View Full Version : Liability Issues
An interesting question came up this evening at the nightly Wawa coffee/FOP meeting. All but 2 patrol rifles in the department are built from parts and not rifles purchased complete. Some are Tier 1 quality and others are slightly less. The two that are complete, are Bushmasters that were purchased by the police department many years ago and all of the other ones are owned by the individual officers and approved by the chief to carry. When the new chief was hired, he was not a current member of the department and he did not like the Bushmasters and changed the policy so he could carry his own rifle and all of us followed suit. The question that came up was that if we were to use one of these "hand built" rifles to defend ourselves or someone else, what kind of scrutiny would we be handed by the other side when they asked why we carried these bad black rifles that were custom built to kill their client (or client's estate)? And why wouldn't an out of the box rifle be good enough to carry?
All of our franken guns were built by either myself or another officer with almost as much experience in building ARs. All of the rifles are built from standard parts and are not altered in any way.
I have no real clue, but I do not think it would matter what rifle you use unless you miss and kill an innocent bystander. I thought Bethlehem cops just bothered Northampton students?
I have no real clue, but I do not think it would matter what rifle you use unless you miss and kill an innocent bystander. I thought Bethlehem cops just bothered Northampton students?
That's Bethlehem Township Police not Bethlehem City. Otherwise, you are correct. :D
I am pretty sure that we have had very similar threads in the past and no one can point to any cases where this was a factor. Similar to using an SBR or suppressor to defend ones home. A bad shooting is a bad shooting. That's all there is to it.
Defense attorney to jury:
1. "As you can see, this officer was unsatisfied with the factory model and modified his weapon to kill people with greater ease."
2. "Officer ______, you modified the trigger in your weapon, is this correct?" "Yes" "And this modification made it easier to pull and allow for faster follow up shots, is this correct?" "yes" "So one could say your modified your weapon not to keep the peace but to kill"
And any other ridiculous variation you can imagine in the same vein.
I figured I should have added the fact that for all intensive purposes, this case would be a good shoot. The question is, could the fact that the rifle was hand built, would that point alone bring the situation to court?
ThirdWatcher
01-15-10, 05:10
I am pretty sure that we have had very similar threads in the past and no one can point to any cases where this was a factor. Similar to using an SBR or suppressor to defend ones home. A bad shooting is a bad shooting. That's all there is to it.
I agree. I've never run into an ambulance-chaser that new anything about guns, anyway (but I've known a few savvy deputy prosecutors and judges that pack).
John_Wayne777
01-15-10, 08:08
I figured I should have added the fact that for all intensive purposes, this case would be a good shoot. The question is, could the fact that the rifle was hand built, would that point alone bring the situation to court?
I have never seen evidence of a good shoot that was turned into a bad one because the shooter used customized equipment.
I agree. I've never run into an ambulance-chaser that new anything about guns, anyway (but I've known a few savvy deputy prosecutors and judges that pack).
You need to get out more. I've been a trial lawyer for over 25 years.
As stated above, a good shoot is a good shoot. Motions in limine (outside the hearing of the jury) can keep the evidence on point.
Modifications to weapons only become relevant if the shot was not fired intentionally.
Defense attorney to jury:
1. "As you can see, this officer was unsatisfied with the factory model and modified his weapon to kill people with greater ease."
2. "Officer ______, you modified the trigger in your weapon, is this correct?" "Yes" "And this modification made it easier to pull and allow for faster follow up shots, is this correct?" "yes" "So one could say your modified your weapon not to keep the peace but to kill"
And any other ridiculous variation you can imagine in the same vein.
That seems pretty far-fetched to me unless the modification actually made the gun hazardous (and the party pitching that theory had an expert who would say so at trial) and that caused an unintentional shot. These sorts of cases, at least ones that make it to trial, are incredibly rare, but my sense as somebody who has tried cases on both sides of the fence is that this sort of argument is so far out there that most plaintiffs' lawyers wouldn't even bother with it and it likely wouldn't get past a motion in limine.
I agree with what RSS1911 says above (and he's been doing it longer than me).
