Deactivated Safety Legal Troubles?

[Kleanbore]

Posted by RetiredUSNChief:

The best defense any one of us can have, first and foremost, is knowledge/understanding of what the law ACTUALLY says and means...and then to be sure that we ACT within that law.

That's certainly necessary, but it may well not be sufficient.

One who has used force, and especially deadly force, and who intends to mount a defense of justification needs two other things:

1. some evidence supporting each critical element of a self defense case--the more the better; and
2. the absence, or at least a very small amount, of evidence that can be used by the other side to dispute the claim of self defense.

The issue of safety or other firearm modifications pertains to the second item.

Some years ago, I in a similar thread on the subject of gun modifications, here or on The Firing Line, I opined that the only risk of such modifications related to civil liability.

An attorney on the staff pointed correctly the issues of criminal negligence, and also the possibility that, in a case in which the evidence that can be gathered after the fact is ambiguous or contradictory or both, the risk of the modification being used to indicate state of mind.

I will not try to rank those issues on the risk hierarchy, but I most certainly will not discount them.

 

[Frank Ettin]

...Excessive worrying about a legal modification to a firearm is pointless when viewed with the fact that many people don't have a clear understanding of what their jurisdictional deadly force laws say in the first place....

That's true, but there are also two ways to take that:

1. So do whatever you want to the gun and focus the standards for justification of the use of lethal force; or
   
   
2. So remove (or reduce as much as possible) any worry by avoiding, or severely limiting, modifications to a self defense firearm.

I favor the latter since:

...If one goes to court, either criminal or civil, everything that comes up WILL have to be explained. Therefore everything that comes up IS a "wild card"....

So it makes sense to control whatever you control, because you will still need to deal with many things which were outside your control. Eliminate any wild cards you can, because there will still be plenty left to deal with. The fewer things to explain, the better. Or, as Spats McGee said:

...I'm not interested in spotting any points to the other side.

 

[Spats McGee]

Let me also admit, with no small amount of embarrassment, that I completely overlooked the possibility of criminal negligence!

 

[RetiredUSNChief]

Posted by RetiredUSNChief:

That's certainly necessary, but it may well not be sufficient.

One who has used force, and especially deadly force, and who intends to mount a defense of justification needs two other things:

1. some evidence supporting each critical element of a self defense case--the more the better; and
2. the absence, or at least a very small amount, of evidence that can be used by the other side to dispute the claim of self defense.

The issue of safety or other firearm modifications pertains to the second item.

I agree. Perhaps, using my previous comment, what you're saying might be expressed as "a foundation does not a house make".

I would most certainly be remiss in saying that the issues with modifying a safety are not important. It would be akin to building a house with a leaky roof. The foundation may be solid, but what good is that if the house is laid waste by water damage?


People bring up good things all the time on this site...and I really love the fact that THR firmly sticks to the "high road" concept. It keeps people focused on important things and facilitates a learning environment.

 

[Frank Ettin]

Let me also admit, with no small amount of embarrassment, that I completely overlooked the possibility of criminal negligence!

A conviction on voluntary manslaughter might look to some prosecutors like a more satisfactory result than an acquittal.

 

[Kleanbore]

Perhaps, using my previous comment, what you're saying might be expressed as "a foundation does not a house make".

Well, by golly, I almost replied, "that is the foundation, but that alone will not provide shelter".

 

[massad ayoob]

It is good to see so much logical, thoughtful commentary here, on a topic that has often gone astray elsewhere.

Just a few comments:

In a criminal case (and remember, the case Mark Seiden defended where this matter came up was a criminal charge of Manslaughter) negligence can support a Manslaughter charge as surely as it can support a civil lawsuit in a Wrongful Death action.

We all need to bear in mind that it's not just an issue in accidental discharges; it's an issue any time opposing counsel (criminal or civil) FALSELY ALLEGES accidental discharge. The Other Side well knows that while there is such a thing as Justifiable Homicide, there is no such thing as a Justifiable Accident.

