a legal fight of any sort, I want it quick, I want it cheap, and I want to win.
__________________
A gunfight is not the time to learn new skills.

If you ever have a real need for more than a couple of magazines, your problem is not a shortage of magazines. It's a shortage of people on your side of the argument. -- Art Eatman
Spats McGee is offline  
Old May 2, 2012, 12:48 PM   #77
temmi
Senior Member
 
Join Date: June 13, 2006
Location: Texas
Posts: 531
"Custom Handgun just as bad as Handloads for protection? "


Not even close

Snake
temmi is offline  
Old May 2, 2012, 01:35 PM   #78
Glenn E. Meyer
Staff
 
Join Date: November 17, 2000
Posts: 15,611
As far as cases - you may recall that Chris Cox in the American Rifleman mentions a self-defense claim that the NRA is involved in. The defendant was a competitive shooter and the DA suggested that this indicated premeditation. The defendant was convicted and sentenced to life.

An appeal seems in the works. However, the decisions are based on all the factors. We know appearance issues influence such. No reason to add to such unnecessarily and it seems very important that a lawyer be deeply cognizant of such issues.

A friend of mine is an expert witness and makes quite a bit of money testifying. Even if you win a good shoot, the cost of the witness alone will exceed most custom handguns, unless you are carrying the USS Missouri.

PS - for the crowd that thinks what you say on the Internet won't interfer with your good shoot - check out how they dug up some real crap that George Zimmerman posted on myspace back in 2005 or 2006 ish, if I heard correctly. DON'T DISCUSS THAT CASE HERE in specifics. I was just pointed out how a good shoot may not be so good and what happens when they are after you.
__________________
NRA, TSRA, IDPA, NTI, Polite Soc.
http://www.teddytactical.com/archive...05_Feature.htm
Being an Academic Shooter
http://www.teddytactical.com/archive...11_Feature.htm
Being an Active Shooter
Glenn E. Meyer is offline  
Old May 2, 2012, 10:38 PM   #79
JohnKSa
Staff
 
Join Date: February 12, 2001
Location: DFW Area
Posts: 18,259
Quote:
So, reality in court seems to lie in who has the better paid testimony/representation; as opposed to the actual issues/truth.
If there are issues then you're going to need experts and good ones to make those issues go away.
Quote:
An overzealous D.A. can make an issue out of anything.
So why do we have people arguing that if a shoot is justified, then the modifications to the gun won't be an issue.

If an overzealous DA can make an issue out of anything then he can certainly make an issue out of a modified gun!

The point is that you can hand him issues on a silver platter to make his job easier (and your case more complicated and expensive) or you can make him work hard to dig up issues. It's not hard to see which option works out better for you, and it's not hard to see that the harder he has to work to invent issues, the harder it will be to sell them to a jury.

By the way, I don't have any way of comparing the relative legal risks of handloaded ammunition and customized guns so I'm not even attempting to answer the original question. I'm just responding to the easily disprovable claims that modified guns can't ever and/or haven't ever been a legal issue in court.
__________________
Did you know that there is a TEXAS State Rifle Association?
JohnKSa is offline  
Old May 3, 2012, 01:45 AM   #80
AZAK
Senior Member
 
Join Date: May 15, 2008
Location: the object towards which the action of the sea is directed
Posts: 2,103
Quote:
By the way, I don't have any way of comparing the relative legal risks of handloaded ammunition and customized guns so I'm not even attempting to answer the original question. I'm just responding to the easily disprovable claims that modified guns can't ever and/or haven't ever been a legal issue in court.
So, it is all rather moot then; unless we are discussing theoretically.
Original question is not quantifiable.
Modified guns can be an issue, again not realistically quantifiable.
However, the norm would suggest that these have not been or are not currently prevalent issues; but probably a very small minority of outliers.

And yes, I personally don't really want to be the "crash test dummy" in court, or for a direct meteorite strike for that matter either, yet at the same time this is far down on my list of concerns. The squirrel that is attempting to make a home in my roof, where some of my home wiring lies, is a bigger threat to me and my personal well being at the moment.
YMMV
__________________
The lowest paid college major/degree in this country after graduation...
Elementary Education.

