Legal ramifications for removal of mag safety

[General Geoff]

They may be willing to grant that someone could properly defend his life using a gun. But too many technical arguments about the attributes and mechanisms of guns -- how they work and what qualities are tactically desirable -- will cause their eyes to glaze over like the Easter ham.

This is not a one-way street. Why would jurors give credence to a technical argument (that the defendant disabled a magazine disconnect) made by the prosecution, but ignore a technical argument (that said magazine disconnect is a detriment to the simple function of a pistol) made by the defense? If their eyes glaze over during one, they're just as likely to glaze over during the other.

Now there's something to be said about a prosecutor grand-standing about how unsafe the defendant is, modifying his gun and whatnot, but there's also something to be said about asking if any of the jurors themselves have ever modified a mechanical device for better function, such as a car. Really what this comes down to, is the ability of the prosecutor to unabashedly appeal to emotion while dismissing technical merit, vs the ability of the defense to quash these appeals with logic and fact.

 

[Carl N. Brown]

In a criminal court over self-defense versus a civil court over a tort claim, an intentional shoot with a gun with a disabled magazine safety and an accidental shoot with the same, would probably not be subject to the same type of arguments or evidence.

A lawyer in a civil court could easily argue that disabling a "safety" device indicates a cavalier attitude toward safety. Convincing a jury of laymen my argument that the "safety" device was unnecessary or encouraged unsafe gun handling could be a hurdle in civil court over a tort claim in an accidental shooting.

To answer why did I buy a gun with a defective design and modify it, I could argue its like buying a gun with fixed sights and installing adjustable sights or buying a gun with wood grips and installing Pachmyrs. Now convincing a jury skewed by prosecutoral selection toward National Coalition to Ban Handgun supporters could be a problem.

 

[Carl N. Brown]

As has been pointed out by John Lott and others, in the Hattori shooting, mistaken shooter Peairs was cleared in criminal court (a reasonable person would have been in fear) but was found negligent in civil court. IIRC a big deal was made about his tricked out pistol (the Japanese exchange student Halloween shooting by frightened Louisiana homeowner).

 

[massad ayoob]

rbernie asks at post #22:

Thanks, Mas, for the excellent feedback. But I have to ask the next logical question - to what end did the magazine interconnect being removed from the BHP appear to influence the plea agreement?


rbernie, that's something you'd have to ask Mark Seiden and his client. I was just an expert witness, and we don't play much part in plea bargain agreements. I do know the client was devastated by the whole thing and just wanted the nightmare to end.

Had it gone to trial, we were prepared. We would have spent considerable time arguing what is being debated here, not to mention the fact that the gun had been modified by someone else before it came into the defendant's possession. We would of course have made it clear that from the military to the FBI, major users these days don't WANT guns with magazine disconnector safeties.

The defense would have made a motion in limine/I] to exclude the Browning due to relevance and the fact that the prosecution's argument carried far more inflammatory potential than probative value, but there is no guarantee that the judge would have agreed.

Now, quite apart from the client paying thousands of extra dollars -- hours of trial attorney time, expert witness time, prep time, etc. -- we would be back to what Fiddletown has aptly referred to in some discussions as "inside baseball" arguments.

The other side gets a powerful, resonating sound bite: "This man was so reckless in his wanton disregard for human life that he USED A WEAPON WITH A DEACTIVATED SAFETY DEVICE!" And for some here, the sound bite would be even harsher: "HE, HIMSELF, DELIBERATELY DEACTIVATED THE SAFETY DEVICE ON A LETHAL WEAPON!"

What we would have had against that would be "the arguments of arcania." The history of the P35, why the French (who never bought the damn Hi-Power anyway!) originally specified the gun with certain features, and cetera. Fiddletown is right: if you're not interested in guns, that stuff will put you to sleep.

Here's a simple experiment. Our podcast group, ProArms Podcasts, did an episode on the Browning Hi-Power. You can find it at iTunes, Zune, or http://proarms.podbean.com. Download episode number 028, the one on the Hi-Power.

Now, gather some friends and relatives who DON'T share your interest in technical firearms stuff around your computer or iPod and play it. I suspect that in a matter of minutes you will see people nodding off, eyes glazing, folks glancing at watches, etc. This stuff simply does not hold the interest of people who don't have a specific interest in the topic, and some significant grasp of it beforehand.

Yes, we could have debated the point, and hopefully couched our argument in lay terminology sufficiently to win the debate. But as Fiddletown and others have pointed out, why waste time with it at all, when it can be avoided?