People get too wound up about trigger weights and modifications. If you meant to pull the trigger, it doesn't matter how many pounds of pressure it takes or how fast it resets. You were either justified or you weren't. If you pressed it unintentionally - again, it doesn't matter if it's a 2 lb trigger or a 20 lb trigger, you fucked up either way.
P.S. - I do a lot of plaintiff's work now (used to do defense) and there are more than a few of us who are "gun people" and are nowhere close to the liberal stereotype attached to "trial lawyers." I know several just in the Virginia Trial Lawyers Association who have FFLs and/or are very knowledgable about specific types of firearms.
I have never seen evidence of a good shoot that was turned into a bad one because the shooter used customized equipment.
Neither have I, and a couple years back I spent several hours on Lexis searching the opinions of every single court in the country and came up with zero support for the notion that this is an issue. I found exactly one case, in California, where a modified long gun went off unintentionally inside a vehicle. Nobody pressed the trigger, it had been modified in a grossly negligent manner and the vehicle's movement set it off.
As stated above, a good shoot is a good shoot. Motions in limine (outside the hearing of the jury) can keep the evidence on point.
Modifications to weapons only become relevant if the shot was not fired intentionally.
THIS.
If you are legally justified to use lethal force, you are legally justified to use it with a knife, stock pistol, highly-modified assault rifle, or Mack truck.
OTOH, the more stuff your lawyer needs to argue during a motion in limine, the more you're going to be paying your lawyer.
And if the only witness to the shooting is you, then your credibility becomes a major issue... and who knows what a particular judge or juror might think when they hear of a highly modified gun?
OTOH^2, if you can demonstrate and justify the purpose for your modifications, you're probably fine. Many of my guns have been modified for a different trigger pull than factory standard. I'm quite confident I can explain what was done, why, and how it allows me to control my weapon better under stress.
Nothing in the above post is intended as legal advice. Always consult a competent, licensed attorney in your jurisdiction when faced with legal questions.
+1
The accessories and modifications will be questioned if
A) the gun goes off accidentally/unintentionally (trigger or safety modifications), or
B) the wrong person gets shot (sights, lights)
We're going through a transition at our agency from general pool rifles to individual issue and purchase. We're getting to the accessorizing and modification issue. The liability issue pops up, but for our powers that be, its more of an issue of the department training staff and armorers not knowing how to run an AR or set it up for duty use.
edited: That's not to say that trigger mods are dangerous; just make sure you or whoever is doing the work knows what they're doing.
Skintop911
01-15-10, 11:35
Agencies and officers can mitigate whatever potential for problem exists by ensuring that they have trained, certified, competent, and experienced armorers on staff that can credibly attest to the serviceable condition and suitability of firearms in LE service.
Relying solely upon the "gun guy" in your department is NOT acceptable.
The issue can be further mitigated by ensuring that policies clearly establish which components and assemblies may be used, the standards to which they are held, and what configurations are allowable. Those that are allowable should be common in LE service and clearly established as suitable for LE service.
I think Liability comes into play more if something goes wrong. If a factory gun fails to function if is on the company. If a Frankengun fails, it is on whoever assembled it.
Agencies and officers can mitigate whatever potential for problem exists by ensuring that they have trained, certified, competent, and experienced armorers on staff that can credibly attest to the serviceable condition and suitability of firearms in LE service.
And the names and phone numbers for well-credentialed armorers/experts who don't work for the agency and can say the same, but won't be viewed as a shill for the home team.
I think Liability comes into play more if something goes wrong. If a factory gun fails to function if is on the company. If a Frankengun fails, it is on whoever assembled it.
It's not that simple...
ThirdWatcher
01-15-10, 14:37
You need to get out more.
True. :D
tracker722
01-15-10, 14:53
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Basically, what it comes down to is department rules and regulations. Do you have the qualified training cadre in your department? Can they back up the qualifications you and your officers possess to carry the weapons? Is the ammunition standardized for training and street use?
These are issues that will come up in any civil suit that is brought about by a shooting. Not so much what fired the round but what type of round, was it approved, and what type of training the troops received and whether or not it was P.O.S.T. certified.
