Fellow THR members, my apologies for chiming in late. The question has arisen in this thread as to whether the removal or deactivation of a safety device on a firearm has ever been an issue in court.
The answer is yes, it most certainly has.
It does not come up often when individuals are unmeritoriously charged or sued after shootings, for the simple reason that most shootings involve factory stock guns in factory stock condition. Having spent 19 years as chair of the firearms committee for the American Society of Law Enforcement Trainers and 11 years on the advisory board of the International Law Enforcement Educators and Trainers’ Association, I can tell you that the great majority of police departments do not authorize their personnel to remove or deactivate safety devices from department issue OR privately owned/department approved duty weapons, and many expressly forbid it. (I suspect that most who don’t expressly forbid it have not had the issue come up in court with their department yet.)
Having been an expert witness for the courts since 1979, I’ve personally only run across one case in which it became an issue for the INDIVIDUAL who was charged. This may be the case that THR’s Kleanbore referred to earlier in the thread. The gun in question was a Browning Hi-Power, the magazine disconnector safety of which had been removed from the pistol. It should be noted that it was not the death weapon, and was not at all involved in the shooting. However, at the moment the shot was fired, the scenario became a crime scene, and anything there was discoverable evidence.
Those who do not work regularly in the court system need to understand that the prosecution in a criminal case, and the plaintiff in a civil lawsuit, each have great latitude in which they are allowed to establish (or attempt to establish) “patterns of continuing behavior” which relate to the case they’re trying to prove. In a criminal case such as Manslaughter (the charge in the case in question) or in a Wrongful Death civil lawsuit, the other side is allowed to explore proclivities toward violence or, particularly on point to this discussion, things that might show a continuing pattern of disregard of normal firearms safety practices. They are trying to establish NEGLIGENCE, the key ingredient in a Manslaughter conviction or a Wrongful Death verdict that goes against the person with the gun.
The case in question is one where I was called in by Mark Seiden – a former homicide detective and prosecutor who became most famous for his work as a criminal defense attorney. The case involved a Manslaughter charge in south Florida.
Mark defended his client superbly, keeping him out of jail. The case was “sealed,” which means that I cannot divulge the name of the case. After seeing this thread in THR, I contacted Mark Seiden, whom I’ve known for three decades and with whom I’ve done multiple cases and trials, all resulting in favorable adjudications for the defendant.
Mark Seiden asked me to tell you the following, quoted verbatim, with the request that his client be referred to as “Mr. X”:
Mark Seiden said:
The matter has been sealed, so we cannot use his actual name. It was a tragic case wherein a .45 Colt Commander had been mishandled, resulting in an AD which killed one of Mr. X's employees in another room. The Colt was box stock. Mr. X gave the police permission to search his premises and his car. In the glove box of the car, they discovered a Browning 9mm Hi-Power. Examination revealed the magazine disconnect had been removed from the Browning. The State served notice that it intended to introduce the modified Browning as evidence of "other crimes, wrongs or acts" under Rule 404 (b) to prove that Mr. X was reckless with firearms as evidenced by his removal of a safety device that had been installed by the manufacturer to prevent accidental discharges.
Our objection to this theory was never ruled on as the case was pled out. Mr. X received probation and a withhold of adjudication. The issue never would have reared its ugly head had the Browning not been modified, even though it was not the death weapon.
While the above discussion is limited to attacks on individuals for having guns with safety devices removed, we can learn a great deal from lawsuits by injured individuals against gun companies. Frank Ettin here at THR and other retired or currently practicing attorneys can confirm for you that lawyers often work with “boilerplate,” which means that they take work other lawyers have done on other cases, change the names, and use the same arguments.
Attorneys who work within given specialties stay in touch with each other, sharing “brief banks” A lawyer suing you and even FALSELY alleging that you shot your assailant in a negligent “accident” instead of by justifiable intent, can access all that. Over the last three and a half decades, I’ve turned down more cases than I’ve taken. Some of them involved lawsuits against gun companies – Beretta, Glock, Smith & Wesson, and Sterling Arms – alleging design negligence for not having magazine disconnector safeties. I turned down all those cases when asked to speak by the plaintiffs bringing the lawsuits, and not being involved, did not follow them…but the fact is, those cases WERE brought. The theories of those cases, however BS they might be, sustained lawsuits.
We should learn from that.
So, ending as begun…yes, there HAVE been cases, and the fact that gun enthusiasts who don’t work in the justice system are not aware of them, most certainly does not mean that these cases have not been brought. Quite the contrary.
If the other side, in a wrongful criminal OR civil action, is trying to falsely allege that you are reckless and negligent with firearms, I respectfully submit that you DON’T want to give them a weapon to use against you as powerful as, “LADIES AND GENTLEMEN OF THE JURY, THE DEFENDANT IS SO RECKLESS AND NEGLIGENT WITH FIREARMS THAT HE DEACTIVATES THE SAFETY DEVICES ON LETHAL WEAPONS!!”
Respectfully submitted,
Massad Ayoob
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