Internal Lock, remove/disable it or not? A liability question.

[Voyager28]

I have been doing a lot of reading of briefs and studying applicable case law, both pending and adjudicated, concerning liabilities, both criminal and civil, resulting from tampering with the safety devices on a firearm, particularly, magazine disconnects on semi-autos and the IL on S&W revolvers. For the purposes of this thread I will be concerned with the IL only.

There is a plethora of cases being litigated concerning first person liability resulting from removing/disabling hand gun safety devices. The first person being the original owner and the person who actually tampered with the safety device being involved in a accidental discharge. Though opinions, both from Learned Council and the Bench, vary widely there is an emerging trend in how these cases are being settled. However, what I am in a quest to see how many layers of liability actually exist. In other words, how far back in the ownership chain can liability reach?

SCENARIO: (Purely fictional, in no way related to any actual case either pending or adjudicated) Gunner, a long time gun enthusiast and avid hunter, purchases a brand new revolver that happens to be equipped with the IL. Being a "old school" type of guy, and having read all of the negative publicity surrounding the IL and reports of inadvertent lock up, Gunner decides to disable the IL by removing the internal parts. The result is that he now has a revolver that appears to be "factory stock" on the outside but is missing the internal functioning lock mechanism.

All is well and good. Gunner, being a safety conscious guy, uses his revolver for several years without incident. After a while though, Gunner decides he wants a larger caliber gun, for bear protection, and sells this one on a popular gun auction site. In the description he fails to mention the disabled IL. Plus, he has long since lost/misplaced the removed parts so they are not included when he ships the gun to the new owner. He ships the gun in the original box and all of the original contents which include documents, snap cap and IL keys.

Fast forward a few weeks. Buyer, the new owner of the gun, loves his new firearm. He loves cleaning it, handling it and just looking at it. One day, while cleaning it at the kitchen table, he is finishing up everything and reloads the gun just as the door bell rings. Wanting to hurry, Buyer inserts the key into the IL and turns it, thinking he has locked and made safe his firearm, and leaves it on the table to go answer the door.

While Buyer is answering the door, his 8 year old son sees the gun laying on the kitchen and picks it up to look at it. As an 8 year old would do, he pulls the trigger and the gun discharges hitting and wounding Buyer.

QUESTION: Does the long arm of liability extend back to Gunner who was the original owner and the person who deliberately disabled the IL/Safety device. Had the incident involved Gunner himself or a member of his own family while he possessed the firearm that would be an easy question to answer. But, in this scenario, it is a subsequent owner who is involved and suffers injury. Also, does the fact that Gunner never advised Buyer of the disables IL in any way compound his degree of liability?

LAST QUESTION: if there is judged to be liability, is it just civil or is there implied criminal liability as well?

Google all you want to. I can not find any case law that pertains to second or third level liability but, you can bet, it is sure to happen at some point in time.

I am very interested to read the thoughts from both other legal types as well as casual interested parties.

Bob

 

[diyj98]

I'll leave the legal questions up to the attorneys, but I feel anyone relying on an internal lock to prevent their child from hurting themselves with a firearm is an idiot.

 

[Art Doc]

Bear in mind the IL wasn't invented for the benefit of shooters, it was to satisfy lawyers and lawmakers. We all know never to trust a safety. Not everyone understands that and you can assume that any jury in your criminal or civil trial after a shooting with your modified gun will be specifically selected for their ignorance on guns.

As to your question regarding who would be held responsible, the victim usually sues EVERYBODY in siight. I would never under any circumstances remove or disable any lock or safety device on a gun out of terror (not fear...terror) of being charged or sued at some later date. If you can't stand the IL, don't buy a gun that has one. If you MUST have a gun with an IL, live with it.

I once asked my wife (the prosecuting attorney) if it would help her prosecute or sue a gun owner if he removed a lock or safety. She just smiled the way lawyers do when they smell blood in the water...

 

[ordy]

I'm not a lawyer but the question is interesting. I guess you could argue it both ways. Gunner had the responsibility to forward the information that he disabled the lock and Buyer had the responsibility to thoroughly check out his 'new to him' gun. If I were sitting on a jury, I'd have to say it was Gunner's primary responsibility that makes the difference as far as being liable is concerned. Buyer isn't a gun smith and even if he took the stocks off the pistol, he may not know what to look for. He might clean it up real nice and put a few drops of lube here and there and close it back up without being the wiser.

 

[ImprovedModel56Fan]

Gunner, a long time gun enthusiast and avid hunter, purchases a brand new revolver that happens to be equipped with the IL. Being a "old school" type of guy, and having read all of the negative publicity surrounding the IL and reports of inadvertent lock up, Gunner decides to disable the IL by removing the internal parts. The result is that he now has a revolver that appears to be "factory stock" on the outside but is missing the internal functioning lock mechanism.

