Cocked or not?

[GKC]

I was watching one of Hickock45's videos (which are all awesome, IMO, and that guy can shoot!) and he raised a point in discussing a J-frame revolver that intrigued me. It's not the first time that I have read or heard that particular point, either...and that is, in a self defense situation, you should not cock a revolver, for legal ramifications. In other words, if you have to shoot in self defense, do so in DA mode (unless, of course, you are using a SA revolver.)

Here is the link, if you wish to review it:

YouTube - 642 S&W .38 Special (Airweight J frame)

I suppose it does eliminate the possibility of you firing accidentally...since the trigger is so much lighter in DA mode. Beyond that, though, I'm not sure I understand the ramifications of cocked versus DA mode in an intentional shooting. Now, I in no way question the knowledge of Hickock45, and certainly accept his expertise...I am seeking to understand, and not challenge.

It seems to me that if I have an intruder in my home, one that is coming toward me aggressively and representing a threat to me, and I have determined to fire, it should make little to no difference if I fire from SA mode or DA mode, in terms of legality and justifiability. (I am not debating the issue of accuracy, or mechanics, either.)

What am I missing here?

 

[Retired LTC USAR]

How is anyone , except you, going to know if you fired in DA or SA mode.

I personally don't see what difference it would make.

 

[GKC]

How is anyone , except you, going to know if you fired in DA or SA mode.

I personally don't see what difference it would make.

Well, I was wondering that myself...I guess if you were asked on the stand if you cocked the revolver before you fired, or if a witness said you did, then it could become known. Otherwise, I don't know how it could be determined from any physical evidence.

And, like you, I don't know what difference it could make anyway. Again we are talking about a case where you intended to shoot the bad guy, and there was no accident involved.

 

[ContinentalOp]

I'm not a lawyer, but I have researched this as well as having some training that included the legal aspects of self-defense, so take my post for whatever it's worth to you.

I think it has more to do with civil liability than criminal liability. The plaintiff's lawyer can make the argument that you cocked the hammer, creating a hair trigger, which sets the groundwork for an accidental discharge, which means they can sue you for negligence, which, if they win, means your insurance company will have to pay up money (assuming you have home owner's insurance). The plaintiff can get more money out of you through a negligence suit then an intentional tort suit. Apologies for the run-on sentence.

The way a prosecutor can manipulate a single-action shooting is to say that by cocking the hammer you intended to do the other person harm rather than stop him/her, which negates your claim of self-defense. Or it could be argued that cocking the hammer was a sign of wanton disregard for the safety of others, leading to some form of manslaughter or reckless endangerment charge, or something similar. Not to mention that it could be argued that cocking the hammer could be seen as intimidation, which, again, negates your claim of self-defense.

FYI, just because you shoot someone doesn't mean they die as a result. They could still be a "witness" to your actions. If your attacker dies it doesn't stop plaintiffs/prosecutors from making assumptions that support their arguments even if they don't have facts to support it, unless you can provide evidence to disprove those assumptions. By using a revolver that can't be cocked, you essentially take away those arguments from the plaintiff/prosecutor's tool box.

A lot of people will say "justified is justified" but you're not the one making that call...the jury or judge does (depending on whether it's a jury or bench trial). If you have a good lawyer, then he/she can probably counter any such claims. But again, it's up to the jury/judge to decide who's side they believe.

Of course, this is also beyond the practical aspect of using a DAO revolver for self-defense as trying to cock a hammer while someone is trying to kill me is more troublesome than simply pulling the trigger. There may be exceptions, such as physical disabilities that make it difficult to shoot DA, but those should be articulated and documented before anything bad happens.

FWIW, all my self-defense revolvers are DAO.

 

[GKC]

ContinentalOp,

Thanks for the reply.

Now, let me pose this question...if you use a traditional 1911 pistol or a SA revolver, both of which have to be manually cocked to fire the first round (and subsequent rounds from the SA revolver) would that negate any claim of recklessness, since it is a matter of function?

