Home Defense, Factory vs. Custom Build

[CGRifleman]

A legal question for those of us using a carbine or shotgun as a defensive weapon...
Let's assume that said weapon were LAWFULLY used against an attacker in a home invasion or defensive scenario. Would the shooter face more legal challenges if the weapon were custom built as opposed to factory built?

I'm not a legal expert, but it would seem to me that using a custom-built shotgun or carbine could incur accusations of premeditation (i.e., why would he take the time and money to research, buy tools and put the gun together for this specific purpose) or questions regarding the safety of a gun pieced together by someone who isn't necessarily an armorer.
Remember, this will be explained to jurors that may or may not know anything about guns.

Your thoughts?

 

[Sam1911]

We've discussed this quite a few times before. Here are three good threads on the subject:

http://www.thehighroad.org/showthread.php?t=745424
http://www.thehighroad.org/showthread.php?t=620264
http://www.thehighroad.org/showthread.php?t=586981
Some random thoughts:

Premeditation isn't what you're going for, exactly, more of establishing state of mind, casting doubt on the likelihood of a NEED to shoot, in light of a perceived DESIRE to shoot.

Anything COULD be used against you.

The less questionable the circumstances of a self-defense shooting, the less likely you are to ever end up in court.

Member GEM has done some very extensive professional work in studying the difference that the appearance of a weapon has on the opinions and decisions of folks like investigators, prosecutors, and jury members. The answer is that appearances can indeed be quite significant. Technical modifications or customizations, not akin to Punisher Skull grips? Harder to say.
(To wit: An off-the-shelf, bone stock AR-15 might have more negative impact on you in the eyes of the jury than the most customized, slicked up, hair trigger, competition-only SASS-ready lever-action carbine. Perception counts.)

The prosecutor and their expert witnesses may say anything to discredit you and your choices and cast you in a negative light. Your own expert witnesses may present compelling reasons why you would do or own and shoot XYZ type of gun. Expert witnesses are very expensive.

The safety of your gun won't come into question unless you or the prosecution are trying to establish that you had an accidental discharge, and therefore the shooting wasn't a deliberate act of self-defense.

 

[Panzerschwein]

As someone else said, the perps lawyers can and WILL try and use any "ammo" (no pun intended) against you that they can.

Also, I don't know about you but there are plenty awesome factory defense guns that would have much less invested in them that would be more "expendable" if the police decided to hang on to your $5,000.00 Nighthawk Custom 1911 as "evidence". JMHO.

YMMV.

 

[Sam1911]

...the perps lawyers can and WILL try and use any "ammo" (no pun intended) against you that they can.

Which does bring up another random response. It won't be the "perp's" lawyer who's gunning for you in the criminal trial, but the criminal trial has a pretty high threshold for conviction (guilt beyond a reasonable doubt).

If there is a civil suit, that's when the lawyers for the injured party (or the estate of the deceased) can take their shot, and the threshold for deciding against you is far lower, and possibly easier to target with some negative gun-image picture painting by the opposing counsel. This isn't an issue in every state, of course.

 

[Frank Ettin]

As someone else said, the perps lawyers can and WILL try and use any "ammo" (no pun intended) against you that they can. ...

Well not the "perp's" lawyer, but, in a criminal case, the public prosecutor. And yes, that is in fact how the system is intended to work.

A trial is an adversarial proceeding. Each side has an ethical and professional obligation to, within the framework of the applicable rules, zealously and vigorously represent the interests of his client. And therefore:

1. The lawyer on each side of a dispute has an incentive and professional obligation to put forth, consistent with the applicable rules of evidence and procedure, every fact that will be helpful to his side's interests.
   
   
2. The lawyer on each side of a dispute has an incentive and professional obligation to argue the law as most favorable to his side's interests.
   
   
3. The lawyer on each side of a dispute has an incentive and professional obligation to challenge the other side if he thinks that the other side has overstepped the rules or if he thinks the evidence put forth by the other side is not credible.
   
   
4. The judge is there to rule on disputed matters of law and generally see that the rules of evidence and procedure are followed.
   
   
5. Thus the adversarial system encourages that all facts material to the deciding of the dispute get out on the table.

...The prosecutor and their expert witnesses may say anything to discredit you and your choices and cast you in a negative light...

And it's not even necessary for the prosecutor or expert to actually comment.

The jury will see the gun multiple times. It will be displayed when 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." Perhaps the handgun used has Punisher or "skull and cross-bones" grips. Now some members of the jury won't be able to help wondering why the defendant wanted to embellish his gun in such a blood thirsty way. In any case, members of the jury might very well draw their own inferences based on what they see -- without needing to be led down that path by the prosecutor.

