A question came in over the Law of Self Defense Facebook page regarding the legal liability that might be created if a person modifies their concealed carry firearm, and then finds themselves compelled to use that firearm in self-defense. (By the way, if you don’t already follow the Law of Self Defense Facebook page, why not? You can do so right here: http://facebook.com/lawofselfdefense.)
Here’s that question in full, from someone going by the handle “Gaston Garand”:
Good morning Andrew, I just got your book, The Law of Self Defense, and that got me thinking. If I sent one of my revolvers and had the barrel shortened to 3″, smoothed out the trigger, and converted to DAO, would that paint me in a bad light in the unlikely event I’d have to use it in self-defense? If you can’t answer online, I totally understand, and hope I’ll find it in the book somewhere.
The fundamental question here is whether modifications to your carry gun can “be used against you in court.” So let’s dig into that.
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OK, that out of the way, let’s dive into today’s question.
Can Gun Modifications Be Used Against Me in Court?
Any time anyone asks me “can X be used against me in court,” regardless of what “X” might be, my answer is always “Yes.” That’s because prosecutors have incredibly broad discretion in what they are allowed to argue in court.
It’s true that your defense attorney may be able to convince the trial judge to prohibit a prosecutor from arguing about one issue or another, in which case that issue is no longer available as a legal weapon with which the prosecutor can attack you.
But that decision itself is left to the broad discretion of the trial judge, and you never really know how they’ll rule, allowing the prosecution’s argument, or prohibiting it, until you’re already looking down the barrel of a trial. As a result, we have to be prepared now for that decision to go against us then.
And the arguments that can be allowed the prosecutor can be really remarkable.
We covered an appellate court decision just last week in which the question was whether it was reversible error for a trial judge to allow a prosecutor to describe a defendant in front of the jury as a “psychopath,” even though the defendant never been clinically diagnosed as such. (LOSD Members: See People v. Gomez, 2020 Ill. App. Unpub. LEXIS 227 (IL Ct. App. 3rd 2020).)
The defendant was convicted at trial, and on appeal naturally objected to being characterized as a psychopath, absent clinical diagnosis, as he (almost certainly correctly) felt it would prejudice the jury against him. After all, as a simple factual matter, there was no evidence whatever that he was actually a psychopath.
The appellate court’s decision on whether it was permissible for the prosecutor to apply the label psychopath to the defendant even in the absence of a clinical diagnosis, and for the trial judge to permit this? They were all good with it, and affirmed the defendant’s conviction.
As another example, during the George Zimmerman trial Prosecutor John Guy (now a family court judge in Florida), screamed at length in front of the jury that obviously Zimmerman malicious murdered Trayvon Martin because it turned out that not only did Zimmerman have a gun on his person he was carrying that gun “with a round in the chamber, in the ready to fire position.”
If having a round in the chamber is evidence of malice, then every police officer in the United States—indeed, every bailiff in that very courtroom—was guilty of malice, because every single one of them carries their sidearm with a round in the chamber. To suggest that there’s something malicious or unusual about carrying a defensive firearm with a round chambered is obviously ridiculous.
Ridiculous it might be, but the argument was nevertheless allowed. Not that it helped Prosecutor Guy in the end, as Zimmerman was,of course, acquitted of all charges.
And that’s the real issue, from my perspective as a lawyer—not so much whether the argument will be allowed—we have to be prepared for the possibility that it will—but whether the argument is likely to cause serious damage, and how readily I can defend against that damage.
In the case of the label psychopath in People v. Gomez, I’d think that label could have been very harmful to the defendant, as the case involved a killing caused by over 100 stab wounds. In the case of the loaded chamber argument in Zimmerman, that one was so ridiculous that the defense never even bothered to argue against it.
What about arguments based on modifications to a concealed carry gun, in an effort by the prosecutor to make the defendant look bad? The same analysis applies. We have to assume that the arguments will be permitted. The real question is how harmful are these arguments likely to be, and how easily can that damage be defended against.
With that context, there are some gun modifications that can be the basis for very harmful arguments in a self-defense case, arguments that are difficult to defend against, and there are other gun modifications that are unlikely to be harmful and are relatively easy to defend against.