The mere fact that you did or did not follow internal department regulations doesn't matter and, in fact, those regulations may not even be admissible. The standards that govern whether you or your agency were negligent are not found in the rules and regs that you wrote, and frankly that's the way it should be. If that were the standard, you could simply write incredibly broad and lenient regs, or have none at all, and never be liable. I can also assure you that none of the plaintiff's bar cares if you followed internal regulations that nobody but your agency knows about, if you nonetheless committed a tort in doing so.
Whether a training program or practice is POST certified would probably be relevant and admissible (but not dispositive) on whether the practice or training element was defective.
Agency regs (and whether you followed them) also don't help you if a credible expert says that what you did pursuant to those regulations is dangerous/not within industry standards/etc., and this the regulation itself is flawed.
You need to look at agency rules as something that guides internal behavior and should be written in accordance with what the rest of the world and the law view as negligent, as a way to have detailed guidelines that are more specific and user friendly than the law in general but ensure that practices fall within the law. They are not yardstick or an authority in themselves.
tracker722
01-15-10, 15:35
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tracker722
01-15-10, 15:41
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I am not an attorney but I do deal with large civil litigation cases every day at work. There is no end to the idiotic arguments that plaintiff attorneys will put forth to try and make a recovery. What you deal with after a shoot will have a lot more to do with the individual who was shot and the immediate family than which rifle you used.
If they are the "suing type" you are going to be heading to some depositions and turning over a lot of records in discovery. The goal is not to really prove that the retarded argument that they put forth is true i.e. your personally assembled rifle is "more deadly" than a factory Bushmaster. The goal is to get your employer, or their insurance carrier look at the costs of the ongoing lawsuit and put up some $$$$ to make it go away.
It is a sad state of affairs. There are no effective rules for defendants to recover their expenses for frivolous suits filed against them so you either have to buy your way out or defend the stupid thing at the cost of time and $$$$. That means your officers are sitting through days of depositions instead of patroling and your administrative staff has to comply with mountians of paper discovery instead of getting real work done. Then you get to the jury and they award the estate of someone who really needed to be shot millions. 99% of these are settled in spite of the fact that the allegation is the most retarded thing you have ever heard.
PRGGodfather
01-16-10, 13:41
I have never seen evidence of a good shoot that was turned into a bad one because the shooter used customized equipment.
Yup. Especially when the modifications were done to improve reliability, or enhance performance -- and done by a competent and certified individual. If you're a kitchen table gunsmith, prepare for voir dire -- or just go to an armorer's course and pick up the certificate. It's not that hard. Get it done right, and you have little to worry about.
I cannot think of a time where a good shoot was questioned based on equipment, period.
What HAS occurred is cops have lost their jobs for using equipment in violation of department policy. Using .357 when not authorized in .38's, for example.
Rampant legalistic imagination is cause for a lot of mental masturbation. "So you used a Mossberg Persuader? Were you trying to 'persuade' my client?" Meh.
Hell, night sights are modification, too -- and my guess is no one at the PD certified the tritium.
I am not an attorney but I do deal with large civil litigation cases every day at work. There is no end to the idiotic arguments that plaintiff attorneys will put forth to try and make a recovery. ...
It is a sad state of affairs. There are no effective rules for defendants to recover their expenses for frivolous suits filed against them so you either have to buy your way out or defend the stupid thing at the cost of time and $$$$. That means your officers are sitting through days of depositions instead of patroling and your administrative staff has to comply with mountians of paper discovery instead of getting real work done. Then you get to the jury and they award the estate of someone who really needed to be shot millions. 99% of these are settled in spite of the fact that the allegation is the most retarded thing you have ever heard.
I don't know what you do (insurance or risk management?) and not to sidetrack this thread, but I've spent about equal time on each side and I can tell you that the defense bar can be equally idiotic and obstinate. They are a big part of the problem too.
There are many cases where there is some exposure and they should be settled, but defense attorneys dig in and pep-talk the aduster into lowballing it, and churn up all sorts of work so they can make their hours and billing revenue. Defense lawyers don't make money by settling cases, they make money by churning their files. Some of them just get joy out of throwing up every responsive pleading and taking every avenue of discovery possible in order both make money and because they think it will make the plaintiff/plaintiff's attorney miserable. In other words, for reasons unrelated to the merits of the case.
