What legal issues should be considered when deciding whether to use “custom-made” firearms as self-defense weapons?
As an attorney and former police officer who provides legal representation to both civilian and law enforcement clients in use-of-force and firearms-related matters, and who also gives lectures and other presentations on issues related to “legal self-defense,” I read a fair amount of law enforcement-related training materials. Unfortunately, I often find discussions of liability issues by authors who, although they are subject-matter experts in firearms and use-of-force matters, lack sufficient knowledge of issues relating to legal liability.
One such article appeared in a recent issue of a periodical which focuses on police firearms and tactics. The author of the article is a high ranking, career law enforcement officer with SWAT experience; obviously someone who has subject-matter expertise with respect to law enforcement issues.
The article discussed the use of “custom[-made] duty weapons,” in the context of the AR-platform type of rifle. The end of the article contains a brief discussion of potential civil liability, and states in relevant part: “Some say that if you defend yourself with a gun that has an other-than-factory trigger, you’ll be successfully sued. . . .” In downplaying the likelihood of a successful lawsuit, the article goes on to say that “over the last decade or so, the courts have heavily favored the ‘Totality of the Circumstances’ standard in law enforcement use of force cases. . . . In most of the cases from this century that I have read, the details of the gun never even came up in the legal argument.”
The conclusion that this author apparently has reached – that using custom-made weapons such as AR-platform rifles or after-market components such as triggers, does not present a significant liability issue – is probably correct. But not because “the details of the gun never [come up] in the legal argument” of cases where the outcome is determined by the “totality of the circumstances.”
The reason the “details of the gun” never come up in “totality of the circumstances” cases is simply because the details of the gun are irrelevant in such cases.
Consideration of the “totality of the circumstances” can be one of many factors in a lawsuit alleging an intentional tort (an intentional use-of-force). If a shooting is intentional, it matters not whether the firearm was defective in any respect. All that matters is whether the shooting was justified under the “totality of the circumstances” and any other applicable legal standard. In other words, a justified shooting does not somehow become unjustified simply because it was accomplished with a defective firearm.
If, on the other hand, a shooting is not intentional (that is, the shooting is accidental or otherwise unintended), the “totality of the circumstances” standard does not apply. The “totality of the circumstances,” by definition, can never justify an accidental shooting.
An accidental shooting which is caused, in whole or in part, by a defective trigger or other issue relating to the functionality of the firearm itself, raises a whole panoply of other legal issues; however, none involve the “totality of the circumstances.”
The manufacture or assembly of firearms – especially those used for law enforcement or other self-defense purpose – inherently involve legal risk. The first step in minimizing and managing legal risk is to have a clear understanding of the relevant legal theories of liability that apply in a given situation. Once that has been accomplished, we can begin taking substantive steps in the direction of legal risk management and asset protection.
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