Legal ramifications for removal of mag safety
- Thread starter kyo
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The purpose of a magazine disconector (safety) is to protect a user against their own stupidity or ignorence; if they eject a cartridge, chamber a second one, remove the magazine, and think the pistol is unloaded. Unforunately this happens all to often, but I don't see where one would incur any legal liability unless they let someone else use the pistol and they didn't know about the altered disconector.
Another remote possibility might be if the pistol owner accidentally (or on purpose), shot somebody and it was claimed by someone that the shooting was unintentional, but happened because of the altered disconector.
All of this would be a hard sell, but some lawyer might try it, and in some anti-gun states or cities they might find a jury that believed them.
I have occasionally removed a magazine disconector and not worried about it. But I don't live where I'm likely to get in trouble. If I was in places Like New York or California I might think twice.
Another remote possibility might be if the pistol owner accidentally (or on purpose), shot somebody and it was claimed by someone that the shooting was unintentional, but happened because of the altered disconector.
All of this would be a hard sell, but some lawyer might try it, and in some anti-gun states or cities they might find a jury that believed them.
I have occasionally removed a magazine disconector and not worried about it. But I don't live where I'm likely to get in trouble. If I was in places Like New York or California I might think twice.
bigfatdave
Member
but it sounds like a long shot.
Having a mag interlock doesn't preclude responsible gun handling, of course.
I might not sell a pistol with the magazine interlock deleted unless there was a non-liability clause on the bill of sale, but I don't see the value for the general public.
Can it be re-installed after removal?
ConstitutionCowboy
member
It would have happened because someone pulled the trigger. It would be no different if the gun were not equipped with a magazine disconnecter to begin with.
Woody
Megistopoda
Member
If you truly live in Atlanta, then there would be nothing illegal about such a removal.
You know that, and I know that....
But if someone lived in the wrong place, and some lawyer or State's Attorney was out for blood, and if they got a jury filled with urban anti-gun types....
I wouldn't bet the farm...
Now in Arizona...
HankB
Member
An argument can be made that removing a magazine disconnect is upgrading the pistol to the standards of modern firearms such as those most favored by police (Glocks) and the military (Beretta M9), neither of which have magazine disconnects.
This stuff never seems to end.
I'm a lawyer retired after over 30 years in practice. I therefore have some first hand understanding of how the legal system works. And I will not disable a safety device in a handgun I will use for self defense. (I won't use handloads for self defense either.)
[1] First, we really have to get over this "a good shoot is a good shoot" business. If you are on trial after a self defense shooting, someone doesn't think it was a "good shoot." Either the DA decided that he had something to prosecute or the grand jury concluded that there was probable cause to believe that a crime had been committed and that you did it. There is a dispute about whether the shooting was justified, and determining whether it was a "good shoot" is now going to be up to the judge and/or jury.
[2] As a lawyer, I have seen how juries can be influenced by any number of factors. We know for example, from post verdict juror interviews that at least some of the jurors in the Harold Fish case were troubled by his use of JHP ammunition. Of course the notion that there was "something wrong" with Mr,. Fish for using that sort of ammunition was planted in the minds of the jurors by the prosecutor, and not effectively dealt with by the defense. And since JHP ammunition is more effective, we still recommend its use for self defense and hope, if the need arises that our defense will be able to deal with the issue. Nonetheless, the Harold Fish case is an example of how something like the kind of ammunition used in a self defense encounter can affect the thinking of members of a jury. (Mr. Fish won his appeal, but last I heard, the State may try to take the case up to the Arizona Supreme Court.)
[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.
[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). Any capable prosecutor is going to, first of all, be excluding from the jury anyone who has any interest in, or knowledge of, guns. If he can get some folks on the jury who are a little afraid of guns, so much the better. A least a few of such jurors are likely to be uncomfortable with the fact that you tinkering with your gun, or the you have tinkered with your gun, or the mere fact that your hobby is guns or shooting. Some of the jurors may even have personal doubts about whether a private citizen should even be allowed to have a gun. People unfamiliar with guns tend to have an exaggerated fear of them and are likely to see it as reckless to remove a safety device fitted by the manufacturer. Do you claim to know better than the company that made your gun?