Now, go figure...
AZAK is offline  
Old May 3, 2012, 03:26 AM   #81
357 Terms
Senior Member
 
Join Date: October 8, 2010
Location: Indiana
Posts: 201
Quote:
What's more, the Bias rulings (excluding the GSR evidence from the defendant's handloads) are consistent with my knowledge of the rules of evidence
Bias's handloads were allowed in court as evidence.

http://www.thehighroad.org/showthrea...ight=why+jhp%3
You should read this thread, has some info you don't seem to be aware of.

Quote:
So why do we have people arguing that if a shoot is justified, then the modifications to the gun won't be an issue.
Well, because so far we don't know of a single "good shoot" that a person was involved in that a modified gun has been an issue.
You can piont to cases involving the police all you want (mostly lawyers seeking big paydays by suing the dept.)
I personally don't do trigger jobs on my carry guns, thats only because I worry more about functional problems more than legal one's.
357 Terms is offline  
Old May 3, 2012, 10:28 AM   #82
Spats McGee
Staff
 
Join Date: July 28, 2010
Location: Arkansas
Posts: 5,011
I haven't had time to review that thread in depth, but I will try to do so by day's end. It does appear to contain information of which I was unaware. Thanks for the link, as I'm always interested in learning more about this type of legal issue.

However, based on what I have read about the Bias case, which has been basically everything I have been able to find, it is my understanding that the GSR evidence from testing Bias' handloads was excluded, at least from the first trial. From the link that you posted, in Mas Ayoob's January 6, 2012, 07:07 PM post, he writes:
Quote:
Originally Posted by Mas Ayoob
The inescapable elephant in the room is, we have a case on point -- NJ v. Bias -- in which testing of the loads the handloader said were in the gun was not accepted.
Perhaps I should have phrased it thus: Exclusion of evidence based on testing of a shooter's handloads is entirely consistent with my knowledge of the rules and principles of evidence.

That, however, was not the subject of this thread. Handloads and custom guns are both potentially problematic for the shooter, but potentally problematic in different ways.
__________________
A gunfight is not the time to learn new skills.

If you ever have a real need for more than a couple of magazines, your problem is not a shortage of magazines. It's a shortage of people on your side of the argument. -- Art Eatman
Spats McGee is offline  
Old May 3, 2012, 12:22 PM   #83
Frank Ettin
Staff
 
Join Date: November 23, 2005
Location: California - San Francisco
Posts: 6,641
Quote:
Originally Posted by 357 Terms
...Bias's handloads were allowed in court as evidence.

http://www.thehighroad.org/showthrea...ight=why+jhp%3
You should read this thread, has some info you don't seem to be aware of...
Spats,

Read the thread by all means. A lot of the information offered about what went on in various of the Bias trials came from a series of local newspaper articles. It turns out that it was a very extensive series of articles, only some of which were cited in the thread. At the time, I looked into getting access to all the articles, but that would have required a paid subscription to the newspaper.

Of course, as usual with newspaper accounts, a lot gets left out, and the possible technical importance of some omitted details might not have been recognized by the reporter. For example, I seem to recall that one article mentioned Bias' handloads coming up in court, but it wasn't clear whether or not the jury was present at the time. You and I understand that often questions concerning whether or not offered evidence would be admitted are discussed in court with the jury absent.
__________________
"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper
Frank Ettin is offline  
Old May 3, 2012, 10:14 PM   #84
JohnKSa
Staff
 
Join Date: February 12, 2001
Location: DFW Area
Posts: 18,259
Quote:
Well, because so far we don't know of a single "good shoot" that a person was involved in that a modified gun has been an issue.
First of all, what happened to "An overzealous D.A. can make an issue out of anything."??

Are you now saying that an overzealous D.A. can only make an issue out of anything if the shoot isn't a good shoot?

As far as your comment about what we don't know about, that's a logical fallacy called begging the question. What you're saying is that if the modified gun is an issue it's only because the shoot wasn't a good shoot and therefore the modified gun isn't the real issue. In short, you're hiding the assumption that a modified gun can't be a real issue in the statement that you're trying to use as proof that a modified gun can't be a real issue.
Quote:
However, the norm would suggest that these have not been or are not currently prevalent issues; but probably a very small minority of outliers.
What makes me think it's not really a very small minority is how fast the effects of a case like the ones I pointed out rippled through the law-enforcement community. It's hard to believe that an issue that qualifies as a "very small minority" and not "currently prevalent" would have such a sweeping and immediate effect.