I believe that the bolded part of the statement is untrue.

Plus, he has long since lost/misplaced the removed parts so they are not included when he ships the gun to the new owner. He ships the gun in the original box and all of the original contents which include documents, snap cap and IL keys.

. . .

Wanting to hurry, Buyer inserts the key into the IL and turns it, thinking he has locked and made safe his firearm, and leaves it on the table to go answer the door.

Into what has he inserted the key?

 

[Voyager28]

I once asked my wife (the prosecuting attorney) if it would help her prosecute or sue a gun owner if he removed a lock or safety. She just smiled the way lawyers do when they smell blood in the water...

Pose the question to her again under the above scenario. If the injury occurs to a subsequent gun owner, the gun has changed hands, does the liability go back to the original gun owner who actually did the disabling?

Thanks,
Bob

 

[Brasky]

Buyer fails to exercise due care by leaving a loaded firearm in reach of an 8 year old kid.

A reasonable person in the same situation would unload the firearm, place it out of reach, and/or place it in a locked container.

Unloading the firearm and removing the ammo from the area is just as easy as turning the lock. (Likewise storing the firearm unloaded and then loading with a speedloader is comparable in time to turning the lock on a loaded revolver).

An argument can be made against the person who removed the lock and did not tell, but IMO ultimate responsibility is on the buyer to inspect a used handgun/firearm for safety and function before using. You do however see disclaimers on surplus firearms regarding this matter, so obviously people have made attempts to file lawsuits over this.

The lock is a useless "feel good" safety feature that fixes a problem that does not exist. Just as I do not trust the lock on a SD revolver, I do not trust the lock to protect my kids from pulling the trigger on a loaded gun.

 

[Hapworth]

This specific question, and the larger "will making changes to my firearm be a legal liability" question come up repeatedly. They are argued back-and-forth to no particular conclusion.

OP: suggest a search; there's already enough reading on this to make your eyes bleed.

 

[da gimp]

prove that the 1st owner removed the lock & not the 2nd..... & then prove that it didn't come that way from the factory/wholesaler/dealer....... The 1st owner is under no compunction to admit that he had removed or disabled the IL.

The idiot who left a loaded firearm available to the child is at fault..

 

[Retired W4]

Owner of an IL gun (Taurus) is the victim of home invasion. Owner struggles to unlock gun but is unsuccessful. Home invader kills owner and some of his family. Does owner's survivors hold manufacturer of IL liable? Having owned guns with no external safety devices or storage safety aids I believe personal responsibility comes into play with those guns and all others. I've been known to disable series 80 firing pin blocks if it interferes with the feel of the trigger.

 

[Edmo]

The method I use to disable the internal lock on my revolvers is easy to do, 100% reliable, and will never cause any legal issues.

What is my method? I don't own any guns with internal locks! It is not based on a distrust of the ILs, but rather I don't agree with the "nanny state" politics of them.

To be honest, in the last three years I've had two new S&W revolvers which failed internally rendering the guns inoperable. Neither of them had ILs... So based on my experience, you don't need an IL to experience a failure of a current production revolver.

Edmo

 

[wolverine]

Afternoon Voyager28;

That is a good debate & I would imagine that no amount of conjecture on our part could predict the outcome in a court of law.

Child involved brings on sympathy from the jury so they need to find someone guilty of something. Probably the guy with the worst lawyer loses here.

Is the court case in New Jersey or Texas, I would imagine that makes more difference than the actual tampering.

You need to add a little more to your original question to make it realistic--

"Gunner decides to disable the IL by removing the internal parts. Then posts all over the Internet that he removed the locking parts. The result is that he now has a revolver that appears to be "factory stock" on the outside but is missing the internal functioning lock mechanism".

The other thing that needs to be understood is IF he removed the internal parts (basically the flag) then it would be very evident that the locking mechanism had been modified. On the other hand if he left the flag in place & just ground the pin off then there would have been no parts to misplace as all parts would be there just modified to not lock.

 

[woodsltc]

My solution has been simple and fool-proof......I don't buy any S&W's with the "infernal" lock.

Don

 

[jtcarm]

SaxonPig is dead-on right, a tort lawyer is going to sue everyone they possibly can.

About 20 years ago in Dallas, a boy was killed in a fluke accident at an indoor range .. No less than 19 individuals and organizations were named as defendants in the suit.

I'm surprised Massad Ayoob would say that. The only opinion if his I've ever read on the topic said don't remove the. lock.

We can rant & rave all we want about idiots who shoot themselves or others. That might be a valid defense in court, but it won't save you from being sued or arrested and run up enough legal fees to ruin you.