[5] Remember also that a plea of self defense is different from most other defenses to a criminal charge. In general, the common defense to a criminal charge is essentially, "I didn't do it, and you can't prove that I did." But when you plead self defense, the first thing that you have effectively done is admitted that you did it. You must essentially say, "I shot the man." And the essence of the claim of self defense is, "But I was justified in shooting him."
[6] Because of the nature of a self defense plea, how the jury sees you can be very important. You will want them to be willing to accept your claim that you were justified in performing an act that is generally, in good society, repugnant -- an act of extreme violence against another human being resulting in the injury or death of that human being. He may have been a criminal with a long history of violence, BUT in most cases any evidence to that effect will be inadmissible.
[7] Yes, we know that the jury is supposed to decide on the basis of the evidence, not how they feel about you. But we also have to accept the fact that a juror's emotional perception of a witness will affect the credibility and weight given to his testimony. I've had jurors tell me in post verdict interviews, that they didn't trust this witness or that they believe that witness because of personal characteristics of the witness that they either thought ill of or thought well of. That is the real world.
[8] At a trial, at the end of the presentation of evidence, each side gets to argue what the trier of fact should infer from the evidence. So a prosecutor might argue that a trier of fact should infer certain things about your character, your reckless disregard for safety and disposition for violence from the evidence that you modified the gun you used to remove a safety device that the manufacturer saw fit to incorporate.
[9] So Suzy Soccermom now asks herself, as she sits on your jury deciding whether to believe your story about what happened when you shot that nice gang member, why your gun wasn't lethal enough as it came from the manufacturer to satisfy your perverted blood lust. Remember, Suzi Soccermom and her friends are going to be deciding if the shoot was good.
[10] And yes we know that there don't seem to be any cases that illustrate all this. But then again, how many defensive uses of a gun result in the gun being fired? And how many defensive shootings result in a trial (many are in fact clean cut "good shoots")? And of those that go to trial, in how many has the defendant (claiming self defense) used a gun with a safety device removed (or handloaded ammunition or with a super light trigger)? I strongly suspect that the vast majority of people who keep and/or carry guns for self defense use stock guns and factory ammunition. In other words, the sorts of case we'd be looking for just doesn't happen often enough to be on radar.
[11] In the event of your having to use your gun for self defense, there will be things you can't control and those that you can. You really can't control how a violent encounter will unfold. You can control how you prepare and what your tools will be. It is, however, true that a prosecutor might try to use just about anything against you, like using JHP bullet or having had extensive training. But somethings, while they may have a downside in court, can give you an advantage on the street -- like training and JHPs. But something may have a downside in court without any countervailing advantage -- like handloaded ammunition or certain gun modifications (when guns that would be suitable without modification are available).
[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).
[13] Everyone gets to make his own decision, but I will not use a gun which has had a safety device disabled for self defense, nor will I use handloads or a gun with a super light trigger. I feel that I can provide for my defense without burdening myself with those sorts of legal wild cards.
fiddletown is online now Report Post
I'm a lawyer retired after over 30 years in practice. I therefore have some first hand understanding of how the legal system works. And I will not disable a safety device in a handgun I will use for self defense. (I won't use handloads for self defense either.)
[1] First, we really have to get over this "a good shoot is a good shoot" business. If you are on trial after a self defense shooting, someone doesn't think it was a "good shoot." Either the DA decided that he had something to prosecute or the grand jury concluded that there was probable cause to believe that a crime had been committed and that you did it. There is a dispute about whether the shooting was justified, and determining whether it was a "good shoot" is now going to be up to the judge and/or jury.
[2] As a lawyer, I have seen how juries can be influenced by any number of factors. We know for example, from post verdict juror interviews that at least some of the jurors in the Harold Fish case were troubled by his use of JHP ammunition. Of course the notion that there was "something wrong" with Mr,. Fish for using that sort of ammunition was planted in the minds of the jurors by the prosecutor, and not effectively dealt with by the defense. And since JHP ammunition is more effective, we still recommend its use for self defense and hope, if the need arises that our defense will be able to deal with the issue. Nonetheless, the Harold Fish case is an example of how something like the kind of ammunition used in a self defense encounter can affect the thinking of members of a jury. (Mr. Fish won his appeal, but last I heard, the State may try to take the case up to the Arizona Supreme Court.)
[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.
