Legal Issues with Kel Tec PF9 Trigger Upgrade ?

[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]

Originally Posted by 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. ... 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]

Originally Posted by Sawyer.N

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

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

Originally Posted by Sawyer.N

...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]

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.

[Walt Sherrill]

Originally Posted by OldMarksman

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?

There are certainly members in some agencies that are VERY PROFICIENT and familiar with their weapons. And SWAT team members are among them. They are required to focus on their use of weapons. But I think they are the exception, not the rule.

I may be over-simplifying, but using LEOs as a model or standard in this discussion may be misleading, as I suspect that only a small percentage of LEOs are really frequent users of their weapons! Most, for example, would NOT consider taking time away from their family lives to spend fun time at the range. Many (perhaps MOST) of them may be no more LIKELY to use a weapon in the real world (whether against attackers or critters) than many of us on this forum, and most of them will likely have far less trigger time! MANY LEOs will go their entire career without ever firing their weapons on duty (except in training or qualification sessions) and problems seldom occur on the street, when they're interacting with citizens or potential perpetrators that makes it necessary to unholster their weapon. In my experience, which may not be typical, most LEOs are not gun enthusiasts and many (probably MOST) only use their weapons during their periodic qualifications. They have other tools that they find more useful in their daily work -- whether it's a baton, pepper spray, or a Taser, etc. -- and they'll use them first, if they can. (That's good.)

It should be no surprise then, that there are problems and accidents in some departments and that department management has taken steps to keep problems to a minimum by picking weapons that THEY HOPE will make such events less likely, but I'm not sure the effort has been all that successful. That said, I'd argue that Glocks are pretty close to a (non-worked over, fully STOCK) SA gun if you don't have a NY trigger or similar mods installed -- and most LE agencies don't use the NY trigger. (The only folks I've met who really LIKE the NY trigger are shooters who have been life-long revolver shooters.)

[Lohman446]

I'm pretty sure arguing that you are more qualified in the use of lethal force than a law enforcement officer, while often being factually accurate, is not a going to help your argument to a jury.

I recall reading one case study (I forget the name, maybe someone here doesn't) where the wife and husband were involved in an altercation with multiple unarmed attackers in or around their driveway (the exact where is a question of fact) and the husband fired shots on the attackers and then rendered aid.

His amount of training was actually used against him. The prosecution painted him as having been seeking out a chance to use his gun.

Lawrence Hickey was the case I was thinking of

[Frank Ettin]

Originally Posted by Walt Sherrill

...Many (perhaps MOST) of them may be no more LIKELY to use a weapon in the real world (whether against attackers or critters) than many of us on this forum, and most of them will likely have far less trigger time!...

The people on this Forum represent a miniscule portion of private citizens who carry guns for protection. While some of us here have more training than the average LEO, the majority of gun owners, including those who regularly carry their guns, probably have far less.

[Frank Ettin]

Originally Posted by Lohman446

...I recall reading one case study (I forget the name, maybe someone here doesn't) ...

Please spare us these unidentified, undocumented "case studies." If you, or we, can verify it, it's worthless.

Did you remember it correctly (often we discover that people did not)? But unless we can know that your recollection is accurate and that what you think happened actually did happen exactly the way you think it did, what good is the information?

[MarkCO]

Just a question...how many of the lawyers posting on this thread have been qualified in court as an expert in firearms, ballistics or shooting reconstruction?
Funny how attorneys tell folks to stay in their own lane, but attorneys don't take their own advice. Attorneys are supposed to be an advocate for their client, that is all.

Last, I will quote my first point...

1. There is NO case history proving what a single jury might or might not do.

This is the "pause" that any prudent person should take when doing anything that might put them into the legal system.

[Spats McGee]

Originally Posted by MarkCO

Just a question...how many of the lawyers posting on this thread have been qualified in court as an expert in firearms, ballistics or shooting reconstruction?

AFAIK, none. How many law licenses do you hold?

[Lohman446]

Frank Ettin

I edited afterwards. Lawrence Hickey. Though again one does not know exactly how each factor played and there were disputed matters of fact (street vs driveway for instance)

[Frank Ettin]

Originally Posted by Lohman446

...I edited afterwards. Lawrence Hickey...

The Larry Hickey story is a complicated one. Marty Hayes did this excellent monograph on Hickey, his 71 days in jail, his two trials ending in hung juries, and the DA's ultimate dismissal of the charges.

Here Hayes tells us about the training issue (pg 18):

...Even if the defense had chosen to give only cursory mention to Hickey’s training, the prosecutor would have forced their hand at trial. He harped endlessly on the various shooting classes Hickey had completed. “It worked to our advantage in both trials because we disclosed all that to the prosecutor from Day One,” Messmer [Hickey's public defender] states. “In trial, the prosecutor went overboard with that and he really disgusted the jury because he wasted their time,” Messmer explains, relating how, like a broken record, the prosecutor asked each expert and material witness about each class Hickey had completed, what it covered, challenging why a private citizen would need that knowledge.