I'm also interested to know what the lawyers say about how often a civil settlement involves an order to both sides to keep their mouths shut about how the judgement worked out. I suspect that this is a big reason that it's hard to get information on the outcome of civil cases.
__________________
Did you know that there is a TEXAS State Rifle Association?
JohnKSa is offline  
Old May 4, 2012, 03:26 AM   #85
357 Terms
Senior Member
 
Join Date: October 8, 2010
Location: Indiana
Posts: 201
Quote:
First of all, what happened to "An overzealous D.A. can make an issue out of anything."??
LOL!

Well first of all it is poking fun at all of this wild speculation.

If a DA had a defendant on the stand and asked him why he had a crewcut, then proceeded to try to portray him as a military wannabe, I can assume that you would post on a forum that crewcuts MAY be an isssue at trial if you are involved in a shooting.
357 Terms is offline  
Old May 4, 2012, 08:46 AM   #86
Frank Ettin
Staff
 
Join Date: November 23, 2005
Location: California - San Francisco
Posts: 6,641
Quote:
Originally Posted by 357 Terms
If a DA had a defendant on the stand and asked him why he had a crewcut, then proceeded to try to portray him as a military wannabe,...
First, the lawyers here have some understanding or what one could make an issue of for a jury, and what one could probably not. We also have some understanding of how, and under what circumstance, we might have reason to do so.

Second, it's not always necessary for a lawyer to actually point something out to a jury or base on argument on that. For example, the jury sees the defendant, the way he's dressed and groomed and his demeanor. The jury will form opinions about the defendant from what they observe. So a good defense lawyer will give his client some suggestions about how he should appear for court.
__________________
"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper
Frank Ettin is offline  
Old May 4, 2012, 10:03 AM   #87
Glenn E. Meyer
Staff
 
Join Date: November 17, 2000
Posts: 15,611
Crewcuts and appearance. Please before you expound - go look at the both the jury simulation literature and the legal literature.

You will see quite a bit about how appearances matter to a jury. Ignorance and snark is cute on the Internet and stupid in real life. Appearance influences don't make it into case law and searches for the most part but they do influence simulations. For example, there are studies about how eyeglasses can be to your benefit.

Now to crew cuts and military appearance. A few years ago CourtTV (as it was called in those days) had a trial of a police officer who shot a EDP who was waving a rake (IIRC). In pictures of him at the time, he had a crew or whatever you call that with that pancake of hair on your otherwise shaved head. Glaring into the camera into his official police phote.

Guess what he wore when he testifed. He had a three piece. His hair was grown up and styled in a business like manner. He took out reading glasses when he examined the exhibits.

Now why did he do that?
__________________
NRA, TSRA, IDPA, NTI, Polite Soc.
http://www.teddytactical.com/archive...05_Feature.htm
Being an Academic Shooter
http://www.teddytactical.com/archive...11_Feature.htm
Being an Active Shooter
Glenn E. Meyer is offline  
Old May 4, 2012, 10:10 AM   #88
Spats McGee
Staff
 
Join Date: July 28, 2010
Location: Arkansas
Posts: 5,011
I don't speak for any other lawyers, but I have always taken an active hand in "appearance management" for my clients. In private practice, I made sure that my clients understood just how much appearance matters, not only to the jury, but to the judge.

There's a story that I read on the listserv (sp?) for the Arkansas Association of Criminal Defense Lawyers some years ago. One of the listserv members had a client who was charged with possession of a controlled substance with intent to deliver. The client showed up for trial wearing a T-shirt . . . with a big ol' pot leaf on the front, and there was a dollar sign on top of the leaf. Wanna guess how that trial turned out?

So that's my off-topic, but funny story for the day . . . at least I thought it was funny.
__________________
A gunfight is not the time to learn new skills.