 

[CGRifleman]

there are plenty awesome factory defense guns that would have much less invested in them*

My HD rig is actually an off the shelf DDM4 with a few practical mods, but my previous one was a custom build that has since been sold to a friend. I've had a couple friends who have bought ARs and asked about using them for defense. The OP was more just for general information than for personal application.

Premeditation isn't what you're going for, exactly, more of establishing state of mind

That is more what I meant, yes. This has clarified a few things. Thank you all for contributing.

 

[BSA1]

Good point about how the jury perceives firearms.

I think the stereotypical image of the AR as a "assault weapon" or an "evil black rifle" is changing as the majority of rifle sales today are AR firearms. The AR is generally seen as being used by the "Good Guys" such as in the military and by countries friendly towards the U.S.

I would argue that the AK is just the opposant. It is most commonly associated with Communist Russia and is regularly seen on TV in the hands of terrorists and rogue nations.

 

[Sam1911]

BSA, I wonder about that myself. I'd say among "gunnies" that might be true, but I don't know that the average person is so discerning. I think that to almost any member of the general population, the general form of a pistol-gripped carbine with a large protruding magazine is a universal equivalent. Yes, some good guys carry those guns, and some bad guys carry those guns. But if you flashed a picture of an AR and an AK (especially in more modern synthetic furniture) and asked which one the local cops use, I'll bet you'd get close to a 50/50 split of guesses.

 

[Frank Ettin]

Here is member GEM's published study on the effect of the type of weapon used on jurors. See also this thread and this thread.

 

[Comrade Mike]

This premeditation thing is a slipper slope. You could argue almost anything is premeditation. A good shoot is a good shoot, if you end up in a court room you've done something wrong.

 

[GEM]

Not necessarily. You may be prosecuted because of many factors. Look at the Innocence project - http://www.innocenceproject.org/ - to see how innocent people are tried and convicted.

No shoot is a good shoot based on some universal standards. You can do everything right in the view of the gun world paradigm and still go to court.

One might consider that any shoot is wrong - because taking a life is wrong. The action is only to be justified or excused. That is the basis of modern self-defense law. Frank has written about this quite well and that doctrine is well laid out in legal texts.

To switch hats - as a psychologist - officers who have taken lives in a manner found to be good, righteous, justified, etc. - still think in many cases that it was a terrible thing to do.

 

[Spats McGee]

The problem with the "a good shoot is a good shoot" mantra is that the shooter doesn't get to decide whether the shoot was good or not. A more accurate statement would be: A good shoot is a good shoot after the police, prosecutors, and possibly a judge and jury have decided that it was a good shoot.

 

[CGRifleman]

We're getting a little derailed here. The OP was not about whether or not you would go to court in that situation. I know that in theory, if you acted within the confines of the law, you would not be tried, but the law is not perfect, especially when politics are involved.

 

[rdhood]

I've always thought that gun TYPE could be nullified by the round it shoots. If I were an attorney and thought that the gun TYPE (ar-15/ak47) were influencing the jury, I would create a demonstration. Line up two dozen different cartridges, then show them those that an ar15 uses.


I have done a similar experiment to a dozen different lay (anti gun) people. Invariably, they pick the one of the most potent and deadly looking cartridges layed out. In reality, the .223 is among the smallest and least deadly of ALL rifle cartridges. In a lineup with a vast array of deer hunting rounds, it is an eye opener to see what this round of "overwhelming firepower" actually looks like. It takes a lot of the bite out of an AR15 is "only for killers" argument.

The press has blown the ar15/ak47 out of proportion. Line up the rounds that proportion becomes more balanced.

 

[Sam1911]

Sure, your attorney could -- or your expert witness could -- make a presentation like that if they thought it was worth court time to do so (at least, I think that would be allowed).

But unless the prosecution is making very overt statements about this kind of gun being "bad" I doubt they'd want to use the time to educate the jury that way. After all, as Frank said, the prosecutor doesn't have to say a word about it, generally. They can count on a certain negative view of that 'scary' gun to influence the jurors in a small but significant way. So then the defense is left with the question of why they're bringing up this argument about the specific characteristics of this gun when the prosecution didn't even make any points about it at all?

You really don't want to have to argue against something the other side didn't even (have to) say.

 

[MagnumDweeb]

Here's a big issue. All states have different rules and laws as they relate to self-defense. Not every state has a codified version of Castle Doctrine, not ever state has the equivalent stare decisis of Castle Doctrine, not every state has a means of bringing in essence a motion to suppress or challenge a charge of murder/manslaughter in regards to self-defense within the home.

There has been one notable case out of Minnesota I believe it was where a guy stood waiting for the burgulars and then engaged in some bizarre conduct that broke with the common sense use of self defense. Just recently I think it was in Montana where a guy laid in wait for a kid to break into his half-open garage where he then proceeded to gun the kid down. In both of those instances it was not a clear case of self-defense.