While the original design parameters of Colt in 1911 or FN in 1935 are of interest to us gun enthusiasts, they will tend to put a jury of lay people to sleep. Whether criminal or civil, opposing counsel can be expected to try to paint you as an arrogant, unreasonable person who marches to his own drummer and does not care about the safety of others. Anyone who tries to claim that he knows more about guns than the company that manufactured the pistol in question fits that narcissistic profile and plays into his opponent's hands. Colt and other manufacturers went to great expense to create the Series '80 firing pin safety (and Kimber, to resurrect the Swartz safety of the late 1930s in their series-II pistols, etc.) because they felt it was of value to safety. John Moses Browning patented a magazine disconnector safety for similar reasons. Any of us who claim to know more about 1911s than Colt, and more than John Browning about the 1911 or the High Power, fits the profile of the arrogant fool opposing counsel is trying to paint for the jury.

It doesn't cost any of us anything but our time to discuss it here on THR. In court, there will be many hours of prep time, pre-trial deposition time, and court time for which the unlucky defendant will have to pay hundreds of dollars an hour to both defense attorneys and expert witnesses to refute the "he is so reckless he deactivates the safety devices on lethal weapons" argument. The readers HERE are gun enthusiasts who understand what you're saying; the listeners in court will be ordinary citizens expressly selected by the other side during jury selection for their lack of knowledge of firearms. Arguments that make sense to gun buffs "won't play in Peoria" very well.

Please understand that none of us recommending against the removal of magazine disconnector safeties, etc. have axes to grind, or get a royalty every time someone puts the disconnector back into their Browning P35. We are each warning people that this has come up before, and could come up for THEM. It's a whole lot better to find out about it here, NOW, than in court, later.

 

[DT Guy]

I suppose I just need to ask again; if you use a gun that you don't shoot as well as you possibly could (because you left the trigger too heavy, or left a creepy mag safety in, or whatever) what would the cost be if you shot the wrong person?

As mentioned, NYPD's done it repeatedly, and many of us would suspect it's due to their heavy triggers, at least in part. There's a cost for that in blood, if nothing else-what is the cost in dollars?


Larry

 

[Frank Ettin]

I suppose I just need to ask again; if you use a gun that you don't shoot as well as you possibly could (because you left the trigger too heavy, or left a creepy mag safety in, or whatever)...

I suppose I need to ask why you would be using that gun. There are plenty of quality handguns available that can be managed quite well in box stock condition. It can simply be a matter of training and practice -- and selecting the right gun.

...As mentioned, NYPD's done it repeatedly, and many of us would suspect it's due to their heavy triggers, at least in part....

The Glocks issued by the NYPD are modified guns. Their triggers have been modified as required by NYPD policy to be heavier than desirable. NYPD policy in that regard is another illustration that it's unwise to try to solve what is a software (training and practice) problem with a hardware fix.

 

[RetiredUSNChief]

I suppose I just need to ask again; if you use a gun that you don't shoot as well as you possibly could (because you left the trigger too heavy, or left a creepy mag safety in, or whatever) what would the cost be if you shot the wrong person?

As mentioned, NYPD's done it repeatedly, and many of us would suspect it's due to their heavy triggers, at least in part. There's a cost for that in blood, if nothing else-what is the cost in dollars?


Larry

Hmmm...

I'm of the opinion that the circumstance you cite as an example ("NYPD's done it repeatedly") is not an analogous scenario.

For one, the fact that any particular gun isn't something that you "shoot as well as you possibly could" for such examples as you cite has no relevant bearing on the most important factor, and that's the decision to unholster the weapon with the intent to use it in the first place.

For another, any PD has something going for the officers that you or I do not have, and that's the fact that the city, county, state, or federal agency in which they work for provides them with liability coverage because they are employees specifically empowered to use deadly force as required to carry out their responsibilities as representatives of the agency they work for, which is ultimately at the government level. So long as the officer is acting properly within that role, then the government they work for shoulders the liability concerns. This is not a luxury we, as private citizens, have.


If you shoot "the wrong person", then you are still in a world of hurt because you are still ultimately responsible for everything that happens with the firearm. What that liability will turn out to be will depend on how it's prosecuted and at what level (criminal and/or civil).

 

[Kleanbore]

Posted by DT Guy:

I suppose I just need to ask again; if you use a gun that you don't shoot as well as you possibly could (because you left the trigger too heavy, or left a creepy mag safety in, or whatever) what would the cost be if you shot the wrong person?

"Left the trigger too heavy"? "Left a creepy mag safety in"?

As Frank asked , why would you ever choose such a firearm in the first place?

As mentioned, NYPD's done it repeatedly, and many of us would suspect it's due to their heavy triggers, at least in part. There's a cost for that in blood, if nothing else-what is the cost in dollars?