[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). Any capable prosecutor is going to, first of all, be excluding from the jury anyone who has any interest in, or knowledge of, guns. If he can get some folks on the jury who are a little afraid of guns, so much the better. A least a few of such jurors are likely to be uncomfortable with the fact that you tinkering with your gun, or the you have tinkered with your gun, or the mere fact that your hobby is guns or shooting. Some of the jurors may even have personal doubts about whether a private citizen should even be allowed to have a gun. People unfamiliar with guns tend to have an exaggerated fear of them and are likely to see it as reckless to remove a safety device fitted by the manufacturer. Do you claim to know better than the company that made your gun?
[5] Remember also that a plea of self defense is different from most other defenses to a criminal charge. In general, the common defense to a criminal charge is essentially, "I didn't do it, and you can't prove that I did." But when you plead self defense, the first thing that you have effectively done is admitted that you did it. You must essentially say, "I shot the man." And the essence of the claim of self defense is, "But I was justified in shooting him."
[6] Because of the nature of a self defense plea, how the jury sees you can be very important. You will want them to be willing to accept your claim that you were justified in performing an act that is generally, in good society, repugnant -- an act of extreme violence against another human being resulting in the injury or death of that human being. He may have been a criminal with a long history of violence, BUT in most cases any evidence to that effect will be inadmissible.
[7] Yes, we know that the jury is supposed to decide on the basis of the evidence, not how they feel about you. But we also have to accept the fact that a juror's emotional perception of a witness will affect the credibility and weight given to his testimony. I've had jurors tell me in post verdict interviews, that they didn't trust this witness or that they believe that witness because of personal characteristics of the witness that they either thought ill of or thought well of. That is the real world.
[8] At a trial, at the end of the presentation of evidence, each side gets to argue what the trier of fact should infer from the evidence. So a prosecutor might argue that a trier of fact should infer certain things about your character, your reckless disregard for safety and disposition for violence from the evidence that you modified the gun you used to remove a safety device that the manufacturer saw fit to incorporate.
[9] So Suzy Soccermom now asks herself, as she sits on your jury deciding whether to believe your story about what happened when you shot that nice gang member, why your gun wasn't lethal enough as it came from the manufacturer to satisfy your perverted blood lust. Remember, Suzi Soccermom and her friends are going to be deciding if the shoot was good.
[10] And yes we know that there don't seem to be any cases that illustrate all this. But then again, how many defensive uses of a gun result in the gun being fired? And how many defensive shootings result in a trial (many are in fact clean cut "good shoots")? And of those that go to trial, in how many has the defendant (claiming self defense) used a gun with a safety device removed (or handloaded ammunition or with a super light trigger)? I strongly suspect that the vast majority of people who keep and/or carry guns for self defense use stock guns and factory ammunition. In other words, the sorts of case we'd be looking for just doesn't happen often enough to be on radar.
[11] In the event of your having to use your gun for self defense, there will be things you can't control and those that you can. You really can't control how a violent encounter will unfold. You can control how you prepare and what your tools will be. It is, however, true that a prosecutor might try to use just about anything against you, like using JHP bullet or having had extensive training. But somethings, while they may have a downside in court, can give you an advantage on the street -- like training and JHPs. But something may have a downside in court without any countervailing advantage -- like handloaded ammunition or certain gun modifications (when guns that would be suitable without modification are available).
[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).
[13] Everyone gets to make his own decision, but I will not use a gun which has had a safety device disabled for self defense, nor will I use handloads or a gun with a super light trigger. I feel that I can provide for my defense without burdening myself with those sorts of legal wild cards.
fiddletown is online now Report Post
mljdeckard
Member
It SHOULDN'T matter. The jury and D.A. SHOULD have enough common sense to understand the difference between things that change the outcome of a fight and things that don't. The focus SHOULD be on why rather than how. I don't live in a perfec world. Do you?
Ayoob says never disable any safety device on a defensive gun, carry whatever ammo your local police carry. Clint Smith says, worry about surviving first, worry about the charges later.
Will it matter? Maybe? Low likelihood? Do you know for sure? Are you willing to bet your livelihood on it?
I would just say, if you don't like the way your gun works. get a different gun.
Ayoob says never disable any safety device on a defensive gun, carry whatever ammo your local police carry. Clint Smith says, worry about surviving first, worry about the charges later.
Will it matter? Maybe? Low likelihood? Do you know for sure? Are you willing to bet your livelihood on it?