Messmer believes the jury eventually thought, “Get to the point. We know that!” He adds, “It made the prosecution look bad because Larry was getting training and doing his job and they were attacking him for that. It blew up on them in the first trial, and they went back to it and it blew again in the second trial. We knew they were going to bring it up, but it actually helped us out.”...

[Frank Ettin]

Originally Posted by MarkCO

Just a question...how many of the lawyers posting on this thread have been qualified in court as an expert in firearms, ballistics or shooting reconstruction?....

And exactly how do you think that's applicable here?

Originally Posted by MarkCO

...Attorneys are supposed to be an advocate for their client, that is all....

And do you have even the tiniest clue what that means and what it involves. Among other things it involves:

1. Understanding the law that will be applicable to the case, including what the jury instructions are going to be. That could also include proposing jury instructions and framing legal arguments as to why those desired jury instructions should be given.
   
   
2. Investigating the facts, including making decisions about hiring private investigators.
   
   
3. Conducting discovery to find out what evidence the other side has. And responding to discovery requests from the other side in ways best calculated to protect the client's interests and rights.
   
   
4. Analyzing the evidence in the context of the applicable law for the purposes of making strategic and tactical decisions about how to best, within the constraints of the applicable rules tell his client's story. That can include deciding what witnesses to call in what order, what questions to ask and how to ask them -- considering likely jury and judge responses and how to lay any foundation required by the rule of evidence. It can also involve deciding when, where, and with respect to what engage expert witnesses.
   
   
5. Making strategic and tactical decisions about how to best, within the constraints of the applicable rules, attack the other side's story.
   
   
6. Put together a closing argument based on the evidence for the jury tieing everything together: what the true facts should be found to be; why; and how the law when applied to the facts should lead the jury to conclude in a manner favorable to the client.

[Walt Sherrill]

Originally Posted by Frank Ettin

The people on this Forum represent a miniscule portion of private citizens who carry guns for protection.

My point was that LEOs aren't a lot different than most of the general public, when it comes to firearms: some are competent and proficient, others less so.

Commenting about the weapons LEOs are forced to use (i.e., they are seldom able to choose the weapons themselves) tells us more about LEO leadership and their concerns than anything about the actual safety of weapons or why those weapons are chosen for use.

Originally Posted by Frank Ettin

While some of us here have more training than the average LEO, the majority of gun owners, including those who regularly carry their guns, probably have far less.

Except for those officers with specialized duties, the training LEOs get -- once they've been through the equivalent of Basic Law Enforcement training and become a certified LEO, there typically isn't much training done. (A few departments may use simulators, but that's been on the decline over the past decade as LEO budgets went to hell with the recession.) More often, it's not training but just periodic qualifications to demonstrate a base level of proficiency or competency.

It's really hard to have FAR LESS training than the typical LEO receives over the course of his or her career. Some of them -- like SWAT TEAM members -- do get a lot of training, and become very proficient -- but I think they're the exception, not the rule.

You do bring up an interesting point, however -- I wonder how many folks DO carry a firearm regularly, and how many do it legally (if doing it concealed.)

[Frank Ettin]

Originally Posted by Walt Sherrill

...Except for those officers with specialized duties, the training LEOs get -- once they've been through the equivalent of Basic Law Enforcement training and become a certified LEO, there typically isn't much training done...

Even that is considerably more training than probably the vast majority of people carrying loaded guns in public -- especially with the expansion of Constitutional Carry in a number of States.

Folks even post here that they don't need any training. Maybe they had some in the military some years ago. Maybe they used to go hunting with their fathers. Maybe they shot a .22 rifle a few times one summer at camp. Maybe a buddy spent a half hour showing him the ropes. Or maybe not even that much. But that ought to be all anyone needs. Really?

From what I see that the public ranges I frequent the general level of proficiency -- both gun handling and marksmanship -- is atrocious.

[Bill DeShivs]

Here's something for the legal eagles-
"I bought the gun used, and it was like that when I bought it. I didn't know anything had been modified."

[ShootistPRS]

So you are totally incompetent as well as a killer?

[Walt Sherrill]

Originally Posted by Frank Ettin

Even that is considerably more training than probably the vast majority of people carrying loaded guns in public -- especially with the expansion of Constitutional Carry in a number of States.

You may be correct, probably are -- but you're making a lot of assumptions that simply aren't based on anything that can be verified. What you see at the range is not a representative sample.

We all make assumptions like this all the time, about why people vote as they do, why they believe certain things about their religion or religious practices, about folks with different skin colors, why they think the U.S. moon landing was faked, etc. We (you and I) consider our assumptions on this topic rational, too. Any training is certainly MORE no training... but saying FAR MORE may be exaggerating it a bit, for effect.

An hours of flight instruction in the cockpit is certainly FAR MORE than NO instruction or hands-on guidance if you've never flown a plane yourself, but it may not be sufficient.

[OldMarksman]

How much training people receive bears little relevance to the subject at hand.

The reasons for the removal of single action capability from revolvers, and the reasons for the adoption of semi-auto pistols with longer, heavier triggers, apply to all service and defensive handgun applications.