We can distinguish between these two classes of modifications by asking which of them are relevant to some required element of the defendant’s claim of self-defense, of which there are up to five elements: Innocence, Imminence, Proportionality, Avoidance, and Reasonableness.
By the way, for any of you not familiar with the five elements of a claim of self-defense, until you know these five elements you do not—indeed, you can not—understand self-defense law at all.
There’s good news, however. We offer a FREE “5 Elements of Self-Defense Law” infographic that explains these five elements in plain English. You can get this FREE infographic at the link below. (Did I mention it’s FREE?). For a deeper explanation of those five elements we also provide an optional ~10-minute video micro-course at that same link, also FREE.
You can download that infographic at the image or link below:
OK, back to our question: What kinds of gun modifications are relevant to those five elements, and therefore of concern in terms of raising legal liability, and what kinds of modifications are not?
The gun modifications of most concern to me fall into two categories:
- Modifications that suggest a state of mind inconsistent with lawful self-defense.
- Modifications that suggest the shooting might have been accidental/negligent rather than intentional.
Modifications: State of Mind
In the context of modifications that go to state-of-mind, one of the conditions for lawful self-defense is that the defender had a genuine, good-faith belief in the need to defend against an unlawful attack.
But what if there’s evidence that the defender lacked such a genuine, good-faith belief? What if there’s evidence that the purported defender had some alternative motive, inconsistent with lawful self-defense, for their use of force? What if there’s evidence that the defender considers himself above the law, and determined to seek justice and use force against others as he thinks best, regardless of what boundaries the law itself places on the use of force?
Welcome to the “Punisher” backplate, or any other imagery or statement placed on a gun from which a prosecutor can infer that the defendant believed himself above the law in use-of-force situations.
For those unfamiliar, the “Punisher” is a comic book character who acts as a vigilante, subjecting perceived bad actors to punishment without limiting himself to what the law allows. In effect, he’s a criminal. Do you want to provide the prosecutor with evidence from which he can argue that you, too, perceived yourself as above the law for use-of-force purposes, that you’re in effect a criminal?
The same goes for engraved statements on the gun like “Kill ‘em all, let God sort ‘em out,” and “Wait for flash,” and so forth. Incidentally, this caution also applies potentially to bumper stickers like “Keep honking, I’m reloading,” “We don’t call 911,” and “Terrorist Hunting Permit.”
These are all in effect statements about the defendant’s state of mind, and they are evidence of a state of mind that is inconsistent with lawful self-defense.
So, please, don’t modify your personal defensive firearm such that it provides a prosecutor with that kind of evidence to use against you.
The other types of modifications that worry me are those that can be used as the basis for a prosecutor to argue that your discharge of the firearm was not an act of intentional self-defense, but rather an act of accident or negligence.
The legal defense of self-defense is available only for intentional uses of force against another. If your use of force was accidental or negligent, you may be able to raise the legal defense of accident (a perfectly legitimate legal defense), but the legal defense of self-defense would not apply.
In other words, to the extent that the prosecutor is arguing your use of force was an accident or negligent, a claim of self-defense is simply no legal defense at all. That legal defense of self-defense is off the table with respect to accident or negligence.
What kind of gun modification might be used as the basis for a prosecutor to argue accident or negligence? Primarily these fall into two buckets:
- Substantially lightening a trigger to reduce trigger pull greatly.
- Disengaging safety mechanisms
Many of you are life-long gun owners like myself, many of you probably have similar experience in competitive shooting sports. I think we can all agree that substantially lightening a trigger and disengaging safety mechanisms certainly does not decrease the probability of an accidental or negligent discharge, and almost certainly increases that probability.
In the context of trigger pull, it’s also important to recognize that this is a measurement that is easily assessed in a very quantitative way. Put a trigger weight scale on that Glock pistol and see what the pull weight is. Something between 4.5-5.5 pounds? Probably an unmodified OEM trigger setup. Only 2.5 pounds—OK, somebody changed something on that gun to lower the trigger weight that much, with a resultant increased risk of an accidental or negligent discharge.