For reference, maybe you should research the Remington 700. There are millions in circulation with the safety defect. I bet more than a few have been knowingly sold that way after the recall was issued.

 

[harleytech1]

They don't bother me as much as it seems to bother everyone else. I have never had one go bad, I Just live with them...FWIW...

 

[Derry 1946]

Andrew Branca advises against it, for what that's worth. Tort law is state specific, so internet wisdom is of limited utility. Self defense is not a defense against negligence. A prosecutor will have a field day with a bubba'ed IL, as will a tort lawyer. If you think the gun is unsafe with the IL, sell it (un-bubba'ed) and buy a gun sans IL.

 

[yep380]

If you remove the lock, remove ALL OF IT.

It's that simple.

 

[kthom]

I mean no disrespect to you, Voyager. What I am about to say only applies in general, not specifically to individuals. As I suspect you are aware, what happens in any court room in any jurisdiction is a **** shoot. Lots of things can make differences, but the same judge, lawyers, and jury panels are never present more than once. Unfortunately, the exception has become the rule, where the common sense and second and third generation attitudes that are held by so many has completely changed the complexion of the "justice" system. Anyone can sue anybody, or file charges against anyone, and the prevailing attitudes are nobody much is held responsible for his or her actions. Somebody must pay, but is it always the "guilty" party? Preconceived ideas and long held beliefs that are not base on real life reality render right and wrong simply what any person decides is right and wrong for themselves. And sadly, money and prestige trumps right and wrong much of the time.

I'm sorry, I didn't mean to rant, but the answer to your question is simply: "It depends". And the ultimate answer in each case is never known until the case is over. But it's certain, the answer will be different in almost each case. And sadly, on top of all this, the person with the gun is considered guilty before any evidence is presented.

Yes, I'm a bit disenchanted with the "system". It's not all bad, and it's still better than the alternative, but it sure doesn't render "justice", at least not in my opinion, very often. I'm not a lawyer, but I've spent thousands of hours sitting in the courtroom observing and participating. When my testimony could not be contradicted or proven false, then my own credibility and motive became the focus of the event. I was the one on trial, depending on a prosecuting attorney who was as poorly paid as I was and all either one of us wanted to do was present the actual facts of the case. The decision wasn't ours. That belonged to the judge and jury, as it still does. Personally, I'd sure hate to be in the hands of most of those today. I'm sure that many can take issue with my feelings. I am proud of the service I believe I rendered on behalf of victims of crime and mayhem. But regardless of how any one feels about my feelings, I think it should be obvious that the only answer to your question remains: "It Depends!" All any of us who take reasonable steps to protect ourselves and our loved ones can expect is to hopefully be alive to endure the mayhem in the courtroom that will undoubtedly follow. It's a choice we make, knowingly or not. And make no mistake, it is and should be a very personal decision, what we do or don't do, because no one on this forum who has given us advice will be testifying on our behalf. Life is too short not to be really comfortable with whatever decision we make!!! That doesn't mean our decision will be upheld, but we gotta live with our own selves, right?

 

[Mark6005]

Very much appreciated prospectives from all who posted. Shows both sides of what can be anticipated or surprisingly and disappointingly a possibility. I have 2 smiths with il no problems thus far so they will remain the same. Once again interesting reading and food for thought

 

[jtcarm]

I disagree. My experience seeing "shotgun" air crash cases (where everybody is sued, even if the theory of liability against some defendants is thin) is that the shotgun approach easily leads to a plaintiff's loss. Juries are confused by multiple and inconsistent theories of liability. The shotgun approach is a great way to lose a case.



A really good lawyer will determine who is most responsible (one or two parties), and focus the litigation against those most culpable.



How did the 19-defendant case come out?

I didn't say it was effective

I don't know how the other 18 fared, but the range got smoked. It did not help when the plaintiffs attorney showed pictures of non-firing rooms (including where the boy died) with foam-filled bullet holes. Not many, but when you think about it, even one is too many. As it was explained to me, the accident was a freak. The bullet ricocheted twice at 30-40 degrees and hit the boy in the head. That was in the 90s and my memory is not so great anymore.

I belong to a big club in the country with a whole complex of ranges. Every time I go out there, I am an ***. I see safety violations and outright stupidity, and call people out on them, none too gently. 1 because now I have my 12 yo son with me and I want him to get started right, but also because I once had another great club like that which now some outdoor playhouse, because the leadership stayed in denial as rounds went off the range. Then people started building houses and they still wouldn't baffle it. Then a .45 round went off the range and through a window. That was the beginning if the end.

My current club is light years ahead in that regard. Now I just have to stay on the lookout for idiots who futz with their guns at the firing line after sending their kids down range to set targets! I see them every trip!