You're also wrong about there being no remedy for frivolous filings. The federal courts and most state courts can and do sanction parties and attorneys for stupid shit. I wouldn't say it's routine, but it happens with some regularity.
dbrowne1 - I agree with you 100%. Insurance companies, adjusters and their clients are led down the primrose path by the defense bar in many cases. There are a lot of carriers and commercial entities that have a bad attitude about accepting responsiblity for their mistakes and making it right too. I don't beleive that makes the situation better for anyone either.
I agree there are sactions for frivolous suits but they are really a joke. A couple of thousand dollars in sactions is not much help when your business just put out $200,000 to defend a suit.
Back to the subject at hand, I am simply no longer surprised by any allegation that I seen in a Civil Suit or the fact that it is not dimissed early on.
Back to the subject at hand, I am simply no longer surprised by any allegation that I seen in a Civil Suit or the fact that it is not dimissed early on.
This is the reasion I asked you people for your opinions.
For the record, there are no modifications to the parts. The rifles that are built were built with factory parts that were picked by the individual officer. Other than a couple of RRA and Gissele two stage triggers (which are still drop-in parts), everything else is standard.
Thanks for all of the input people!
An interesting question came up this evening at the nightly Wawa coffee/FOP meeting.
I can't believe no one has asked what Wawa means yet. Something we take for granted around the Phila suburbs of course, but surely odd sounding to the rest of us.
Anyway, this is a rather fascinating thread. Very three dimensional.
I have never seen evidence of a good shoot that was turned into a bad one because the shooter used customized equipment.
Luis Alvarez?
Luis Alvarez?
Luis Alvarezs gun was not customized. The prosecution argued that he cocked the gun and held the criminal at gunpoint and that the gun went off accidentally. After that Miami modified all of their revolvers to fire double action only. There was no evidence to suggest that Alvarez had the revolver cocked.
I do not remember if Alvarez shot the guy he was holding at gunpoint when he went for a gun. The problem was, among other things, that after the shoting Alvarez was in a state of shock and told another officer that his gun just went off, or something to that effect, making it sound like it was an accidental shooting.
There were other factors that ed to trial--it was a Hispanic cop who shot a black in a state where Janet Reno was trying to make political points.
The finish on Alvarez's gun was polished, his grips were changed, and he was accused of having a coil clipped off the trigger spring. The accusation of him cocking the gun wasn't the only facet of Reno's bullshit case, they brought all of the above into the trial.
I just got done reading Roy Black's account of his defense of Alvarez in Black's Law.
Luis Alvarezs gun was not customized. The prosecution argued that he cocked the gun and held the criminal at gunpoint and that the gun went off accidentally. After that Miami modified all of their revolvers to fire double action only. There was no evidence to suggest that Alvarez had the revolver cocked.
I do not remember if Alvarez shot the guy he was holding at gunpoint when he went for a gun. The problem was, among other things, that after the shoting Alvarez was in a state of shock and told another officer that his gun just went off, or something to that effect, making it sound like it was an accidental shooting.
There were other factors that ed to trial--it was a Hispanic cop who shot a black in a state where Janet Reno was trying to make political points.
I can't believe no one has asked what Wawa means yet. Something we take for granted around the Phila suburbs of course, but surely odd sounding to the rest of us.
I miss WaWa. Sheetz too.
I can't believe no one has asked what Wawa means yet. Something we take for granted around the Phila suburbs of course, but surely odd sounding to the rest of us.
Wawa's are popping up all over the place! I was in Va Beach and there were a few.
One of the guys that builds rifles with me was approached by an officer of the department where he lives about building him an AR. He looked into it and it fell through. The officer told him that his firearms instructor said that it was too much of a liability to have a gun built from parts. He was told to buy one complete. When asked why it was a liability, the instructor said, if we shoot someone with our Glocks a rep from Glock will show up in court. Who will show up in court for your AR?
My question is why would someone from Glock show up for court???? Yes your honor, this is a Glock. Yes your honor, I work for them. No your honor, I have no idea why I'm here!