Note that smoothing, rather than lightening, a trigger is a somewhat different matter. One can smooth a trigger, and make the gun more shootable, without lowering the trigger weight to any substantial degree. And there’s no real objective measurement for “smoothness” of a trigger, so it would be hard to quantify in a courtroom.
(Actually, that last statement is not, strictly speaking, true—I’m aware of one company, CoolFire, that has developed its own mechanism to quantify trigger smoothness for its internal development purposes, but I very much doubt prosecutors are aware of the device or how they might use it in a prosecution.)
In any case, where it’s easy to argue that a substantially lighter trigger might facilitate an accidental or negligent discharge, it’s much harder to make the same argument for a trigger that’s smoother but not meaningfully lightened.
As to the issue of disengaging safety mechanisms, I’m not sure I need to speak to that at great length. I’ll simply note that you’ll never convince a jury that you knew more about what safety mechanisms that particular gun required in order to be safe to operate than did the engineers who designed that gun at the factory. It would, therefore, be very difficult to justify such a modification.
Obviously, disengaging any safety mechanism intended to prevent a gun from discharging accidentally or negligently can, only increase the chances of an accidental or negligent discharge.
Modifications Without Such Concerns
There are also, of course, many modifications that can be made to a gun that neither has anything to do with state of mind nor influence how the gun discharges.
Stipling the grip, for example, touches upon neither of those concerns. Nor does changing the sights, installing a MRDS (red dot), coloring a gun, and similar modifications.
For modifications that don’t influence state of mind or mechanism of discharge, I’ve little legal concern. Can a prosecutor perhaps still talk about your red dot? Sure, or at least we have to presume he will be. Is it likely to cause harm to a claim of self-defense if he does so? No. Is it relatively easy to defend against any harm it might cause? Yes.
And that is all I have to say about that, at least for today. And thanks to “Gaston Garand” for sending that question into us on Facebook!
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And speaking of Law of Self Defense Membership, let me touch upon that for just a moment.
You may have noticed that we keep only very minimal Law of Self Defense content on our Facebook, YouTube, and other social media platforms. That’s not by accident, but by design, because of the hostility of those platforms to self-defense particularly and the Second Amendment generally. You’ll only ever find the last couple of our videos on either of those platforms.
That said, we naturally face no such limitation on our own Law of Self Defense web site, where you can access a ton of self-defense law expertise—most of which, however, is limited to Law of Self Defense Members.
The GOOD NEWS is that the lowest level of Law of Self Defense Membership, Bronze-level, is absolutely FREE. Even the first paid tier of membership, Silver-level, costs only about a quarter a day, and Silver includes access to our premium members only Law of Self Defense Podcast.
At the very least, you’d be crazy to not take advantage of the FREE Bronze-level Membership. In any case, you can learn more about all levels of Law of Self Defense Membership by pointing your browser here:
Law of Self Defense LEVEL 1 Class: Sat. April 25
Folks, if this kind of content is interesting to you and you’d like to efficiently gain a world-class education in self-defense law we know of no better method than to attend a Law of Self Defense LEVEL 1 Class.
This is the full-day self-defense law class we’ve taught all over the country. It’s also the class that’s been accredited by more than 30 states as Continuing Legal Education in self-defense law for defense attorneys, prosecutors, and judges—but don’t let that scare you away, as all the legalese is translated into plain English.
We’re traveling less these days than we used to, and we now mostly teach our LEVEL 1 Class in a live online format, meaning that I teach the class live but in a webinar format that we stream to you at your computer, tablet, or smartphone. Again, it’s taught live and there’s plenty of opportunity for Q&A all without the inconvenience of you having to travel to a classroom or me having to fly across the country.
Our next Law of Self Defense LEVEL 1 Live Online Class is scheduled for Saturday, April 25, 2020, and we down to about half the seats still available. We are only planning to do three of these classes in 2020, folks, so if that’s of interest I urge you to book your seat now, it’s very reasonably priced, or at least learn more about the class by pointing your browser here:
And Remember …
As I wrap up, remember:
You carry a gun so you’re hard to kill.
Know the law so you’re hard to convict.
Attorney Andrew F. Branca
Law of Self Defense LLC
Law of Self Defense CONSULT Program