I would not carry a Glock with a New York trigger.

But I should not lighten the pull on a trigger on a semi-automatic pistol.

 

[Frank Ettin]

....I would not carry a Glock with a New York trigger.

But I should not lighten the pull on a trigger on a semi-automatic pistol.....

And I find that I can shoot a standard, stock Glock quite well.

 

[9mmepiphany]

Posted by DT Guy:

"Left the trigger too heavy"? "Left a creepy mag safety in"?

As Frank asked , why would you ever choose such a firearm in the first place?

This would seem the obvious question

I would not carry a Glock with a New York trigger.

Not to contradict a fellow mod, but we all have differing experiences.

I have carried a G19 with a NY-1 trigger and shot it rather well in the time when it was my EDC. I even competed in GSSF competition with it.

It really is a matter of training and practice...I liked it because it felt a lot like a revolver trigger that I was familiar with

 

[SMMAssociates]

One problem with the "I wouldn't carry a...." suggestion. Some PD's issue those things, and woe be unto the Officer who carries something else.

Same thing applies for all of us in some states, I think, although changing those triggers (or specifically buying a gun with a lighter trigger) would fit into the negligent modification area if it was noticed at all. (Some part-swapping is usually legal, or you can buy a used gun, etc.)

A friend of mine was called as an expert witness in a murder case some time back. The defendant's counsel (and the defendant) claimed that he couldn't have killed anybody because the gun (a 1911) had a broken firing pin. She borrowed a pencil from the Bailiff and did a pencil test.... The defendant was not amused. Everybody else was, as they watched the pencil fly across the room....

Mas: Thanks for jumping in! Appreciated....

Regards,

 

[DT Guy]

Frank Ettin Wrote:And I find that I can shoot a standard, stock Glock quite well.

As can I.

But I shoot a Glock with a '-' connector BETTER. Do I give up that potential advantage (i.e., ability to hit my chosen target, and no other) because of the liability that could accrue after the fact?

Or is my primary responsibility to ensure I have the absolute best tool to stop a threat without endangering innocents?

Folks seem to dismiss accuracy considerations in defensive shooting, but I don't believe shooting a moving, potentially distant and fatally threatening target will be easier than my usual IDPA match; I assume it will be much, much more difficult. The things that help me shoot better-Cooper's 'sights and trigger'-will be important.

How far do I stray from the gun I shoot 'best' to protect myself in the courtroom, SHOULD I survive the encounter?


Larry

 

[Kleanbore]

Posted by 9mmepiphany:

I have carried a G19 with a NY-1 trigger and shot it rather well in the time when it was my EDC. I even competed in GSSF competition with it.

If I recall correctly, Massad Ayoob has won in competition with one.

It really is a matter of training and practice...I liked it because it felt a lot like a revolver trigger that I was familiar with

That may be true for some people, but my arthritis and tendonitis indicate a really heavy trigger pull.

 

[Kleanbore]

Posted by DT Guy:

Do I give up that potential advantage (i.e., ability to hit my chosen target, and no other) because of the liability that could accrue after the fact?

Or is my primary responsibility to ensure I have the absolute best tool to stop a threat without endangering innocents?

Carry a gun that you can use effectively, and do not give someone the grist with which to grind you down in the court mill by having modified it.

Folks seem to dismiss accuracy considerations in defensive shooting, but I don't believe shooting a moving, potentially distant and fatally threatening target will be easier than my usual IDPA match; I assume it will be much, much more difficult. The things that help me shoot better-Cooper's 'sights and trigger'-will be important.

Consider the likelihood. In an SD situation, your target is very likely to be within fifteen feet of you, and even closer. You need combat accuracy, and to balance speed and precision. A very light trigger pull is likely to not help very much at all.

You may also find your use of the sights a lot different.

How far do I stray from the gun I shoot 'best' to protect myself in the courtroom, SHOULD I survive the encounter?

First, shooting "best" in a defensive encounter in the of doors means not shooting anyone whom you should not be shooting. That's not just for the courtroom.

And competition shooting is not necessarily very representative of responding in a defensive encounter.

If you have not found an unmodified firearm that will meet that need, keep looking.

 

[Tirod]

The NY trigger issue is interesting, to a point. Mr. Ayoob, IIRC, shot with one to a championship just to prove trigger weight isn't that much an issue.

