Are there additional legal risks with gun modification and/or advanced training?

[Guest DavTN]

Hi all,

I have read in a few forums and articles where people that were involved in defensive shootings, the prosecution discovered and used:

• modifications to the firearm (trigger jobs, sights, etc.)
  

• and/or; advanced firearms training,
  

to possibly sway the jury that the permit holder was looking for a reason to be involved just so they could use their gun.

I like the idea of advanced training; hoping never to need but being prepared, but would do not want to open myself up to more legal risk.

What are your thoughts and do you know of any case precedents? Have many of you non-LEO's taken courses beyond the state required course?

Thanks,

David

[bigwakes]

I have had an Advanced Tactical Pistol class and took a free class put on by the Williamson County Sherrif teaching Laws related to shootings in and out of the home. The DA came to talk and answer questions one day. I also compete in pistol matches to get better for real world situations. I don't think a jury would hold any training against you. A civil attorney may try to say you "trained to kill", but that should not stop you from training.

[MikePapa1]

I'll give you my personal opinion on these issues. Other lawyers may well disagree. In 27 years, I have averaged about two jury trials per year, the majority criminal, but a fair number of civil cases, both as Plaintiff and Defendant.

I believe that additional training, depending upon the nature of that training, will be favorably viewed by the jury. My equivocation on that is if the training is of "100 ways to Kill your Fellow Man," I doubt would be helpful but classes on defensive tactics, use of force, etc., would be favorably viewed.

Gun modifications, however, unless aimed at safety, would be weighed against you. How much? I honestly don't know, but I genuinely believe they would. I know if I were representing a perspective plaintiff and the defendant had had, for example, a trigger job to shorten travel, the types of arguments I would make. Being relatively familiar, I know of all sorts of valid reasons to do so but even on a jury that included average gun owners, I'm willing to bet I could convince them that such modifications make you look bloodthirsty. My advice would be to keep a carry gun as stock as you can, to avoid those types of arguments.

Just my two cents worth.

[daddyo]

I got a good deal on a S&W M&P9c with the external safety last year. I wasn't fond of the safety, but a deal's a deal. Recently I had the safety removed by a competent and licensed gunsmith.

I agree that some thought needs to be given to this, but because S&W makes this firearm both with and without an external safety, I don't worry about prosecution in the event of a SD shooting. If there is a prosecuting atty in the event of a civil suit, then he will find something to make an issue. I just need to make sure that my atty is better.

[JayC]

Mike,

What is your personal opinion on devices which aid in aiming? Such as Crimson Trace lasers?

I'll give you my personal opinion on these issues. Other lawyers may well disagree. In 27 years, I have averaged about two jury trials per year, the majority criminal, but a fair number of civil cases, both as Plaintiff and Defendant.

I believe that additional training, depending upon the nature of that training, will be favorably viewed by the jury. My equivocation on that is if the training is of "100 ways to Kill your Fellow Man," I doubt would be helpful but classes on defensive tactics, use of force, etc., would be favorably viewed.

Gun modifications, however, unless aimed at safety, would be weighed against you. How much? I honestly don't know, but I genuinely believe they would. I know if I were representing a perspective plaintiff and the defendant had had, for example, a trigger job to shorten travel, the types of arguments I would make. Being relatively familiar, I know of all sorts of valid reasons to do so but even on a jury that included average gun owners, I'm willing to bet I could convince them that such modifications make you look bloodthirsty. My advice would be to keep a carry gun as stock as you can, to avoid those types of arguments.

Just my two cents worth.

[bigwakes]

I'll give you my personal opinion on these issues. Other lawyers may well disagree. In 27 years, I have averaged about two jury trials per year, the majority criminal, but a fair number of civil cases, both as Plaintiff and Defendant.

I believe that additional training, depending upon the nature of that training, will be favorably viewed by the jury. My equivocation on that is if the training is of "100 ways to Kill your Fellow Man," I doubt would be helpful but classes on defensive tactics, use of force, etc., would be favorably viewed.

