Here we go again.
I'm a lawyer retired after over 30 years in practice. I therefore have some first hand understanding of how the legal system works. And I will not disable a safety device in a handgun I will use for self defense. (I won't use handloads for self defense either.)
[1] First, we really have to get over this "a good shoot is a good shoot" business. If you are on trial after a self defense shooting, someone doesn't think it was a "good shoot." Either the DA decided that he had something to prosecute or the grand jury concluded that there was probable cause to believe that a crime had been committed and that you did it. There is a dispute about whether the shooting was justified, and determining whether it was a "good shoot" is now going to be up to the judge and/or jury.
[2] As a lawyer, I have seen how juries can be influenced by any number of factors. We know for example, from post verdict juror interviews that at least some of the jurors in the Harold Fish case were troubled by his use of JHP ammunition. Of course the notion that there was "something wrong" with Mr,. Fish for using that sort of ammunition was planted in the minds of the jurors by the prosecutor, and not effectively dealt with by the defense. And since JHP ammunition is more effective, we still recommend its use for self defense and hope, if the need arises that our defense will be able to deal with the issue. Nonetheless, the Harold Fish case is an example of how something like the kind of ammunition used in a self defense encounter can affect the thinking of members of a jury. (Mr. Fish won a new trial on appeal, but he still has gone through an awful ordeal and is still in prison.)
[3] And of course, the use of a gun on which you've disabled a safety device has isn't going to be the only issue. No capable and ambitious prosecutor is going to pursue a possible self defense shooting case if all he has is the fact the you used such a gun. If you're on trial at all, the prosecutor believes he has enough factors, and the evidence to prove those factors, to overcome your claim of justification.
[4] I can't not believe that a skillful prosecutor, having decided to prosecute you after a shooting which you claim was in self defense would fail to make whatever use he felt he could of the fact that you used a gun from which you removed a safety device (or handloaded ammunition). Any capable prosecutor is going to, first of all, be excluding from the jury anyone who has any interest in, or knowledge of, guns. If he can get some folks on the jury who are a little afraid of guns, so much the better. A least a few of such jurors are likely to be uncomfortable with the fact that you tinkering with your gun, or the you have tinkered with your gun, or the mere fact that your hobby is guns or shooting. Some of the jurors may even have personal doubts about whether a private citizen should even be allowed to have a gun. People unfamiliar with guns tend to have an exaggerated fear of them and are likely to see it as reckless to remove a safety device fitted by the manufacturer. Do you claim to know better than the company that made your gun?
[5] Remember also that a plea of self defense is different from most other defenses to a criminal charge. In general, the common defense to a criminal charge is essentially, "I didn't do it, and you can't prove that I did." But when you plead self defense, the first thing that you have effectively done is admitted that you did it. You must essentially say, "I shot the man." And the essence of the claim of self defense is, "But I was justified in shooting him."
[6] Because of the nature of a self defense plea, how the jury sees you can be very important. You will want them to be willing to accept your claim that you were justified in performing an act that is generally, in good society, repugnant -- an act of extreme violence against another human being resulting in the injury or death of that human being. He may have been a criminal with a long history of violence, BUT in most cases any evidence to that effect will be inadmissible.
[7] Yes, we know that the jury is supposed to decide on the basis of the evidence, not how they feel about you. But we also have to accept the fact that a juror's emotional perception of a witness will affect the credibility and weight given to his testimony. I've had jurors tell me in post verdict interviews, that they didn't trust this witness or that they believe that witness because of personal characteristics of the witness that they either thought ill of or thought well of. That is the real world.
[8] At a trial, at the end of the presentation of evidence, each side gets to argue what the trier of fact should infer from the evidence. So a prosecutor might argue that a trier of fact should infer certain things about your character, your reckless disregard for safety and disposition for violence from the evidence that you modified the gun you used to remove a safety device that the manufacturer saw fit to incorporate.
[9] So Suzy Soccermom now asks herself, as she sits on your jury deciding whether to believe your story about what happened when you shot that nice gang member, why your gun wasn't lethal enough as it came from the manufacturer to satisfy your perverted blood lust. Remember, Suzi Soccermom and her friends are going to be deciding if the shoot was good.
[10] And yes we know that there don't seem to be any cases that illustrate all this. But then again, how many defensive uses of a gun result in the gun being fired? And how many defensive shootings result in a trial (many are in fact clean cut "good shoots")? And of those that go to trial, in how many has the defendant (claiming self defense) used a gun with a safety device removed (or handloaded ammunition or with a super light trigger)? I strongly suspect that the vast majority of people who keep and/or carry guns for self defense use stock guns and factory ammunition. In other words, the sorts of case we'd be looking for just doesn't happen often enough to be on radar.
[11] In the event of your having to use your gun for self defense, there will be things you can't control and those that you can. You really can't control how a violent encounter will unfold. You can control how you prepare and what your tools will be. It is, however, true that a prosecutor might try to use just about anything against you, like using JHP bullet or having had extensive training. But somethings, while they may have a downside in court, can give you an advantage on the street -- like training and JHPs. But something may have a downside in court without any countervailing advantage -- like handloaded ammunition or certain gun modifications (when guns that would be suitable without modification are available).
[12] Personally, I'd like to stack the deck as much in my favor as I can. And the less I may need to explain, the better. If I wind up on trial after a self defense shooting, my lawyer is going to have to deal with any number of factors that the DA thinks will help him put me in jail. I don't want to give my lawyer any more problems than he already has (and his problems are my problems).
[13] Everyone gets to make his own decision, but I will not use a gun which has had a safety device disabled for self defense, nor will I use handloads or a gun with a super light trigger. I feel that I can provide for my defense without burdening myself with those sorts of legal wild cards.
[14] I tend to think of the issue in terms of a paraphrase of Pascal's wager: I don't know it disabling a safety device on my gun (or using handloads, or adjusting my trigger to be very light) will adversely affect the outcome if I am on trial for using my gun in what I claim was self defense, but I really have nothing to gain by disabling the safety device (etc.) even if it won't affect the outcome (because I can get adequate performance without engaging in those behaviors -- i. e., by using a different gun, learning to better manage the one I have, using quality, commercial ammunition, etc.). However, I have a great deal to lose if disabling the safety device (etc.) would adversely affect the outcome.
Of course, one may do as he likes. It's not my problem.
Quote:
|
Originally Posted by ranburr
...I have asked at least numerous judges and a number of prosecutors and private attourneys about this issue. Not a single one has ever said it would be an issue.
|
Perhaps one of them would like to register here and enter the discussion so we could get their views first hand.