All of this modification crap seems to take over people's minds. What about armorers??? I inspect all of our department's weapons every 6 months!
QuietShootr
01-17-10, 22:31
I figured I should have added the fact that for all intensive purposes, this case would be a good shoot. The question is, could the fact that the rifle was hand built, would that point alone bring the situation to court?
FOR ALL INTENTS AND PURPOSES
FOR ALL INTENTS AND PURPOSES
Aaaaaaaaugh!
FOR ALL INTENTS AND PURPOSES
FOR ALL INTENTS AND PURPOSES
Aaaaaaaaugh!
Sorry English Professor. :rolleyes:
Skintop911
01-18-10, 01:16
One of the guys that builds rifles with me was approached by an officer of the department where he lives about building him an AR. He looked into it and it fell through. The officer told him that his firearms instructor said that it was too much of a liability to have a gun built from parts. He was told to buy one complete. When asked why it was a liability, the instructor said, if we shoot someone with our Glocks a rep from Glock will show up in court. Who will show up in court for your AR?
My question is why would someone from Glock show up for court???? Yes your honor, this is a Glock. Yes your honor, I work for them. No your honor, I have no idea why I'm here!
All of this modification crap seems to take over people's minds. What about armorers??? I inspect all of our department's weapons every 6 months!
Manufacturers of many products can and do peform technical inspections for counsel. They have also supplied personnel to testify about their products, and whether or not their products were within specification or not at the time of an incident of concern.
How willing they are to do so, and under what conditions, may vary according to how that product is involved, where the perceived problem originated, and what type of further exposure (liability or publicity) will be created by their participation.
Knowing what kind of manufacturer support an agency can expect in cases like these is a commonly overlooked detail by administrators and trainers. It's best not to be caught off guard.
It's also a variable that will distinguish certain manufacturers, for better and worse, from their competition.
I have been to the Glock course 3 or 4 times, I never once heard them say they will show uo in court. What I do remember is them saying the department armorer (or that guy who is in the course) may be called upon to testify when there is a question about a weapon. I have actually heard this a few times in the various courses I have attended.
One of the guys that builds rifles with me was approached by an officer of the department where he lives about building him an AR. He looked into it and it fell through. The officer told him that his firearms instructor said that it was too much of a liability to have a gun built from parts. He was told to buy one complete. When asked why it was a liability, the instructor said, if we shoot someone with our Glocks a rep from Glock will show up in court. Who will show up in court for your AR?
My question is why would someone from Glock show up for court???? Yes your honor, this is a Glock. Yes your honor, I work for them. No your honor, I have no idea why I'm here!
All of this modification crap seems to take over people's minds. What about armorers??? I inspect all of our department's weapons every 6 months!
tracker722
01-18-10, 17:14
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A case several years ago in Knoxville, TN, Gaston Glock himself was subpoenaed into court to testify on the construction and safety mechanisms in the pistols that bear his name.
On the stand, he was so pissed about the allegations against his pistols, he spoke only in German.
The case was about a K.P.D. officer who shot a suspect in the back of the head and the officer claimed the pistol "accidentally fired".
Did you see this yourself, or just hear about it? I'd have to call BS on this. There is no way to subpoena somebody from Europe to appear and testify in the U.S., and I doubt he'd show up voluntarily for something like this.
tracker722
01-18-10, 18:30
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tracker722
01-18-10, 19:08
*******
FOR ALL INTENTS AND PURPOSES
FOR ALL INTENTS AND PURPOSES
Aaaaaaaaugh!
The one that pisses me of is 'could care less.'
If I am very upset about something and care very much I certainly could care less.
If I do not care at all about something I couldn't care less.
Found it. November 1993, product-liability suit in Knoxville, Tennessee. If you want more info on the court case, go to Knoxnews.com. There is a fee to access the archives, but it is there.
I will accept apologies graciously.;)
Hey, if it happened, it happened and I'll eat my plate of crow. You can't subpoena people from other continents and make them appear, however. There just isn't any authority or ability to do it. I know Gaston is supposedly an egomaniac about his guns being perfect, so perhaps he came over to personally guarantee it on the stand.:D
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