If you ever have a real need for more than a couple of magazines, your problem is not a shortage of magazines. It's a shortage of people on your side of the argument. -- Art Eatman
Spats McGee is offline  
Old May 4, 2012, 10:51 AM   #89
OldMarksman
Senior Member
 
Join Date: June 8, 2008
Posts: 1,950
Quote:
Posted by Lost Sheep: In Criminal cases, to even get near the question of "Did the shooter use handloads and what does that say about his state of mind or intentions?" you have to get past the question of "Was deadly force justified or not?"
You have it completely backwards. To get to the question of "was deadly force justified or not", you have to put together all of what evidence can be produced after the fact.

Each element of the evidence will be evaluated for consistency. The defendant's testimony may be supported by the other pieces of evidence, or it may not. And indications of his state of mind or intentions are likely to play a very big part in the ultimate determination.

Regarding custom handguns, I would be a lot less concerned about their weight in determining state of mind than I would about the use of guns that may give jurors a poor impression of the the shooter--see this for a good discussion of the subject. And no, you do not need to look for actual cases--lawyers employ the results of jury simulation all the time, and you can rely on it.

On the other had, if you have disabled a safety (any safety) or modified the trigger, you do have to worry about challenges to your claim that your shots were not only justified but were in fact intentional. A plaintiff;s lawyer may see a pot of gold at the end of the proverbial unintentional discharge rainbow.
OldMarksman is offline  
Old May 4, 2012, 11:06 AM   #90
Glenn E. Meyer
Staff
 
Join Date: November 17, 2000
Posts: 15,611
Now, who wrote that silly article!

Funny, the reactions you get. I presented this to my local gun club. One guy had a big hissy fit and thought I was trying to ban ARs and tell him to get rid of his. A Fed LEO and a safety expert from a large corporation tried to explain the point but he just kept stewing and fuming. Same thing happened on some forum. Some guy claimed it was BS and an evil plot by moi and Mas.

When I gave versions at the Polite Society and NTI - those experts seemed to get the point about appearances.
__________________
NRA, TSRA, IDPA, NTI, Polite Soc.
http://www.teddytactical.com/archive...05_Feature.htm
Being an Academic Shooter
http://www.teddytactical.com/archive...11_Feature.htm
Being an Active Shooter
Glenn E. Meyer is offline  
Old May 4, 2012, 11:43 AM   #91
Frank Ettin
Staff
 
Join Date: November 23, 2005
Location: California - San Francisco
Posts: 6,641
Quote:
Originally Posted by OldMarksman
...Regarding custom handguns, I would be a lot less concerned about their weight in determining state of mind than I would about the use of guns that may give jurors a poor impression of the the shooter--see this for a good discussion of the subject....
And some of these negative impressions won't require the prosecutor make any comment. They will be apparent to the jury.

So the gun used will be put into evidence. If it was an AR, the jury will see that it's what they've been conditioned to perceive as an "assault weapon" or an "evil black rifle", and some members of the jury will draw inferences about the defendant from that.

Or perhaps the handgun used has Punisher grips. Now some members of the jury won't be able to help wondering why the defendant wanted to embellish his gun with the logo of a comic-book vigilante.
__________________
"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper
Frank Ettin is offline  
Old May 4, 2012, 01:07 PM   #92
Glenn E. Meyer
Staff
 
Join Date: November 17, 2000
Posts: 15,611
In the DC Sniper trial - the DA started by slowing assembling the rifle used.

Why put on that show?
__________________
NRA, TSRA, IDPA, NTI, Polite Soc.
http://www.teddytactical.com/archive...05_Feature.htm
Being an Academic Shooter
http://www.teddytactical.com/archive...11_Feature.htm
Being an Active Shooter
Glenn E. Meyer is offline  
Reply

Thread Tools

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off

Forum Jump


All times are GMT -5. The time now is 04:08 PM.


Powered by vBulletin® Version 3.8.7
Copyright ©2000 - 2014, vBulletin Solutions, Inc.
This site and contents, including all posts, Copyright © 1998-2014 S.W.A.T. Magazine
Copyright Complaints: Please direct DMCA Takedown Notices to the registered agent: thefiringline.com
Contact Us
Page generated in 0.12258 seconds with 9 queries