Frankly, it all borders on the absurd to me...and yes, I know, when you get involved with courts and lawyers, absurdity is the norm not the exception.

I would not take the time to cock a DA revolver in an emergency either, unless I had already cocked it and told the bad guy to stop or I would shoot. It seems to me that would be seen as a more reasoned and prudent action in the eyes of the law...a warning before firing...but then again, as the saying goes, the law may upset reason but reason may not upset the law.

 

[scooter123]

It all goes back to the case of the State of NY vs. Frank Maglioto.

It's a case where someone who was being charged by a man armed with a club shot his assailent with a Colt revolver that had been cocked. He then told the Police and the Court that he didn't intend to shoot the assailant, he'd cocked the gun to try and scare off his attacker and it had discharged "accidentally". Since NY law doesn't have any provision for an "accidental" shooting being Justified, the result was a conviction for 2nd degree Murder that was later reduced to Manslaughter in a higher Court.

BTW, Massad Ayoob has written extensively on this case, unfortunately I was unsucsessful in finding his original article on this particular case. However I did find another posting which bears on this case. Do a google search of "sState of NY v. Frank Magliato" and you'll find his posting on the Gun Zone site.

Now one point is that a cocked revolver, or any single action pistol is MORE prone to an inadvertant discharge. IMO, while this case illustrates the legal risk of shooting with a light, or lightened trigger, I believe that it doesn't make one thing as clear as should be made. That is that if you ever have to draw your gun in preperation to defend yourself you must take every action you can to insure that the gun ONLY fires because you intended to fire it. That means you keep your bugger hook off the trigger unless you see a very real and present need to shoot your assailant. To be blunt, "I shot him to save my life" is a good Legal Defense and "I didn't mean to shoot him" is an invitation to Prison.

Personally, I prefer carrying with a Double Action trigger, in my case the Sig Sauer DA/SA trigger. Since I've never carried, or even owned a 1911 type pistol I don't trust that I'd remember to flip off a safety. With my Sig at a measured 10.5 lbs DA trigger pull it's not likly I'll discharge it without intention and I don't have to remember a safety it doesn't feature.

 

[photoman]

I think a lot of this came about from police officers holding suspects at gunpoint after having cocked their service revolver. The probability of an unintended discharge while holding a suspect with a cocked revolver is, I would think, quite high.

I can think of a few scenarios where it would be beneficial to have single action capability. Then again, the probability of those situations happening is astronomically low. For the most part, double action is the way to go.

 

[Alk8944]

There are two sides to the question. First, reducing the chances of an un-intentional discharge are greatly reduced by using the gun only in double action. This is precisely the reason many law enforcement agencies required all their revolvers to be DAO, and why they only use DAO semi-automatic pistols.

The second side is what happens if you are actually involved in a shooting. Under stress of the situation you will never notice the trigger pull. You will likely never even recall that you heard the gun fire, let alone feel the recoil!! You need to do everything possible to be sure that if you fire a round that it was intentional! After the incident never, never, never say that the discharge was unintentional!

Think about this, how would it sound to you if you were on the jury and the officer testified that the first thing the shooter had said was "I didn't mean to shoot him, the gun just went off!" As a LEO I can tell you my reaction to this. To me it is the same as the shooter saying:

"I didn't mean to."

"I am irresponsible and incompetent to carry/handle a gun."

"I don't think I was justified in shooting."

Remember the admonition to never point a gun at something you don't intend to destroy?

You can probably think of several other infered statements contained within the claim of an un-intentional discharge by the shooter. Do you want to be him?????????????

 

[.357magger]

Depends on distances and circumstances involved imo.

30 yards and in, DA is the way to go. 30 yards and out, I may choose to use the SA features of my weapon. That's one reason I don't have any revolvers with DAO bobbed hammers.