The other side will try to drag red herrings across the trail of the truth, to get the bloodhounds on the jury off the scent of that truth. I for one don't care to leave red herrings laying around for opponents to use for that purpose.

It's easy to argue for the sake of the argument on the Internet. It's something else when your future is at stake, and you're paying a top trial attorney $300 or more to argue the point for many hours. Such things are like gunfights: they can be won, but they are best avoided, and you don't want to be giving the opposing side additional firepower.

Cordially,
Mas

 

[Frank Ettin]

Why would jurors give credence to a technical argument (that the defendant disabled a magazine disconnect) made by the prosecution,...

Because it's not a technical argument. It's nice and simple and intuitive for an ordinary person with no great knowledge of or interest in guns. As Mas put it

..."This man was so reckless in his wanton disregard for human life that he USED A WEAPON WITH A DEACTIVATED SAFETY DEVICE!" ... "HE, HIMSELF, DELIBERATELY DEACTIVATED THE SAFETY DEVICE ON A LETHAL WEAPON!"...

Ain't nothing technical about that. And it plays directly to the normal fear non-gun folks have about guns -- they're dangerous.

Trying to overcome that immediate, intuitive reaction is where the defense has to bring out the sleep inducing technical arguments.

...Really what this comes down to, is the ability of the prosecutor to unabashedly appeal to emotion while dismissing technical merit, vs the ability of the defense to quash these appeals with logic and fact....

Perhaps, but still the outcome isn't guaranteed. Why invite the problem and the uncertainty? If you're on trial there will be a lot for you to argue about without adding the magazine disconnect to the mix. You could have avoided that by not messing with the gun or by choosing a different type of gun that would have served just as well.

To answer why did I buy a gun with a defective design and modify it, I could argue its like buying a gun with fixed sights and installing adjustable sights or buying a gun with wood grips and installing Pachmyrs....

Of course changing sights or grips isn't likely to elicit the same visceral reaction from even ordinary "non-gun" folks as "HE DISABLED A SAFETY DEVICE installed by the manufacturer....."

 

[Captain38]

It's my understanding that MOST law enforcement agencies purchasing makes of handguns for which magazine safeties (such as S&W) are optional equipment choose to buy them WITHOUT that particular device in place.

The reason is because LEOs supposedly consider it better, should they inadvertently drop the mag out of the grip during a gunfight, to have a ONE SHOT firearm than a NO SHOT firearm!

Incidents do happen where an officer was able to INTENTIONALLY drop the mag thereby disabling the handgun when it was about to be taken from him, but seem to be EXTREMELY rare!

 

[SMMAssociates]

One thing to watch for....

If somebody DOES ask about sights, or Pachmayrs, or even a laser, the correct answer is NOT "because they're more comfortable" or even "they're more accurate". It's "These are installed by the thousands, where the manufacturer doesn't already supply them, to enable people like me to better control the weapon, so that if I am forced to defend myself, I can be more careful/certain about where my shot is going to go."

Don't get your level of training or weekly (or daily ) range sessions get into the act. They'll try to turn that against you, too.

A good lawyer should be able to deal with the "didn't know that it was disabled" issues, but your own level of expertise may be a problem in questions like "why didn't you know about and fix that?" "The manufacturer makes that model without the magazine safety for Law Enforcement" may also be helpful.

Regards,

 

[Frank Ettin]

It's my understanding that MOST law enforcement agencies purchasing makes of handguns for which magazine safeties (such as S&W) are optional equipment choose to buy them WITHOUT that particular device in place....

I was not aware that "delete magazine disconnect" was an available LE option with Smith & Wesson. Do you have a citation?

It was also my understanding that various LE agencies that issued S&W 3rd generation auto-loaders liked the magazine disconnect because it gave the officer the option of releasing the magazine if he was at risk of having his gun taken from him.

In any event, the utility of a magazine disconnect is also a debatable point. California now requires a magazine disconnect on any pistol as a condition of being added to the "safe handgun" list to be approved for sale after 1 January 2007. That could certainly be useful for convincing a jury that a gun without a magazine disconnect should be considered "unsafe."

And again, the issue isn't as much that guns are available without a particular safety device. It's that by your removing a safety device already installed on a gun by the manufacturer, you have demonstrated your inclination toward reckless behavior.

 

[ConstitutionCowboy]

[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).