I would just say, if you don't like the way your gun works. get a different gun.
NavyLCDR
member
AWWWW CRUD! Here we go AGAIN!
WardenWolf
member
It's entirely possible that some state or municipality has a law against "removal of a safety device" from a firearm, with the implication that disabling any built-in safety device renders a gun unsafe and thus places it in an illegal condition.
General Geoff
Member
It merely needs to be explained that such a device is in place for liability purposes ONLY, and is not a safety device per se, merely a device to make the gun non-functional when the magazine is out. Since the end user is ultimately responsible for where the bullets go, removing a magazine disconnect has no legal ramifications as long as the discharge is, in fact, intentional.
Now, say you were playing with your gun after removing the magazine disconnect, and you negligently pull the trigger, discharging a round through your wall, and hitting your neighbor. In this instance, removing the disconnect removes all doubt as to who is liable for your negligent discharge: You. And by disabling said disconnect, you effectively remove any possibility of suing the manufacturer for a design flaw ("the magazine was out, the gun shouldn't be able to go off!").
But that's the problem. Depending on where you are, and the background/beliefs/views of the judge and jury, explaining may not do any good. One would for example have a better chance "explaining" in Tucson, Arizona then Brooklyn, NY. Even Tucson wouldn't be a sure thing, but your odds would be much better.
You can get into the same sargument over disabling a grip safety. I have done it in the past, but been very careful where I carried that particular pistol.
It might be noted that Browning's first Colt pistols intended for military use had neither a manual or grip safety - and of course no magazine disconect. These sort of features were added later. But I would hate to try and explain that to a jury in Brooklyn...
DHJenkins
Member
So, in summation, trade the ruger in for something that doesn't have safeties.
rbernie
Contributing Member
We seem to do this discussion endlessly. Fiddletown is always very eloquent in describing an elaborate scheme whereby it might cause you harm. I cannot disagree with his motivations. However, he builds a scenario that is a gigantic 'if' statement, and (like most heavily nested conditionals) while it is possible to occur, it's likelihood is probably quite low. How low? Well, search Westlaw or Lexis. Last time I did this, we could find no citable case where a disabled magazine interconnect was raised as an issue. And, of course, like all conditional statements, there is a gating event that must occur to enter the conditional. In his case, it's the determination that the shoot needs to go to a trial. To use his words:
Finally - if you bought the weapon used, I fail to see any means by which you can be held accountable for the condition of the magazine interconnect.
But back to the OP's three questions:
2) It may have implications, but that theory is unproven. (See above). The question is really phrased as, "Which is more likely? The magazine being inadvertently released just when I need the firearm for lawful self-defense, or being brought up on charges for the shoot and having the magazine disconnect removal raised as an issue?" You get to decide that - not us.
3) It may be worth doing if you routinely have issues with the magazine catch dropping the magazine at the wrong time, or if the magazine interconnect interferes dramatically with the trigger operation.
I think that fiddletown is correct in reminding us that many shootings that claim self-defense go to trial, but we should also remember that most all folk that shoot each other also claim self-defense even if they're arguing over a girl/boy/drugs/whatever and engaged in mutual combat. My observation and derived belief is that the conditions under which most of us would be forced to defend ourselves using deadly force are unlikely to result in a jury trial. There are dramatic exceptions, and (to fiddletown's point, being the exception REALLY SUX), but they are exceptions nonetheless.
Finally - if you bought the weapon used, I fail to see any means by which you can be held accountable for the condition of the magazine interconnect.
But back to the OP's three questions:
1) I know of no jurisdiction in which removal of a magazine interconnect would be illegal, but that doesn't mean NO. You will need to review your state's laws on child safety locks, storage locks, and other references to handgun safeties and determine if there is any verbiage that precludes 'disabling a built in safety device'. If so - the magazine interconnect can likely be placed into that category and you should not remove it.
2) It may have implications, but that theory is unproven. (See above). The question is really phrased as, "Which is more likely? The magazine being inadvertently released just when I need the firearm for lawful self-defense, or being brought up on charges for the shoot and having the magazine disconnect removal raised as an issue?" You get to decide that - not us.