Just saying that trying to come up with some "rule" that encompasses EVERY aspect of mano v mano armed combat is a somewhat futile exercise. DA only is the fastest way to work the revolver within the above envelopes and can easily be mastered with the proper amount of training. At extended ranges, and you can hit at remarkably extended ranges with SA fire, SA may be more appropriate. Or if the presented target is a small one.

The phrase, "I don't remember" and "May I consult with an attorney" are also well worth remembering in ANY self defense situation you survive. When the legal system comes in, common sense goes out is the old saying...and it's true.

Just my .02.

 

[tg4360]

Why?

First thing that comes to mind is WHY would you bother cocking it?

The whole point of a revolver with two actions is that you don't HAVE to cock the piece to get it into action.

Now, in the very rare event that you need to make a long range (more than 25 yds?) shot, cocking it would make sense as long as the lethal force need is still there.

I'm reminded of the Air Force SP who dropped the guy from long range who was shooting up the area with an AK type rifle... The SP rode up on his patrol bike and zapped the bad guy from IIRC around 75 yards with his M-9. Had that been back in the day when we were carrying Model 15s, I think it would have been a perfectly justifiable time to cock and fire.

Other than a situation like that, why would you?

 

[ContinentalOp]

ContinentalOp,

Thanks for the reply.

Now, let me pose this question...if you use a traditional 1911 pistol or a SA revolver, both of which have to be manually cocked to fire the first round (and subsequent rounds from the SA revolver) would that negate any claim of recklessness, since it is a matter of function?

Again, this is just my opinion and not legal advice of any kind, but I would say it shouldn't be an issue since that's how those guns are supposed to operate. I would be worried about a really light trigger pull. I know with 1911s it's suggested to stay above 4lbs. for the trigger pull. I have no experience or knowledge regarding SA revolvers, so I couldn't even guess at what an appropriate trigger pull weight would be.

I would not take the time to cock a DA revolver in an emergency either, unless I had already cocked it and told the bad guy to stop or I would shoot. It seems to me that would be seen as a more reasoned and prudent action in the eyes of the law...a warning before firing...but then again, as the saying goes, the law may upset reason but reason may not upset the law.

That is a tough spot. I recently attended a lecture given by a self-defense instructor who had said something that might be of interest, though it may not parallel your hypothetical situation exactly. The subject of "shooting to wound" came up and he said that doing so implied that you were not in immediate fear of being seriously injured or killed, thus you were not justified in using deadly force. Instead, it would imply that you intended to harm the other person rather than stop him/her from harming you.

As you said, it's not difficult to get a situation twisted around when the law/legal system gets involved.

Anyone who either carries a gun for self defense or has one at home for home defense should give some serious thought to these issues. Do some research, take some classes, or, ideally, consult with a lawyer experienced with these issues in your area, and figure out the best way to proceed from there. Whatever you choose to do, it'd be a good idea to have a reasonable explanation for why you did what you did and be able to back that up with documentation of some kind.

 

[GKC]

In Texas, while we don't have a duty to retreat, I do think there is a common sense as well as moral consideration.

Suppose I hear a noise in the living room at 3am and go investigate...I see a man down on his knees, disconnecting my DVD player (obviously with intent to steal it; I didn't call a repairman in the middle of the night, nor did I let him in, so I think that is a logical assumption to make.) I don't think I would be justified, morally or legally, to shoot him in the back, nor has he threatened me yet...so, what I would do is advise him that I am armed, and that he should lay face down on the floor until the police arrive. Instead of doing that, he stands up and faces me...and has a knife in his hands. He is menacing me, and I am afraid, but he has not yet taken a step toward me. In that case, if my weapon is a DA revolver, I might cock the revolver and advise him again that I am armed and will shoot him if he doesn't drop the knife and lay face down on the floor. I would do so for these reasons:

1) Even though I have no duty to retreat, he has not yet taken a step toward me...and while he is apparently threatening me with the knife (a reasonable assumption) I can't say that I feel that shooting him is the only and last resort I have at the moment.