Not to be too picky here, but disabling a magazine disconnect would have no effect on the operation of such a gun as long as the gun was used with the magazine installed. Seems to me that making note in a trial that this particular "safety" devise was disabled would be immaterial unless the gun was used with the magazine removed, and even then it would still have to be proven that the discharge of the gun was not intended. It would be just as exculpatory as if the gun was used in that magazine removed and disconnecter disabled condition in a self defense when the only round of ammo available was the one in the chamber and was used successfully. With the magazine removed and the disabler intact, that round would have been useless.

[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.

Agreed. And I believe that with no evidence of malice - it was a "good shoot" - the destruction of a defendant's character will only serve to expose the prosecution as being ambitious, biased, and over-zealous. (Did you really mean to include "ambitious" with "capable"?)

As for the reloaded ammo issue(off topic), I agree to a point. I only carry factory ammo for the reliability. The successful use of reloaded ammo in self defense shouldn't be an issue unless the ammo was weakly loaded and ineffective. Even then, what difference would that make when the choice of caliber can be equally ineffective?

[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).

You'll get little argument from me here. The only argument I'd be willing to "add" is the disabled magazine disconnect. A magazine disconnect has the ability to render a gun useless if the magazine is inadvertently ejected accidentally or during a close quarters firefight. It's still loaded but useless except as a bludgeon. It could make the difference between your life or your death.

I would just say, if you don't like the way your gun works. get a different gun.

That solves it all!

One may argue, as one poster did, that one removed the device because he thought it constituted faulty design. But this leaves whomever makes that argument open to the rejoinder, "Mr. Defendant, if you're such a gun expert that you know more about gun design than the engineers who designed the pistol in question, and know more about it than the gun factory that made it -- WHY DID YOU BUY A GUN YOU THOUGHT HAD A DEFECTIVE DESIGN IN THE FIRST PLACE?" That's gonna be a tough one to answer.

My response would be that the original design is neither a faulty design nor make it a defective gun. Other guns with similar operating systems are built without such devises. It ends up being a personal choice. I would further state that I chose such a gun because it fit my hand better, or I liked other features the gun possessed over features other similar guns have. I would state that the removal of the disconnecter made it mechanically equal to and no less safe than other similar guns that are just as acceptable for use in self defense. (I would love to add that it is mostly a "politically correct" feature, but I doubt that would have much sway with a jury made up of people with dubious knowledge of firearms.)

As has been stated here, I, too, believe that a magazine disconnect can lead to a bad habit of relying on it especially when most guns don't have such a feature, and a gummed up gun with one can fail to operate as designed.

The other side gets a powerful, resonating sound bite: "This man was so reckless in his wanton disregard for human life that he USED A WEAPON WITH A DEACTIVATED SAFETY DEVICE!" And for some here, the sound bite would be even harsher: "HE, HIMSELF, DELIBERATELY DEACTIVATED THE SAFETY DEVICE ON A LETHAL WEAPON!"

My response would be that disconnecting the device did not make the gun potentially any more lethal than when loaded with a full magazine nor any less safe during handling than when observing normal safe handling procedures. The devise only comes into play during times when the gun is being unloaded. It plays no other part in the keeping, bearing, handling, aiming, and discharging of the gun except to limit its full potential to serve defensively with the magazine removed.

It was also my understanding that various LE agencies that issued S&W 3rd generation auto-loaders liked the magazine disconnect because it gave the officer the option of releasing the magazine if he was at risk of having his gun taken from him.

I'd rather the officer pull the trigger on the criminal before it comes to that. The gun becomes an effective bludgeon damn near as lethal as the bullets it discharges. Not only that, it usually takes awkward handling of a gun to reach the magazine release. I would think it easier to take the gun out of battery.

.

And again, the issue isn't as much that guns are available without a particular safety device. It's that by your removing a safety device already installed on a gun by the manufacturer, you have demonstrated your inclination toward reckless behavior.

Here again, I'd point out that the magazine disconnecter only comes into play during the unloading of the gun and adds no measure of safety during the normal keeping, bearing, handling, and discharge of the arm.

Respectfully,

Woody

 

[bigfatdave]

I'd rather the officer pull the trigger on the criminal before it comes to that. The gun becomes an effective bludgeon damn near as lethal as the bullets it discharges. Not only that, it usually takes awkward handling of a gun to reach the magazine release. I would think it easier to take the gun out of battery.

Every time I point that out, the resulting argument is "if it saves the life of one officer ..."
Sound familiar?

