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.”
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.
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.
What is a hair trigger? There is no general “bright line” definition of that. It goes gun by gun, and will be determined by two things. One, of course, is the manufacturer’s specification for trigger pull weight. The other is a factor known in court as “common custom and practice.”
With a double-action revolver, it has long been understood that a cocked hammer generally creates a trigger pull so light that only a reckless fool would point a gun in that condition at someone they hadn’t decided they had the right to shoot. In Case Four, a Federal court of appeals determined that Manslaughter was a proper verdict for a man whose cocked Colt revolver discharged unintentionally and killed the violent, armed suspect he was trying to hold at gunpoint. The Court cited a Colt manual which had been introduced as evidence in the trial, and which warned against cocking a revolver under such circumstances.
What about, say, a 1911 pistol? Colt, the company that birthed the 1911 and the only firm to manufacture such guns for an uninterrupted century, makes it clear in their armorer’s school that anything below four pounds is too light for serious (as opposed to target shooting) use. Even the most vehement anti-gunner would have to admit that the National Rifle Association knows its stuff when it comes to the mechanics of firearms and gun safety. The NRA strictly enforces a minimum trigger pull weight of 4.0 pounds on any 1911 used in their service matches in conventional pistol shooting, such as the Distinguished event or the President’s Hundred, fired annually at the National Championships at Camp Perry, Ohio. Original Army Ordnance specification for trigger pull weight on the 1911 was 5 to 7 pounds. Therefore, it is abundantly clear that any prosecutor or plaintiff’s counsel would have no trouble at all convincing a jury that a trigger pull weight under 4 pounds constituted that element of recklessness and negligence known colloquially as the “hair trigger.”
Probably the most popular pistol today is the Glock. Its manufacturer introduced a light trigger pull option, the 3.5 pound connector, with its target model, the 9mm Glock 17L, in the late 1980s. The same trigger system was standard on the subsequent .40 caliber version, the Glock 24, and later on the “Tactical/Practical” models, the 9mm Glock 34 and the Glock 35 in .40. All four were designed for competitive target shooting. The name of the part was later changed to the 4.5-pound connector, to better reflect the true resulting pull weight when measured from the center of the trigger, where the trigger finger generally lies. It is, of course, the exact same component.
An amazing number of Glock owners do not realize that Glock company policy states emphatically that the 3.5/4.5-pound connector is not to be installed in a gun intended for service or self-defense use, and that it is only for recreational shooting. If a police department orders Glock 34 or 35 pistols, it is company policy to ship them to the cops with the 5.5-pound standard connector. In Case Five, an unintentional shooting of a suspect by an officer with a .45 caliber Glock 21 pistol, the Court ruled that the lawsuit against officer and department could not be dismissed, because the officer had replaced the standard service connector with a 3.5-pound connector, lowering the pull weight below factory spec. This, I submit, is a good preview of how other courts will look at shootings involving Glocks with too-light trigger pulls. Just a few years ago, Glock did approve the combination of the 3.5-pound connector and the NY-1 trigger spring system, a.k.a “New York Trigger,” which brings total pull weight up to roughly 6 pounds.
Why is, say, a 4.25-pound pull acceptable on a 1911, but too light on a Glock? One explanation is that the 1911 also has a manual safety and a grip safety, and the Glock incorporates neither. But, mainly, it’s a matter of factory specification and “common custom and practice.”
With all this in mind, you can see why this writer recommends never using a pistol with a lighter than factory minimum spec trigger pull weight for defensive use.
I learned that it was not a good idea to remove or deactivate safety devices on firearms. Remember that during voir dire, the jury selection process, opposing counsel is likely to screen out any prospective jurors who are knowledgeable about firearms. When he tells them, “Ladies and gentlemen of the jury, this defendant is so reckless and negligent that he deactivates the safeties on lethal weapons,” you don’t need me to tell you how powerful an impact that’s going to have on lay people. Sure, you’ll explain why you deactivated the magazine disconnector on your Browning Hi-Power, or locked down the grip safety of your 1911. But that will just give opposing counsel an excuse to argue on summation, “This defendant is so arrogant he believes he knows more about this gun than the man who designed it, the legendary genius John Moses Browning, to whom a museum is dedicated in Ogden, Utah!”