3) It may be worth doing if you routinely have issues with the magazine catch dropping the magazine at the wrong time, or if the magazine interconnect interferes dramatically with the trigger operation.
thanks fildletown, your explanation is great. I really hate to agree with you, but those tactics you described are tried and true. But then again I don't know what kind of decent defense lawyer would let 12 people who are scared of guns judge me. anyway, thanks for the info.
and i didn't know this was going to start something again i was just really curious.
and to answer your question fiddletown, the P345 mag disconnect has made the gun have problems, where if you dry fire it without a mag, it can break the firing pin, or make a "click no bang" problem. I have never experienced this nor do I want to, so I don't ever dry fire without a mag in place. but If I had to say that I know better than the company, I would say yes because the gun was made faulty by said company.
not trying to start anything, just explaining my point of view.
and i didn't know this was going to start something again i was just really curious.
and to answer your question fiddletown, the P345 mag disconnect has made the gun have problems, where if you dry fire it without a mag, it can break the firing pin, or make a "click no bang" problem. I have never experienced this nor do I want to, so I don't ever dry fire without a mag in place. but If I had to say that I know better than the company, I would say yes because the gun was made faulty by said company.
not trying to start anything, just explaining my point of view.
General Geoff
Member
From what I understand, the statement need not even be an argument of fact; it merely needs to be what the defendant believes to be fact, prior to and during the shoot.
dogtown tom
Member
So.........removing a magazine disconnect is okay, but if I remove the magazine safety I'm gonna do time? 
Carl N. Brown
Member
INAL but I do have a PC on the internet
This may be off-topic (removal of mag safety as seen in court), but I still feel that magazine safeties encourage unsafe handling of magazine fed handguns: the drill should be (a) remove magazine (b) clear chamber and (c) visually inspect the chamber. But with a magazine safety, slackers can "safely" forget about the round in the chamber--until a magazine loaded or empty is re-inserted and then you have a "forgotten chambered round" accident ready to happen.
If I were on a jury, whether the mag safety were disabled or not would be irrelevant, since many current production firearms do not have magazine safeties because there are good arguments against a "safety" device that can encourage unsafe behavior. The issue should be what was the motive and intent of the user. Jury instructions should be that self-defense is acting out of fear of imminent death or greivous bodily harm if the defender does not act then and there. Style of gun should be as irrelevant as style of footwear.
Oh, and self defense stats. The FBI UCR table on "justifiable homicide" reflects police reports and the UCR states it does not reflect later adjudication by medical examiner, coroner, district attorney, grand jury, trial judge, trial jury, or appellate court. Marvin Wolfgang wrote that when and where stats on subsequent adjudication were kept, 20 or 30 percent of homicides were self-defense. Gary Kleck has estimated that the number of justifiable homicides is actually four to seven times the number in the UCR table which typically shows about 170 per year. How many times does a district attorney decide not to press charges because a shooting was justifiable? How many times does a grand jury return no bill because a shooting was justifiable? No one knows because the stats are not being kept in a clear or consistent manner. We are making life and death decisions in the dark.
How many times does an adjudication of self-defense depend on the issue of a disabled magazine safety, "unusual" ammo, lightened trigger pull? There are individual cases in each category including a self-defense with a machinegun that an ambitious prosecutor took when other prosecutors passed because they felt it was clearly self-defense. Such cases would only be statistically significant if it was your case. Do you feel lucky?
This may be off-topic (removal of mag safety as seen in court), but I still feel that magazine safeties encourage unsafe handling of magazine fed handguns: the drill should be (a) remove magazine (b) clear chamber and (c) visually inspect the chamber. But with a magazine safety, slackers can "safely" forget about the round in the chamber--until a magazine loaded or empty is re-inserted and then you have a "forgotten chambered round" accident ready to happen.
If I were on a jury, whether the mag safety were disabled or not would be irrelevant, since many current production firearms do not have magazine safeties because there are good arguments against a "safety" device that can encourage unsafe behavior. The issue should be what was the motive and intent of the user. Jury instructions should be that self-defense is acting out of fear of imminent death or greivous bodily harm if the defender does not act then and there. Style of gun should be as irrelevant as style of footwear.