 

[Yo Mama]

The purpose of a magazine disconector (safety) is to protect a user against their own stupidity or ignorence

What?

I'm not stupid, or ignorent. And i hate magazine disconector safeties.

 

[Captain38]

Fiddletown,

The best I can do is give you two examples of S&W M&P pistols which are available as LE models WITHOUT magazine safeties: (1) those M&P45 pistols issued to the New Hampshire State Police, and (2) my personally owned M&P40!

 

[Frank Ettin]

Not to be too picky here, but disabling a magazine disconnect would have no effect on the operation of such a gun as long as the gun was used with the magazine installed....

Woody, apparently you haven't been paying attention, but that's not the point.

And I believe that with no evidence of malice - it was a "good shoot" ...

No, manslaughter is criminal homicide without malice. Malice is an element of murder. If the charge is manslaughter malice is not an issue.

What makes a "good shoot" would be a determination that the homicide you committed was justified. But if you're on trial, the DA and/or grand jury did not think it was a "good shoot." If the grand jury indicted, it found probable cause to believe a crime had been committed and that you did it. So the grand jury didn't buy your claim of self defense. If the DA files charges, it means that he concluded that he could overcome any evidence you put forward that you acted in legitimate self defense. In either case, it's now not a "good shoot" until the jury says so.

You have effectively already admitted all the material facts that comprise manslaughter and that the prosecutor would ordinarily have to prove; you were there; you shot the man; and you intended to shoot him. You are claiming that you were justified in shooting him. You will have to make a prima facie case of justification with the jury, so it's going to help you if the jury thinks well of you and is prepared to credit your story.

The prosecutor needs to undermine your claim of justification, so it's in his best interests to make you look like a reckless, trigger happy gun nut to the jury. Things you might have done, like disabling a safety device on your gun, make it easier for him to do so. Why do you want to do anything that might help your prosecutor?

...A magazine disconnect has the ability to render a gun useless if the magazine is inadvertently ejected accidentally or during a close quarters firefight. It's still loaded but useless except as a bludgeon. It could make the difference between your life or your death....

Yes, we here all know that. But it just not likely to make much of an impression on Suzi Soccermom and her friends on your jury.

Remember that they're a bunch of people with little or no interest in or knowledge of guns. They are inclined to have the fear of guns that comes from unfamiliarity. They're not focusing on your little arcane point of tactics. They're still trying to wrap their minds around the fact that you, fiend that you are, disabled a safety device on your personal instrument of destruction.

(For the reason you mentioned, I don't like a magazine disconnect on a gun I might use for self defense. That's why I choose only types of guns never made with such gadgets.)

But to cut to the chase, you've outlined a bunch of very valid reason why amongst folks knowledgeable about guns or willing to learn removing a magazine disconnect should not matter. BUT in a real life trial, you would be trying to make your pitch to folks unsophisticated in the ways of weapon craft. Many will intuitively react with horror at the very thought of someone actually, voluntarily turning off a safety device on a lethal weapon.

While the words of the prosecutor, ""This man was so reckless in his wanton disregard for human life that he USED A WEAPON WITH A DEACTIVATED SAFETY DEVICE!" ... "HE, HIMSELF, DELIBERATELY DEACTIVATED THE SAFETY DEVICE ON A LETHAL WEAPON!" ring in their ears, you would expect them to sit and absorb a little lecture about why it's not a big deal. The words "uphill fight" and "tough sell" immediately come to mind.

 

[Frank Ettin]

The best I can do is give you two examples of S&W M&P pistols which are available as LE models WITHOUT magazine safeties...

Thank you. I see that now. It doesn't appear to be an option with the 3rd generation (metal frame) models however. I'm not sure that any agencies around here are issuing the M&P yet, although it may be authorized. I believe that the California Highway Patrol and perhaps some other agencies are still issuing the 3rd generation guns, and I know that the guns issued to the CHP have the magazine disconnects.

 

[jerkface11]

Chances are the police would never even check to see if the gun they take off you has a mag safety. And if they did they probably wouldn't know it was supposed to.

 

[Frank Ettin]

Chances are the police would never even check to see if the gun they take off you has a mag safety. And if they did they probably wouldn't know it was supposed to.

You want to bet? How much? Your freedom?

 

[SMMAssociates]

The magazine disconnect is also an early form of what's now referred to as the "Hilary Lock".... You can (allegedly) drop the magazine and the kids won't figure out how to make it fire....