2) I hope that by cocking the revolver, the sound will register with him as a threat and compel him to comply.

3) At the distance involved (perhaps 15 to 20 feet) I am more likely to hit him, if I do have to fire, from a SA shot than a DA shot, given the situation (adrenaline, etc.)

That is the only scenario that I can readily envision in which I would take the time to cock a DA revolver before firing it. Other situations may not permit the time to cock first, even if you could.

If I do shoot, I am not going to shoot to wound, or shoot in the leg (at least not intentionally)...if I feel that the threat is sufficient for me to fire a gun at a human being, then I will be in fear for my life or the lives of my family, and I will do my best to eliminate that threat by using deadly force. I won't place myself or my family at even greater risk for the sake of the person(s) trying to kill me/them, by trying to minimize his injuries.

Edited to add: I do not put my finger on the trigger until I am ready to fire...no matter the type of action or state of readiness. I keep my finger outside the trigger guard until I am ready to pull the trigger.

 

[Retired LTC USAR]

So does this mean if you are using a pump shotgun as a home defense weapon, you can't rack a round in untill you are ready to shoot the BG?

 

[Tracer_Bullet]

Quote: if you use a traditional 1911 pistol or a SA revolver, both of which have to be manually cocked to fire the first round (and subsequent rounds from the SA revolver) would that negate any claim of recklessness, since it is a matter of function?

I think with a 1911 the question would be whether you moved the thumb safety to the off-safe position, since the gun wouldn't operate unless it was cocked. In other words, the gun is carried cocked and locked, but it still can't be accidentally/negligently discharged unless you flip the safety off, so the question changes from whether you cocked the gun to whether you took it off-safe (and "accidentally/negligently" shot someone with it).
Of course trying to explain all that to a jury who is selected because they know nothing about guns...

I'm not sure with the SA revolver, but since you have to cock it to fire it, doing so would definitely show an intent to shoot. Of course, if you were trying to lower the hammer after deciding not to shoot and the gun went off...

 

[GKC]

So does this mean if you are using a pump shotgun as a home defense weapon, you can't rack a round in untill you are ready to shoot the BG?

A lot of people evidently think so...since I have read many comments about the sound of racking the pump mechanism may scare away the bad guy, or words to that effect. Personally, if I was going to have a pump shotgun for home defense, I would have a round in the chamber and the safety on. I don't have one now, though in the past I did...and that's the way I kept it. (My brother-in-law wanted to buy it, and offered me more than I paid for it...so, not being one to let an opportunity go by to take advantage of him, I sold it to him. He's a jerk, so it's well deserved.)

Now I am trying to decide between a Coach gun, with internal hammers or a Serbu Super Shorty. Now, that's a gun no one needs...but need doesn't always enter into it, does it?

 

[Cpo1944]

The beauty of a DA revolver is you don`t have to cock it.

I can imagine if I were in that type of life threatening situation I would be trembling, probably uncontrollably ,and cocking it smoothly and or correctly might not happen.

It would be easy to have you thumb slip off the hammer and if your finger was on the trigger - unintentional discharge. If you missed your target, you have lost your advantage and now you have a moving target.

I am a long time 1911 user , but not anymore . Now it`s a DA revolver in .41 mag caliber with an attached bright white light , to give positive ID and target aquission . I`d be yelling so loud at the Perp he`d never have heard the darn thing cocking anyway-not even a 12 ga pump!!

 

[.357magger]

Other than a situation like that, why would you?

When the only part of your adversary that is momentarily exposed is small (foot exposed, half of head peeking around a corner, head of a hostage taker is partially exposed behind a hostage family member).I just gave you three (and the list could potentially be endless) where the target will be of opportunity, shot opportunity of short duration, and small in scale. In other words when only a quick precise shot will work.

Not arguing at all that for the VAST majority of self defense situations, particularly in the civilian arena, DA fire is superior. SA should NOT, imo, be used as a threat. If the threat is there, shoot, don't threaten back. ???????????

