There are two starkly different arenas where your life will be on the line if you’re ever involved in a gunfight. The first, of course, will be the shootout itself. If you don’t survive that, you won’t have to worry about the second stage. You’ll be in a box six feet underground, or your ashes will have been scattered on the winds, the forests, or the waters.

The second arena will be that of the Courts. You’ll have to deal with the criminal justice system—after all, you’ve just shot a fellow human being. It won’t be a “clean shooting in defense of self or others” until a very powerful criminal justice entity (the prosecutor’s office, or the Court) SAYS it was.

If all goes well and the criminal justice system says you’re justified and good to go, you still have to be concerned with the civil court system. It is absolutely true that “anyone can bring suit against anyone for anything.”

Pro-self-defense forces have been conspicuously successful in a few states, most notably Florida, in passing laws which decree that if a shooting has been determined to have been justifiable in self-defense, a civil lawsuit should not be brought. An amazing number of people have not read the fine print in those laws, and don’t understand the dangerous subtleties that lie beneath the surface of headlines that say, “Lawsuits Forbidden in Justifiable Shootings.”

For one thing, every such law I’ve read leaves an opening for lawsuits if the plaintiff alleges negligence. After all, there is no such thing as a “justifiable accident.”

Justifiable Homicide

For another, most such laws are very fungible as to what exactly constitutes a determination of Justifiable Homicide. (Notice the wording itself: it’s not “Justified Homicide,” it’s “Justifiable Homicide.” To most of us who speak the English language, the word “justified” would mean concluded to be such, and the word “justifiable” would mean MIGHT be such. In other words…something open to further interpretation and further analysis.)

For example, consider what I’ll call here Case One. A young man shot and killed a thief on his family’s property who appeared to be about to kill him and a beloved relative. The prosecutor’s office investigated the shooting, and told defense lawyers they didn’t intend to prosecute.

However, they did not issue a “memorandum of closure” which could have served as an official determination of “justifiable homicide.” And then, the family of the deceased publicly announced that they were suing the shooter and his family for Wrongful Death.

The state where it happened had a recent law in place that theoretically would have prevented a lawsuit for a shooting that was ruled justifiable. When the lawsuit was publicly announced, the newspapers said that the prosecutor’s office described the case as “still under investigation.”

So, where was the ruling that would have spiked the lawsuit? Well…it wasn’t there. This will be an interesting case to keep an eye on.

Hardware

Several decades ago, when I was a young guy just starting to carry a gun, it never would have occurred to me that prosecutors and plaintiff’s lawyers would falsely accuse a defendant of accidentally shooting someone, when in fact that person had intentionally fired in self-defense. “The gun went off by accident,” I thought, was just the weak excuse of someone who had deliberately shot someone they had no right to shoot.

As an expert witness in weapons-related cases since 1979, I came to learn otherwise. Proving malice, a key ingredient in a Murder case, isn’t easy if it doesn’t actually exist. However, with an accidental shooting theory, it’s a lot easier to convince the jury that you committed Manslaughter because you made a mistake—after all, doesn’t everyone make mistakes? And, let us not forget, there is no such thing as a “justifiable accident.”

In the early 1980s I was retained as expert witness for the defense of a young police officer charged with Manslaughter. He had intentionally fired a single, fatal shot when he and his partner were making an arrest of a man illegally carrying a gun, and the man spun on them and tried to draw and shoot them. The shooting triggered a major race riot. The city needed a scapegoat, and this officer was indicted. Here, in what I’ll call Case Two, the prosecution came up with a theory that the officer had cocked the hammer of his revolver during the arrest, and then accidentally discharged the shot that struck the offender in the head and killed him. This theory created the elements of negligence and recklessness necessary to sustain a Manslaughter conviction.

Fortunately, he was defended by two of the finest trial lawyers in the country, Roy Black and gun-savvy Mark Seiden. After two months of trial, he was found not guilty on all charges. We had been able to prove to the jury that the state’s theory didn’t hold water.

In between the shooting and the trial, the police department involved had all the service revolvers converted to double action only. If this had been the case before the shooting, the prosecution would never have had that weak “cocked gun/hair trigger” argument on which to hang their bogus theory of the case. Ever since, I’ve strongly recommended that revolvers kept or carried for defensive purposes be double-action-only…partly to prevent genuine hair trigger accidental discharges, but also largely to prevent such things being falsely alleged against the user. When that department went to autos, they chose Glocks, which had been ruled to be double-action-only by BATF, and ordered them with 8-pound triggers.

In Case Three, the defendant used a single-action pistol with a trigger pull of approximately 2.5 pounds. An extortionist threatened him, and when it appeared the suspect was reaching for a gun, the defendant deliberately fired one shot. The bullet struck the extortionist in the abdomen, a painful but non-fatal wound, and he began to double over and turn away. At this point, however, the defendant’s shaky hand apparently applied an unintentional 2.5 pounds of pressure to the trigger, because the pistol barked again. It was as much a surprise to the man holding the gun as the man shot by it. The latter took the bullet in the back, and this second shot proved fatal.

Only a very sympathetic grand jury that was fed up with criminals saved him from a Manslaughter trial, because they refused to indict. However, the family of the deceased unloaded a monster lawsuit on him, and by the time he finished paying them off, he had lost his business and most of an estate he had spent his life building.

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Show Comments
  • RH

    Excellent article, with many practical and easily implementable suggestions to avoid some potentially grave consequences. I do have a question on the single/double action issue. I have been looking into purchasing a pistol for concealed carry purposes, and have narrowed the field down considerably. My top 3 considerations at this time are: 1) Glock 26/27/33 (double action, striker), 2) Springfield Armory EMP 9mm (single action), and 3) CZ Rami 9mm (double action first shot, single-action thereafter).

    I was leaning toward the Springfield EMP, but it does have the 1911 style single-action design. Would a pistol like the EMP put a person at a disadvantage in a courtroom, if it came to that, or would that depend on the trigger pull? Springfield’s web site shows the trigger pull to be 5 – 6 pounds.

    Would the CZ Rami also cause a person to be at a disadvantage in a courtroom because of its second shot single-action characteristic, if a second shot was fired? The CZ Rami is listed as having a single-action trigger pull of 3.6 – 5.5 pounds.

    Thank you.
    RH

  • NotoriousAPP

    What about pull weight for DAO revolvers? Is it easily legally defensible to reduce DAO revolver pull weight from a stock 15lbs to 10 lbs (also considering the work is done by a professional gunsmith)?