Gun modifications, however, unless aimed at safety, would be weighed against you. How much? I honestly don't know, but I genuinely believe they would. I know if I were representing a perspective plaintiff and the defendant had had, for example, a trigger job to shorten travel, the types of arguments I would make. Being relatively familiar, I know of all sorts of valid reasons to do so but even on a jury that included average gun owners, I'm willing to bet I could convince them that such modifications make you look bloodthirsty. My advice would be to keep a carry gun as stock as you can, to avoid those types of arguments.

Just my two cents worth.

Never heard an attorney's view on the matter. Thanks for adding that, kind of what I had always thought, but now it's been confirmed. How often would a prosecutor have a weapon tested for modifications? Is it rare or SOP?

Edited January 6, 2011 by bigwakes

[mikegideon]

I'll give you my personal opinion on these issues. Other lawyers may well disagree. In 27 years, I have averaged about two jury trials per year, the majority criminal, but a fair number of civil cases, both as Plaintiff and Defendant.

I believe that additional training, depending upon the nature of that training, will be favorably viewed by the jury. My equivocation on that is if the training is of "100 ways to Kill your Fellow Man," I doubt would be helpful but classes on defensive tactics, use of force, etc., would be favorably viewed.

Gun modifications, however, unless aimed at safety, would be weighed against you. How much? I honestly don't know, but I genuinely believe they would. I know if I were representing a perspective plaintiff and the defendant had had, for example, a trigger job to shorten travel, the types of arguments I would make. Being relatively familiar, I know of all sorts of valid reasons to do so but even on a jury that included average gun owners, I'm willing to bet I could convince them that such modifications make you look bloodthirsty. My advice would be to keep a carry gun as stock as you can, to avoid those types of arguments.

Just my two cents worth.

Trigger jobs improve accuracy, which minimizes stray bullets. I have the Apex tactical parts in my M&P. One of their videos demonstrates that their ugrade eliminates pulling off target when you squeeze the trigger. It can be spun both ways.

Edited January 6, 2011 by mikegideon

[MikePapa1]

Mike,

What is your personal opinion on devices which aid in aiming? Such as Crimson Trace lasers?

Generally, I don't think they would be detrimental (I have a LaserMax, for example, on my Sig 226 that I often carry) but as with most of these things they are very fact specific. I can foresee an attorney asking why you used lethal force when you had access to an aiming device that would allow a disabling shot that would no kill. It's a risk and something I've thought about. I believe if confronted in such a manner I would respond that lasers are an aid but do not guarantee exactly where the shot might go and therefore, relying on my training I sought to disable the threat by shooting at the center mass until I no longer felt threatened. It's a judgment call, but I can promise you it will be an issue if it gets that far. My advice to a client would be no modifications on a carry gun.

[Fallguy]

IMO (FWIW) as long as it's a good shoot, you shouldn't have anything to worry about..at least for sure on the criminal side, on the civil side...who knows, but again if it's ruled a good shoot, then you are supposed to protected civilly too.

[MikePapa1]

Never heard an attorney's view on the matter. Thanks for adding that, kind of what I had always thought, but now it's been confirmed. How often would a prosecutor have a weapon tested for modifications? Is it rare or SOP?

A prosecutor as in the criminal context? Probably not, though, as part of a forensic review, the TBI would probably note modifications.

In a civil case, I can guarantee that it will be brought up. All records regarding the gun will be subject to discovery and the Plaintiff would have the gun examined by an expert.

[MikePapa1]

Trigger jobs improve accuracy, which minimizes stray bullets. I have the Apex tactical parts in my M&P. One of their videos demonstrates that their ugrade eliminates pulling off target when you squeeze the trigger. It can be spun both ways.

Hence you would argue it's a safety modification. How much would you want to bet that I can find an expert who will be willing to testify that it might also lead to a premature discharge? As I said, these things are fact sensitive, but my standard advice would remain the same. You are better off having a stock gun than having to explain to a jury, some of which will be afraid of guns, why a short trigger is REALLY a safety feature.

[MikePapa1]

IMO (FWIW) as long as it's a good shoot, you shouldn't have anything to worry about..at least for sure on the criminal side, on the civil side...who knows, but again if it's ruled a good shoot, then you are supposed to protected civilly too.

True, that's the way it's supposed to work. I normally represent people when bad things happen that weren't supposed to happen.