The LEO's in NYPD who inadvertently shoot innocent bystanders aren't being inaccurate, per se, as much as the bystanders are down range. People in a hail of gunfire have a peculiar response with their nervous system in which they react to the gunshot, turning, moving, and frequently falling to the ground. What was a COM shot becomes a miss because the target moves unexpectedly.

The results are identical to combat - the subsequent hits that result are a matter of chance, which is what the Army established actually happened on the battlefield. Most of the hits were random past the first hundred yards, the soldier hit walked into it. The result was the decision to increase fire as more bullets in the air equal more hits.

As for PD's buying Glocks, it passes completely over the issue that most were using revolvers with double action pulls. The Glock was designed to mimic that use. The price point and magazine capacity were a plus.

And as pointed out, if you shouldn't modify the safeties on a personal defense weapon, how much more so the trigger pull weight? Should you be carrying a target weight trigger on the street - it takes much less effort to pull and the point can be made by a knowledgeable and aggressive attorney that it only increases the probability of a negligent discharge.

Entirely the point of the NY trigger. It has a field, tactical pull weight. Field firearms do not use light target trigger weights for specific reasons.

Given the recent debacle over the Remington 700, it wouldn't be out of context for a jury to see a light trigger making the gun fire because the existing safety was flipped off.

What we're discussing in the larger perspective is that the "arrogant" gun carrier who possesses and uses a modified firearm in self defense does face more risk in liability. Might as well hacksaw slots in the nose of the bullet and add cyanide.

The reality is that any modification, unless ADA related, is unnecessary. NYPD officers routinely qualify with ten pound triggers. The mag safety issue isn't a major impediment to carry. It's a matter of personal preference - make a different decision, not modify it to be a different gun.

That tends to run crossways to the real intent in choosing a firearm, tho. Which is being a tactical piece of men's jewelry, male ego enhancement. How many choose a firearm because they think it's cool and makes them look cool, too?

I submit the ones who deny it are the most likely. Those who are issued a firearm they dislike don't quit their job over it, do they? I don't read of thousands of soldiers protesting the issue of the M16 by sit ins, being AWOL, etc. because they were die hard M14 fans.

They sucked it up and made do. Same as the hundreds of thousands of LEO's who carry Glocks but who don't dwell on the downsides of using them. (What downsides? Ask any 1911 fanboi.)

Therefore, not only is modifying a carry gun a liability under the law, it's should be obvious that by and large it isn't necessary. As said before, you have to be grounded in the law to use it, by the time you work down the list of probabilities where that one item is a make or break issue, it's extremely rare. And it can be said that you should have trained, shot, or prepared better to address it. Not goof around with the gun to cover up a lack of skill on your part.

Save that for the square range where you can finesse operating it.

 

[Kleanbore]

Excellent post, Tirod.

 

[Spats McGee]

While the discussion of the NYPD and its selection of trigger characteristics is certainly interesting, it's also important to note that when it comes to liability, police officers are protected legal doctrines that have no application to members of the general population.

 

[RMc]

A Lock is not a Safety as normally understood.

So, just what constitutes a safety?

The question of just what is a safety has specific reference to the latest generation of firearms that come with internal locks. One line of popular defense revolvers now come with an internal lock system that has failed in a number of instances. These failures locked up the gun when the lock was set to the fire position. Notice I said "Lock" as these mechanisms are not used in the manner traditionally attributed to safeties. If such a lock is removed it is not the same as removing a "safety" as the arm can be easily deactivated or locked by inserting an external lock in the form of a padlock or handcuff inserted behind the trigger.

What say you?

 

[SMMAssociates]

RMc:

I think we've been "had" once again by the anti's....

The distinction between a safety device, like some kind of "Hilary Lock" and the thumb safety on a 1911 is pretty obvious to us, but the average person may not make the distinction.

Meantime, the Hilary Lock comes across to be the same as the thumb safety to many people. That you'd have to "log on" to a gun to shoot it (find the key to the Hilary Lock, for example, or worse) makes perfect sense to them.

(Think about a "flash hider" or "flash supressor"? Is that there to keep others from seeing where you are when firing, or is it intended to preserve your night vision?)

We really need to either hold some anti feet to the fire, or find a way to turn those names to our defense.

I think we need to push "if it requires more 'motions' than just drawing, aiming, and firing, it's a lock of some kind".

Regards,

 

[Frank Ettin]

Doesn't look like there's anything new. If anyone is interested, follow the links in post 23.