Oh, and self defense stats. The FBI UCR table on "justifiable homicide" reflects police reports and the UCR states it does not reflect later adjudication by medical examiner, coroner, district attorney, grand jury, trial judge, trial jury, or appellate court. Marvin Wolfgang wrote that when and where stats on subsequent adjudication were kept, 20 or 30 percent of homicides were self-defense. Gary Kleck has estimated that the number of justifiable homicides is actually four to seven times the number in the UCR table which typically shows about 170 per year. How many times does a district attorney decide not to press charges because a shooting was justifiable? How many times does a grand jury return no bill because a shooting was justifiable? No one knows because the stats are not being kept in a clear or consistent manner. We are making life and death decisions in the dark.
How many times does an adjudication of self-defense depend on the issue of a disabled magazine safety, "unusual" ammo, lightened trigger pull? There are individual cases in each category including a self-defense with a machinegun that an ambitious prosecutor took when other prosecutors passed because they felt it was clearly self-defense. Such cases would only be statistically significant if it was your case. Do you feel lucky?
massad ayoob
Member
- Joined
- Dec 7, 2005
- Messages
- 374
A search of caselaw databases under topics such as "magazine disconnector" are unlikely to turn up anything. Caselaw is made of appealed issues. Shootings with modified guns are rare. Moreover, courts tend to leave this sort of argument within the realm of attorney and trial judge discretion.
If the charge is manslaughter or reckless endangerment, or the lawsuit revolves around negligence, the accusing side is absolutely allowed to establish "continuing patterns of negligent or reckless behavior," and removing safety devices from lethal weapons lands square in that ballpark.
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.
As noted, because most folks don't remove safety devices from handguns, this rarely comes up. The one case I've seen was one I was consulted on a number of years ago by Mark Seiden, the prominent Miami defense attorney. His client was charged with manslaughter relating to the accidental discharge of a factory stock Colt Commander. The discharge took place in an office, making the entire office area a crime scene, including the parking lot. The client's car was searched, and police recovered a Browning Hi-Power the defendant kept loaded in the vehicle. He had bought it used, the magazine disconnector safety already removed, and had left it in that condition. The assigned prosecutor made a huge deal over this, claiming that it showed a propensity to do reckless and negligent things with loaded weapons, even though that gun was in no way involved in the death in question.
Notice that even though the gun was in that condition when he bought it second hand, the State was prepared to argue that this was no excuse: the man was still using, for defensive purposes presumably, a lethal weapon with a safety device removed.
Mark got the guy a good plea deal, and has asked me to spare his client further humiliation by not mentioning his name. Out of respect to Mark, I've agreed to that stipulation. However, anyone can contact Attorney Mark Seiden in Miami, FL and confirm the nature of the case.
There are also, of course, several liability lawsuits against manufacturers arising out of accidental shootings which allege negligence in not producing the guns with a magazine disconnector. While I personally consider that another matter, it shows that "the absence of this device as an indicator of negligence" is a concept that's definitely on the collective radar screen of plaintiff's bar.
Cordially,
Mas
If the charge is manslaughter or reckless endangerment, or the lawsuit revolves around negligence, the accusing side is absolutely allowed to establish "continuing patterns of negligent or reckless behavior," and removing safety devices from lethal weapons lands square in that ballpark.
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.
As noted, because most folks don't remove safety devices from handguns, this rarely comes up. The one case I've seen was one I was consulted on a number of years ago by Mark Seiden, the prominent Miami defense attorney. His client was charged with manslaughter relating to the accidental discharge of a factory stock Colt Commander. The discharge took place in an office, making the entire office area a crime scene, including the parking lot. The client's car was searched, and police recovered a Browning Hi-Power the defendant kept loaded in the vehicle. He had bought it used, the magazine disconnector safety already removed, and had left it in that condition. The assigned prosecutor made a huge deal over this, claiming that it showed a propensity to do reckless and negligent things with loaded weapons, even though that gun was in no way involved in the death in question.
Notice that even though the gun was in that condition when he bought it second hand, the State was prepared to argue that this was no excuse: the man was still using, for defensive purposes presumably, a lethal weapon with a safety device removed.
Mark got the guy a good plea deal, and has asked me to spare his client further humiliation by not mentioning his name. Out of respect to Mark, I've agreed to that stipulation. However, anyone can contact Attorney Mark Seiden in Miami, FL and confirm the nature of the case.
There are also, of course, several liability lawsuits against manufacturers arising out of accidental shootings which allege negligence in not producing the guns with a magazine disconnector. While I personally consider that another matter, it shows that "the absence of this device as an indicator of negligence" is a concept that's definitely on the collective radar screen of plaintiff's bar.