They haven't met my kid....

But WTH - when you let PC and lawyers design your laws or hardware, common sense seems to be left out of the equation.

Let's also not forget that juries are often made up of people who didn't have the pull to get out of it.... Finding a juror who knows anything about anything more complex that "an evil gun was used" may be unlikely.

Regards,

 

[massad ayoob]

As Fiddletown noted, some folks aren't reading the posts of the others and are debating the wrong arguments with the wrong people.

Ain't about what we gun people think here. It's about what a jury is likely to think after hearing predictable arguments.

And, Jerkface11, you might want to revisit Sun Tzu. There ain't too many people who win conflicts by assuming their opponent is going to be incredibly stupid.

 

[SMMAssociates]

Mas:

IMHO, the Police won't check that disconnector until somebody (presumably the Prosecutor's people) request it, as part of a "dirty trick" like we've been kicking around.

However, getting the jury to understand may be the real test of the defense lawyer's skills....

And, Jerkface11, you might want to revisit Sun Tzu. There ain't too many people who win conflicts by assuming their opponent is going to be incredibly stupid.

However, that's something to teach your kids as new drivers: "Assume that the other guy is about to do something incredibly stupid." THAT, you may win....

(However Sun Tzu probably added: "Be prepared to act appropriately if the opponent actually is...." Hm.... Didn't I just say that .)

Regards,

 

[massad ayoob]

Stu, I have to respectfully disagree. It's standard protocol for the gun involved in a shooting to go to the Firearms and Toolmark Examiners in the crime lab, who early on determine whether the pistol is in "proper working order" and whether all safety devices on it are functional.

I see the assumption that strangers may do stupid things that endanger us as something different from the assumption that a declared opponent will be stupid. YMMV.

Cordially,
Mas

 

[Frank Ettin]

And even if a declared opponent may on occasion do something stupid, do you really want to count on it? And Mr.Murphy says, "Even a stupid opponent may well get smart just in time to do you the most harm."

If your opponent does make a mistake, be prepared to exploit it; but don't bank on him being dumb.

 

[kyo]

ok, politically it will kill me. got it. no mod. and the mag safety doesn't actually affect me owning the gun. I know how to take care of it just fine, its just an option.
Didn't think it would make all this ruckus. Thanks for the replies, they are very enlightening.
Mas that case sounds horrible. I woulda tried my damned hardest to make the Browning inadmissible.

 

[SMMAssociates]

Stu, I have to respectfully disagree. It's standard protocol for the gun involved in a shooting to go to the Firearms and Toolmark Examiners in the crime lab, who early on determine whether the pistol is in "proper working order" and whether all safety devices on it are functional.

Mas:

IF the gun is given to the proper "examiners".... I don't trust anybody....

I see the assumption that strangers may do stupid things that endanger us as something different from the assumption that a declared opponent will be stupid. YMMV.

Nitpicking .... But you're correct. Still a good "fit" - never assume the opponent is stupid, but always assume the other driver is....

As a professional, you MUST try to be precise in your statement. I have a little more luxury. Disagreeing with me is required.

Regards,

 

[Captain38]

My bad! The original press release from S&W indicates that NHSP INSISTED their M&P45 pistols come WITH mag safeties!

 

[Carl N. Brown]

It was also my understanding that various LE agencies that issued S&W 3rd generation auto-loaders liked the magazine disconnect because it gave the officer the option of releasing the magazine if he was at risk of having his gun taken from him.

As a civilian, my concern in having a sidearm when I am off in Bear Hollow is a rabid animal or a pack of feral dogs (which I have encountered), none of whom I fear taking my gun from me. I would fear being in the woods and losing a magazine in tall weeds with a round in the chamber and something mean and nasty in the woods snarling in my direction. That is one reason why I have carried a Mark II Ruger, .45 1911 or CZ52 all without a magazine safety and would disable a magazine safety if it were present and disabling it were an option.

My home defense ready guns are a .38 revolver, a .357 revolver and a pump-action 12ga shotgun, so magazine safety on home defense gun might be a non-issue, unless I have to defend myself with one of the selfloaders.

Would a public defender be able to get across to a selected non-gunny jury that a magazine safety is debatable as a safety device and expert opinion is divided? That question is almost as scary as the prospect of being in the woods and losing a magazine in tall weeds with a round in the chamber and something mean and nasty in the woods snarling in my direction, but maybe slightly more remote.