[Fallguy]

True, that's the way it's supposed to work. I normally represent people when bad things happen that weren't supposed to happen.

LOL...so true.

My main concern (after protecting my life of course) is to avoid criminal charges....after that while I'd rather not be sued I don't overly stress about it. As some may or may not know, several days ago was the anniversary of when Bernard Goetz shot the thugs on the subway...and he was eventually found liable in a civil trial brought by one of them (the paralyzed one). Can't remember the amount awarded, but anyway....he was asked a few years ago about it and he said, "I don't think I've paid a dime on that."

I know this is probably a foolish attitude to have, but you can't get blood from a turnip. Plus a thief was ordered to pay me restitution for an item stolen...I have yet to see a dime. Or my mother in a similar situation....so........

[mikegideon]

Hence you would argue it's a safety modification. How much would you want to bet that I can find an expert who will be willing to testify that it might also lead to a premature discharge? As I said, these things are fact sensitive, but my standard advice would remain the same. You are better off having a stock gun than having to explain to a jury, some of which will be afraid of guns, why a short trigger is REALLY a safety feature.

Does it matter if you can "prove" that it's not really a safety feature when you're actually trying to prove my intent as a brutal murderer? Doesn't it only matter that I believe it's a safety feature? Seems like it would only be relevent if the shooter was trying to convince the court that the gun "just went off".

[MikePapa1]

Does it matter if you can "prove" that it's not really a safety feature when you're actually trying to prove my intent as a brutal murderer? Doesn't it only matter that I believe it's a safety feature? Seems like it would only be relevent if the shooter was trying to convince the court that the gun "just went off".

Remember, Mike, in a civil case, all I'm required to prove is more likely than not. The preponderance of the evidence is a relatively low standard. I think a trigger job, after my expert testifies that it makes the pistol discharge more quickly and easier than the stock trigger, places you at risk in a civil case. Think I could make the jury believe you were probably negligent with the following cross exam?

ATTY: The gun you used to shoot my client was the way the manufacturer designed it was it?

WITNESS: Um, yeah, it was.

ATTY: Are you trying to tell us you didn't have this pistol modified?

WITNESS: No, but....

ATTY: You modified the trigger to make it easier to pull the trigger didn't you?

WITNESS: Well, yes, but...

ATTY: Then it wasn't as the manufacturer designed it but as you had it modified to make it easier to fire a bullet, isn't that true?

WITNESS: I did it for safety?

ATTY: You made the gun easier to fire for SAFETY? Is that what you're trying to make us believe?

It would go on like that for some time. Frankly, in cross examination, if done the way it should be, your answers wouldn't really matter much. The questions would tell the jury everything I would want them to know. Look, I'm a gun guy, but the guy who actually does the cross exam might be an anti-gun guy out to use you to make a point. As I said, my advice remains the same, but, of course, if my clients actually followed my advice ahead of time, I probably couldn't buy any guns at all. Your results may be different, but I can guarantee you one thing: Your trigger job will be an issue and it won't be used to make you look better.

[Fallguy]

Remember, Mike, in a civil case, all I'm required to prove is more likely than not. The preponderance of the evidence is a relatively low standard. I think a trigger job, after my expert testifies that it makes the pistol discharge more quickly and easier than the stock trigger, places you at risk in a civil case. Think I could make the jury believe you were probably negligent with the following cross exam?

ATTY: The gun you used to shoot my client was the way the manufacturer designed it was it?

WITNESS: Um, yeah, it was.

ATTY: Are you trying to tell us you didn't have this pistol modified?

WITNESS: No, but....

ATTY: You modified the trigger to make it easier to pull the trigger didn't you?

WITNESS: Well, yes, but...

ATTY: Then it wasn't as the manufacturer designed it but as you had it modified to make it easier to fire a bullet, isn't that true?

WITNESS: I did it for safety?

ATTY: You made the gun easier to fire for SAFETY? Is that what you're trying to make us believe?

It would go on like that for some time. Frankly, in cross examination, if done the way it should be, your answers wouldn't really matter much. The questions would tell the jury everything I would want them to know. Look, I'm a gun guy, but the guy who actually does the cross exam might be an anti-gun guy out to use you to make a point. As I said, my advice remains the same, but, of course, if my clients actually followed my advice ahead of time, I probably couldn't buy any guns at all. Your results may be different, but I can guarantee you one thing: Your trigger job will be an issue and it won't be used to make you look better.