Cordially,
Mas
rbernie
Contributing Member
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?
ETA - a minor nit, but:
ETA - a minor nit, but:
It was my understanding that some sources, such as Justia, carried both District Court as well as appelate findings. But your point overall is valid - using an electronic search mechanism to validate/invalide a given POV is probably not going to provide much joy if evaluated critically, due to the nature of how these things work out.
I don't own anything with mag disconnect, but...
Many, many guns do not have this defect, and simply correcting the defect rendered a gun that is perfectly safe in my experience, since all my other handguns don't have it. After all: Why is it that most handguns manufactured without the defect are considered perfectly safe, especially when no laws in this state require it?
I wouldn't answer it, but perhaps not so tough for some folk. They might answer:
Many, many guns do not have this defect, and simply correcting the defect rendered a gun that is perfectly safe in my experience, since all my other handguns don't have it. After all: Why is it that most handguns manufactured without the defect are considered perfectly safe, especially when no laws in this state require it?
SMMAssociates
Member
Mas:
I think you and others have raised a couple of interesting points....
There are prosecutors out there who are "the enemy".... No matter how you stand on "Civilian" carry, they're going after working LEO's, too, over nonsense.
Secondly, it's probably unwise to assume that a Jury will understand all but the basics of one of these arguments. Even if you're a serious gun owner, with decades of experience, that mag safety could decide to take the afternoon off. Even if it's working the next day, there are some presumptions active here that many people won't understand, even if presented with a pile of PowerPoint slides....
The Fish case is one wherein the defendant had a "seriously over-powered handgun" with the "intent to kill people".... Nonsense to US, but the Jury bought it, AND, the Prosecutor chose to make that argument. How the heck can he sleep at night?
Makes you wonder about the people who get elected (or appointed)....
I agree that removing a manufacturer-supplied safety device is a bad idea - gas on the fire.... However, the Prosecution's use of that BHP in the car (in the case Mark Seiden asked you to help with) is an abuse of power if nothing else. Getting people like that Prosecutor out of the game should be a very high priority....
Just IMHO, of course....
Regards,
I think you and others have raised a couple of interesting points....
There are prosecutors out there who are "the enemy".... No matter how you stand on "Civilian" carry, they're going after working LEO's, too, over nonsense.
Secondly, it's probably unwise to assume that a Jury will understand all but the basics of one of these arguments. Even if you're a serious gun owner, with decades of experience, that mag safety could decide to take the afternoon off. Even if it's working the next day, there are some presumptions active here that many people won't understand, even if presented with a pile of PowerPoint slides....
The Fish case is one wherein the defendant had a "seriously over-powered handgun" with the "intent to kill people".... Nonsense to US, but the Jury bought it, AND, the Prosecutor chose to make that argument. How the heck can he sleep at night?
Makes you wonder about the people who get elected (or appointed)....
I agree that removing a manufacturer-supplied safety device is a bad idea - gas on the fire.... However, the Prosecution's use of that BHP in the car (in the case Mark Seiden asked you to help with) is an abuse of power if nothing else. Getting people like that Prosecutor out of the game should be a very high priority....
Just IMHO, of course....
Regards,
General Geoff said:
Too "inside baseball" to resonate with non-gun oriented jurors. These kind of technical arguments are hard to get across to a jury. Remember that the prosecutor is going to be excluding from the jury folks you know about, or have an interest, in guns.Carl N. Brown said:
A word about jury selection --
You start with a group of people. The prosecution and defense each asks questions of the prospective jurors, and each side gets to challenge (i. e., have removed) people he doesn't want on the jury. Challenges can be either for cause, i. e., when a prospective juror has expressed or demonstrated a clear prejudice, or peremptory, i. e., without cause (just because I feel like it). Each side has a specified number of peremptory challenges.
Now, while going through voire dire, the process of questioning prospective jurors, the prosecutor will be using his peremptory challenges to remove anyone who is an IPSC competitor or who has gone to Gunsite or has a gun, etc. And indeed, the prosecutor might even be able to successfully challenge some of those folks for cause and not have to use some of his peremptory challenges. (My wife, as a prospective juror, was once successfully challenged for cause by the defense in an armed robbery trial when she said that she was an NRA member and had strong negative feelings about someone misusing a gun for criminal activity.)