But in certain narrow circumstances the capabilities of a precise shot (is anyone going to argue that SA fire is not more precise, really?) may be the ONLY option you have. Why disregard it entirely?

 

[.357magger]

In Texas, while we don't have a duty to retreat, I do think there is a common sense as well as moral consideration.

Suppose I hear a noise in the living room at 3am and go investigate...I see a man down on his knees, disconnecting my DVD player (obviously with intent to steal it; I didn't call a repairman in the middle of the night, nor did I let him in, so I think that is a logical assumption to make.) I don't think I would be justified, morally or legally, to shoot him in the back, nor has he threatened me yet...so, what I would do is advise him that I am armed, and that he should lay face down on the floor until the police arrive. Instead of doing that, he stands up and faces me...and has a knife in his hands. He is menacing me, and I am afraid, but he has not yet taken a step toward me. In that case, if my weapon is a DA revolver, I might cock the revolver and advise him again that I am armed and will shoot him if he doesn't drop the knife and lay face down on the floor. I would do so for these reasons:

1) Even though I have no duty to retreat, he has not yet taken a step toward me...and while he is apparently threatening me with the knife (a reasonable assumption) I can't say that I feel that shooting him is the only and last resort I have at the moment.

2) I hope that by cocking the revolver, the sound will register with him as a threat and compel him to comply.

3) At the distance involved (perhaps 15 to 20 feet) I am more likely to hit him, if I do have to fire, from a SA shot than a DA shot, given the situation (adrenaline, etc.)

That is the only scenario that I can readily envision in which I would take the time to cock a DA revolver before firing it. Other situations may not permit the time to cock first, even if you could.

If I do shoot, I am not going to shoot to wound, or shoot in the leg (at least not intentionally)...if I feel that the threat is sufficient for me to fire a gun at a human being, then I will be in fear for my life or the lives of my family, and I will do my best to eliminate that threat by using deadly force. I won't place myself or my family at even greater risk for the sake of the person(s) trying to kill me/them, by trying to minimize his injuries.

Edited to add: I do not put my finger on the trigger until I am ready to fire...no matter the type of action or state of readiness. I keep my finger outside the trigger guard until I am ready to pull the trigger.

Uh...no offense intended, but in the above scenario you described, do you think you're really going to do all this when confronted inside your home at 3am by a knife wielding intruder?

Really? Cock it and threaten inside of 15 feet? And in point of fact, you'll be more likely to make concentrated hits in DA mode, rather than SA. This assailant can be on you, gutting you out, in under a second and a half. You're going to want to talk to him?

Imo you should check the laws in Texas a tad more closely. I think you're rationalizing out actions and scenarios that you don't have to.

Just my .02.

 

[GKC]

Uh...no offense intended, but in the above scenario you described, do you think you're really going to do all this when confronted inside your home at 3am by a knife wielding intruder?

Really? Cock it and threaten inside of 15 feet? And in point of fact, you'll be more likely to make concentrated hits in DA mode, rather than SA. This assailant can be on you, gutting you out, in under a second and a half. You're going to want to talk to him?

Imo you should check the laws in Texas a tad more closely. I think you're rationalizing out actions and scenarios that you don't have to.

Just my .02.

You may very well be right...it's one thing to calmly discuss it here, and quite another to be in the situation. Still, I do not think I could shoot a man in the back, as I had described in my hypothetical scenario. I grant you that it is very likely that once I had told him to lay down, if he stood up and turned around with a knife in his hand, my reaction at that time of stress and fear might very well be to fire with no additional warning.

 

[luangtom]

The reason that many departments, be they municipal or county, go for DAO side-arms is for the very reasons being discussed here. LIABILITY.

The departments that go with DAO do so to avoid the attorney in the courtroom asking their officers if they "have a hair-trigger in SA". With their DAO there is no doubt.

In all honesty, DAO also helps the rookie shooter with using the same trigger-pull on each shot.

Just my two-cents.....