Yep...definetly a difference in the burden of proof in a civil trial and criminal trial.

Also don't disagree with you said.

Just more of my naive thinking though.....if I can show the jury I was in reasonable fear of imminent bodily harm or death.....it really doesn't matter what I've done to the weapon of even if I used a bazooka......right?

Another thing that has been debated and I still don't know if there is a clear cut answer is...If a DA decides not to prosecute and/or a Grand Jury returns a No Bill is that enough for the purposes of 39-11-622 to be considered a justified shoot already?

[mikegideon]

I'm a difficult witness

[MikePapa1]

Just more of my naive thinking though.....if I can show the jury I was in reasonable fear of imminent bodily harm or death.....it really doesn't matter what I've done to the weapon of even if I used a bazooka......right?

Another thing that has been debated and I still don't know if there is a clear cut answer is...If a DA decides not to prosecute and/or a Grand Jury returns a No Bill is that enough for the purposes of 39-11-622 to be considered a justified shoot already?

Civil cases are all about appearing to be reasonable. A bazooka might make one appear to be unreasonable.

As to the DA, my gut is yes, but I've not seen any caselaw to support that.

[Guest DavTN]

Thank you all for the discussion. There are some very good things to consider and I will try to research a few cases related to this topic. I suspect only the unfavorable verdicts will show up in a standard google search, but I do know a few local attorneys and will pose the question to them as well.

[Guest DavTN]

Some good reading on the subject, but remember the source is a company selling legal insurance.

Choosing Self Defense Guns

[DaveTN]

Depends on why you are being sued civilly. I don’t think a trigger job is going a play a big part in a case if you intentionally shot someone. It is going to play a huge part if you have an AD/ND (If you have one you will call it an AD, most here will be calling it an ND.) and are sued.

Being clueless about gunsmithing and having an AD due to a botched/Careless trigger job on a carry gun could certainly lead to criminal charges if an innocent person got hurt.

On a different note…some people have a hard time keeping other people named Dave and DaveTN separate. They are really going to have fun with this name situation.

[mikegideon]

Depends on why you are being sued civilly. I don’t think a trigger job is going a play a big part in a case if you intentionally shot someone. It is going to play a huge part if you have an AD/ND (If you have one you will call it an AD, most here will be calling it an ND.) and are sued.

Being clueless about gunsmithing and having an AD due to a botched/Careless trigger job on a carry gun could certainly lead to criminal charges if an innocent person got hurt.

On a different note…some people have a hard time keeping other people named Dave and DaveTN separate. They are really going to have fun with this name situation.

'bout time the Daves have to put up with some of that. Welcome to the Mike world

[G27]

Great thread, special thanks to Mike for sharing his experience with us!

I've always felt it was best to carry a non-modified gun for that very reason. The one modification I've done is added night-sites to my carry weapon - your thoughts on that?

[Worriedman]

Excellent thread!

[MikePapa1]

I don’t think a trigger job is going a play a big part in a case if you intentionally shot someone. It is going to play a huge part if you have an AD/ND (If you have one you will call it an AD, most here will be calling it an ND.) and are sued.

A big part? Maybe not, but again, civil suits are all about looking reasonable or making the other side look unreasonable. Here's why I would recommend against a trigger job on a carry weapon:

ATTY: You modified the weapon from its manufacturer's design, didn't you?

WITNESS: Well, no, not really.

ATTY: You had the trigger pulls shortened and made easier, didn't you?

WITNESS: Well, yes.

ATTY: So you decided on your own what time and deliberation the trigger should have as opposed to the way it was designed and built, didn't you?

WITNESS: Well, I suppose so.

ATTY: So the manufacturer thought the appropriate trigger pull was 5 pounds to give the shooter a chance to decide if pulling the trigger was really necessary but you wanted to shoot more quickly because you thought you knew better than the people who designed and built the gun. Is that right?

Again, with a good cross exam, the answers are really irrelevant. The best advice is no modification.

Edited January 7, 2011 by MikePapa1