There's a big difference between someone breaking into your home at three in the morning and from the time they broke in to the time you shot them being a handful of minutes, and intentionally leaving your home vulnerable to entry and hiding the whereabouts of your car.

In Florida, if it is a good shoot it doesn't matter. That means no shooting someone as they try to run away. No taking someone prisoner and then executing them. And no talking to the police without first talking to your lawyer and having your lawyer present when you talk to the police (understand what a custodial interrogation is and your Miranda rights).

If it's a questionable shoot or a bad shoot, your in for trouble and then better have good litigation counsel that's able to preserve your right to an appeal before a three judge appellate panel that can discern from the record that the prosecutor failed to overcome your claim of self-defense beyond a reasonable doubt - which will cost you at least $30k mind you. Mind you this is not legal advice but academic discussion. I charge money for legal advice, even to family and friends.

 

[Sam1911]

Ok, but do you have an suggestions re: the question of custom vs. stock weapons? As CGRifleman said, his question wasn't about Castle Doctrine.

 

[Frank Ettin]

...I know that in theory, if you acted within the confines of the law, you would not be tried, but the law is not perfect,...

No, that's not it.

If you threatened or used lethal force against another, even if you believe you were defending yourself, you have intentionally committed violence against another human. That is also on its face a crime. It will remain to be determined whether under the circumstances your act of violence may be justified or excused. That determination will be made by others, not you; and it is not automatic. The determination will be made based on an investigation of the incident and all available evidence.

Whether that determination will be easy or difficult to make will depend on exactly what happened, how it happened and what evidence is available. Sometimes the evidence will be clear, but we can't always count on that. If the evidence is not clear, whether or not you acted within the confines of the law will need to be decided by a trial and a jury. Answering those kinds of questions is what a trial is for.

 

[barnbwt]

It seems like the best tactic is to have good, substantive reasons for choosing what you use to defend yourself, that not only appear reasonable to others, but are reasonable. A good defense in court, and a good practice in general. Just don't get caught posting about 'the most lethal ammo type' or 'dead men telling no tales'. If you have good, pertinent reasons for choosing evil Black Talons over friendly...are any bullets friendly in a shooting? Whatever . Just have a darn good reason for deviating from a social norm if you think you might have to one day justify it (good advice even apart from guns). Using a Five-seven because of its frangible qualities = a good, pertinent reason. Using a Five-seven because it worked well for Nadal Hasan = a stupid thing to say in court.

TCB

 

[mljdeckard]

Custom builds are pretty new territory. I would be surprised if there is any data at all showing how often custom builds are used defensively. Every custom build has a lower receiver with a manufacturer stamped on it, so if the make is required, they will write down whatever is shown, not, "DPMS lower receiver with custom parts added." It is also difficult to tell just how 'custom' it is. It is entirely possible to do a custom build that cannot be distinguished from a factory rifle. If you have a factory rifle that has any custom parts at all on it, how can anyone say if the rifle was or wasn't completely rebuilt?

As stated above, anything can theoretically be used against you. But I really think, if the rifle is tested, and it works safely and properly, any argument saying it was different than a factory rifle is preposterous. (That means neither that they won't try it anyway, nor that the jury won't be fooled.) As for a custom build being premeditation, if you can say that, you can say having a gun at all is the same thing.

 

[GEM]

As far as the suggested demonstration - it might just convince not knowledgeable juries that guns and ammo are bad in general. It would prime negative thoughts and NOT that you used a nice gun because it wasn't an elephant gun.

You would need to extensively test such a demo with a mock jury before risking it in court. That will cost you a fortune.

We've found wildly different opinions from pro and antigun mock jurors. If your jury is not positive to guns - the more you show, the longer you go - AWAY.

It's best to look plain vanilla and avoid shooting if you can. That's my take away from jury research. Might be a good idea to remove the tatoo that says MURDER from your neck - google it.

 

[Spats McGee]

To be honest, I wouldn't worry too much about being accused of premeditation solely on the basis of using a custom gun for SD/HD. There may be plenty of other factors which point to premeditation, but that one seems rather week to me. Now, in all candor, part of my thinking assumes that you have the gun built, and have to use it some considerable time (like months or years) later. If you have someone build a tricked-out AR, complete with "Death to All Joneses" engraved on the side, and you wind up shooting a guy named Jones three nights later, that could get sticky, depending on surrounding circumstances.

Also bear in mind that the particulars of the custom mods makes a big difference. Punisher grips, death's head grips, "hippies wait for flash" around the muzzle, those all present jury perception problems. Internal modifications, better night sights, lighter triggers, smoother triggers, those may present some problems, but it's a different set of problems. What kind of "different problem" depends on what kind of mod we're talking about.

As far as GEM's jury perception research: Should it matter whether you use an all-black AR or a wood-and-blued Mini 14 to defend your loved ones? No, but it might, anyway.