In the meantime, the defense will be kicking off the jury the Brady Campaign contributors and those who think guns should be banned.
So when this process is all done, who is going to be left on the jury -- a bunch of folks who are middle of the road, fence sitters, people not necessarily virulently anit-gun, but probably with no special knowledge of, or interest in guns. At least a few, and maybe many, of your jurors may have never even fired a gun. 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.
Carl N. Brown said:
So, Carl, it's unlikely that you'd be on the jury in this kind of case. And yes, kyo, your lawyer will be trying to limit the number of people on your jury who are down right scared of guns, but there's no guarantee he'll be able to avoid such jurors entirely.kyo said:
Yes, but the jury will get to infer that from all available factors. And conclusions the jury reaches about the defendant's character will affect how they evaluate the available evidence in the process of making those inferences.Carl N. Brown said:
Let's consider in a little more detail what the defense of "self defense" means.
Ordinarily, in a criminal prosecution the state must prove the elements of the criminal offense beyond a reasonable doubt. So if the crime charged, and for which the defendant is on trial, is manslaughter, the state must in general prove to the jury beyond a reasonable doubt that (1) the defendant was there; (2) the defendant shot the decedent; and (3) the defendant intended to shoot the decedent. In defending the charge, the defendant merely needs to create a reasonable doubt in the minds of the jurors as to any one of these elements. The defendant can try to cast doubt on the state's claim that he was there (alibi defense); that he pulled the trigger (some other dude done it) or that he intended to shoot the decedent (the gun went off by accident). But all of that is completely inapplicable when the defendant pleads self defense.
If you claim self defense, the prosecution doesn't have to prove, at all, that you were there, that you shot the decedent or that you intended to shoot the decedent, because you will have admitted each of those element of the crime of manslaughter. If you are claiming self defense you necessarily must admit that you (1) you were there; (2) you shot the decedent; and (3) you intended to shoot the decedent. You have made a prima facie case against yourself for the prosecutor, and he doesn't have to prove any of the things he ordinarily would have to prove beyond a reasonable doubt. You have admitted it all.
Your defense is that your act of violence on another human being was legally justified. The allocation of the burden of proof burden of persuasion between the prosecution and defense in a self defense case varies from jurisdiction to jurisdiction. But you will at least have to put forward evidence establishing a prima facie case of justification according to the standard applicable to the use of lethal force in self defense in your jurisdiction.
Since you are claiming self defense, you will need to tell your story, and that puts your credibility at issue. And since the essence of a claim of self defense is the reasonableness of your perception and judgment that you were in immediate jeopardy. And of course, your lawyer will probably want to introduce evidence of your good character and judgment. All that arguably opens things up for the prosecutor to introduce evidence that might call into question your judgment -- such as the fact that you disabled a safety device to make your gun, in your view, a more efficient engine of destruction.
So if, as is likely, you'll want to introduce evidence for the proposition that you are a peaceful person who reasonably believed you had no options but to shoot another human to save your own life, it's going to be tough for the judge not to let the prosecution introduce evidence that might suggest that in fact you were of a reckless and trigger happy disposition.
And as Massad Ayoob has pointed out, above
massad ayoob said:
Sounds like a good reason to choose a different gun for self defense.kyo said:
As a general rule in any litigation, the less you have to explain the better. Remember, a prosecutor is not going to be prosecuting you if all he has is that you disabled a safety device. If you're being prosecuted, you will have enough problems with your situation that the DA figures he'll be able to get a jury to find you guilty. Disabling a safety device will be only one of your problems, but it is an avoidable one. I prefer to eliminate as many avoidable problems as possible before hand, so that I and my lawyer can focus on dealing with the unavoidable ones.
I tend to think of the issue in terms of a paraphrase of Pascal's wager: I don't know it disabling a safety device on my gun (or using handloads, or adjusting my trigger to be very light) will adversely affect the outcome if I am on trial for using my gun in what I claim was self defense, but I really have nothing to gain by disabling the safety device (etc.) even if it won't affect the outcome (because I can get adequate performance without engaging in those behaviors -- i. e., by using a different gun, learning to better manage the one I have, using quality, commercial ammunition, etc.). However, I have a great deal to lose if disabling the safety device (etc.) would adversely affect the outcome.
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