After seeing Case Six, one of Mark Seiden’s cases where a prosecutor became convinced Mark’s client was the very exemplar of negligence because he owned a Browning 9mm with the magazine disconnector removed, it struck me as an awfully good idea to leave safety mechanisms intact. I’d advise that if you don’t like a gun with the magazine disconnect or the grip safety, buy a different type of gun. If you really like the Hi-Power, the Cylinder & Slide Shop (cylinder-slide.com) can give your pistol a great trigger, and modify it and its magazines to fall free, without removing the safety. If your hand isn’t always activating the grip safety on a 1911, you can solve that with a retrofit grip safety with a bump on the bottom to guarantee that it disengages when you grasp it, or you can simply hold the gun with your thumb curled down, which will bring the web of your hand tighter into the grip safety.
It is common for opposing counsel to demonize your use of hollowpoint ammunition, calling it “dum-dum bullets” and “killer bullets” and such, and trying to convince the jury that your use of hollow points is an indication of malice on your part. Drop by a legal library and look up an article on the topic by Lisa Steele, a famous appellate lawyer who specializes in self-defense cases that resulted in wrongful convictions. What you’re looking for is: Steele, No Bad Bullets, 37 Crim. L. Bultn. 263 (2001).
Perhaps the most famous such incident among shooter folk is Case Seven, Arizona v. Harold Fish. Fish, a retired schoolteacher, was attacked by a much younger and stronger man who had a long history of extremely violent, unprovoked attacks on people. Fish wound up having to shoot him three times with a 1911 10mm pistol. The prosecution made a huge deal out of him using a pistol so deadly Arizona police weren’t allowed to carry it, and the so-called “monster flesh-ripping” hollowpoint bullets. These arguments were bogus—the S&W 10mm pistol was once standard issue for every FBI agent in Arizona, and at least one large Arizona county authorized its deputies to carry their own 10mms. Moreover, virtually every police department in the state issued hollowpoints. Fish was convicted, and when some jurors were asked in an interview why they voted as they did, the malicious dum-dum bullets and that horrible 10mm pistol were among their reasons.
I don’t see this as a reason not to carry a powerful handgun for self-defense, and I don’t see it as a reason not to carry hollowpoints. I do see it as proof that we need to be able to explain why we use hollowpoint ammunition. (1) These bullets are less likely to overpenetrate the body of the homicidal attacker and endanger unseen innocent bystanders. (2) They are less likely than supposedly “humane” round nose ball ammo to ricochet and endanger innocents. (3) History shows that they are better man-stoppers, and more quickly end the deadly danger presented to you and other innocents by the man whose actions forced you to shoot him. (4) It can be logically argued that since he is stopped with fewer shots, he suffers fewer gunshot wounds and is probably less likely to die, making the hollow point arguably more humane even for the man who forces you to shoot him.
Another ammounition issue I’ve seen come up is handloads. In Case Eight, prosecutors argued that the defendant was so eager to shoot and horribly mangle someone that regular bullets weren’t deadly enough, and he had to load his own extra-deadly .45 ammo. The late Jim Cirillo did a great job of destroying that argument in court as an expert witness for the defense and helped greatly in winning the ultimate acquittal, but even Jim agreed that it would have been better if the prosecution hadn’t had that hook to hang their hat on.
In Case Nine, a failed suicide intervention ended in death when the gun the wife was holding to her head discharged as her husband tried to get it away from her. Suspicions were aroused when no gunshot residue (GSR) was discovered around the entry wound at autopsy. The husband explained that the ammunition was very light handloads he’d made for his recoil-sensitive bride. However, the casings were Federal +P, and the crime lab tested with full power +P, which of course would have left residue at the distance in question. Defense experts tested the light loads and confirmed they would not have left GSR at the distance described by the husband, but the prosecutor kept that out with the argument, “The witness manufactured the evidence!” In all the years since – including some very heated debate with proponents of handloads for carry and home defense – no one has been able to provide a single case where the courts did accept the word or the records of a handloader when it came to GSR testing to determine distance.
While Case Eight was not a self-defense shooting, that doesn’t matter: the Rules of Evidence are the same whether the given theory of the case is murder, justifiable homicide, or anything in between. After three tortuous trials, the defendant in Case Eight was convicted on a compromise verdict of Manslaughter, served time in prison, and remains a convicted felon. His attorneys were unanimous in saying that if the gun had been loaded with factory ammo, the case would probably never have even gone to trial.
I have no problem with handloads for practice, training, hunting or competition, but I think you can see why I’ve come to recommend against them for personal protection use.
The bottom line is, don’t take Internet advice as gospel. Use common sense. Don’t put blood in the water when you know the waters you’re swimming in are infested with sharks. You wouldn’t hand your attacker your finest pistol to use against you…don’t hand future opposing lawyers “weapons” they can use to hurt you, either.