Illegal/Incriminating to defend ones self with a single action firearm?

[Erik M]

Im not looking for legal advice, but can anyone point me towards federal case law or an exaple of a case where self defense was negated due to the fact that the defendant 'cocked the hammer' before discharging their weapon? I have been told by a law enforcement officer, shop owner, and now a fellow enthusiast that if you do not fire in DAO that you are facing charges. I carry a Taurus 85 and a Smith 637, both of which are capable of sa/da operation.

 

[Birdmang]

That seems like fishy/misinformation to me...but I wouldn't put it past a DA with an agenda.

 

[nalioth]

You've been fed a load of crap.

You can't fire a single action without cocking the hammer.

There have been some DAs who've gone for the "premeditated murder" angle when the defendant cocked his DA/SA gun prior to defending himself, but there are some DAs who'll go after any fact they think they can leverage.

 

[cambeul41]

Urban legend?

 

[Magoo]

1911s have been around for an awfully long time. "Cocked and locked" is as American to many as "I pledge allegiance...". I ain't buyin' it.

 

[DougD]

I wouldn't put it past a DA, plaintiff's attorney, the media, or a jury which did not have anyone on it who was knowledgeable about firearms. Though it's apples to oranges, see the Arizona Harold Fish shooting in which one of several factors used to convict the man was the fact that he was carrying a 10mm pistol which the DA argued was too powerful for police use and a such, his selection of a 10mm indicated that he was looking for an opportunity to shoot someone. One juror cited this specific argument as the reason she voted to convict.

When you shoot another person, it's supposed to be done in extremis and to save yourself or an innocent third party from impending death or serious bodily injury. The gold standard for such shootings is not that one "shot to kill" but that one "shot to live." In a political subdivision that is not supportive of self-defense rights or gun rights, one could easily argue that cocking the hammer (on a double action weapon) before firing represented a willful, premeditated, and preparatory action committed by someone who knew they were going to shoot another person instead of an act committed by someone who was forced to shoot another person in order to live or save the life of another.

Speaking as a professional LE trainer who has quite a few contact hours with other trainers throughout the U.S., I know of no reputable trainer or agency that recommends cocking the hammer on a double action weapon in preparation to fire at another human being (within normal gunfighting ranges). People can "what if" this to death but it's really not a tactical or legal road that I would want to go down.

 

[Rail Driver]

I have a 1911. There is no DA option. I also keep the gun loaded, chambered and cocked on safe at all times (unless I'm firing, cleaning, or working on the gun). I'd like to see charges brought if I'm involved in an otherwise good shoot because I carry a SA firearm.

Under that logic, could you be prosecuted even further for having to load your weapon and THEN cock it before using it because you keep the pistol and the ammo separate for whatever reason?

 

[DougD]

I have a 1911. There is no DA option.

Exactly. His pistols do.

I also keep the gun loaded, chambered and cocked on safe at all times (unless I'm firing, cleaning, or working on the gun). I'd like to see charges brought if I'm involved in an otherwise good shoot because I carry a SA firearm.

Not gonna happen. The 1911 has been regularly carried in "Condition One" by professionals and amateurs alike for at least 60 years...depending on which historian you listen to. Holsters and training methodology address the carrying condition of 1911's...and the OP's handguns. It all comes down to "objective reasonableness," the "reasonable man test", and "industry standards." One should always use a firearm in the manner that it was designed for. When it comes to DA or DA/SA weapons, you will not find a modern reputable trainer who advocates cocking the hammer for the first shot in self-defense situations. A person is not likely to be prosecuted solely for cocking the hammer before shooting but if one is involved in a controversial or questionable shooting, it will definitely be brought up in court (if known about) and it will almost certainly be used against them.

Under that logic, could you be prosecuted even further for having to load your weapon and THEN cock it before using it because you keep the pistol and the ammo separate for whatever reason?

No.

 

[ColdDeadHand]

If you cock your weapon you could be preparing to shoot it.

If you put on your seatbelt you could be planning to have an accident.

If you buy aspirin you could be planning to have a headache.

If you wear a flotation device, you could be planning to capsize your boat.

Need I continue?

For the record: I do not plan to shoot anyone. Ever. I pray I never have to shoot anyone. But your carry weapon should be ready to shoot someone or you shouldn't be carrying it. I hope I don't ever have to shoot anyone but if I weren't prepared to do so I promise I would leave my weapon at home.


On another note I think all of the above posters are probably right: cocking your weapon is something that could be used against you in court. But then, isn't carrying a weapon the same as cocking your weapon? To that insane DA, you were premeditating murder the day you took your concealed carry class.

 

[JohnKSa]

It is neither illegal nor incriminating.

If there is any suggestion that the gun fired accidentally, however, the fact that it was cocked and the trigger pull was therefore much reduced compared to the normal trigger pull might become relevant.

This really applies only to revolvers.

 

[GRIZ22]

Urban legend

That's it! The circumstances surrounding the shooting determine whether its self defense or not, not what type or how you used the firearm.

 

[M-Cameron]

.......how would they even know whether you fired SA or DA.....?

 

[ants]

Urban legend

My guess is "Gun counter legend".


I would suspect that more false crap about guns has been generated at gun shop counters than any other location, with the possible exception of the Brady Campaign headquarters.

(Don't freak out, just joking )

 

[Carter]

I think cocking it may show that deadly force wasn't imminent. My CC instructor got on to the revolver guys pretty bad about cocking their guns, but he did it from the stand point that they wouldn't have time to do so.

I think in most situations where you actually have to draw your weapon and shoot you won't have time to pull the hammer back. As far as a legal issue...who knows. Depends on the DA, how you articulate the scene, the reporting officer, investigating officer, jury, etc.
I'd be glad I was alive personally. Then I'd lawyer up.

 

[Shadow 7D]

this question entirely depends on your area (as there is different precedent even in federal circuits) as to what the basis of a defense of self defense, but yes it may/could be brought up (self defense is a strategy/plea in a trial, as in front of a judge, and this is different than a prosecutor finding that you acted in self defense and not bringing charges, though in many places they have the same legal basis.

in the end they both are, but each situation and incident is different, and it entirely depends on the what the prosecutor and the jury consider "justified"

 

[9mmepiphany]

The most famous case which drew national attention occurred in FL...I read about it in the Ayoob Files column of American Handgunner. It was an incident when an arresting officer had cocked his revolver, which discharged while arresting a BG. The name of the case escapes me at the moment but there were resulting riots and the department had all their pistols converted to DAO to avoid future liability issues stemming from officers cocking the guns.

It isn't that it is illegal. What cocking a pistol, which has the option of being fired in the SA or DA mode, does is rise issues which an ADA or Civil attorney can latch onto when either determining if charges should be filed or the which course to follow to attach negligence.
1. pre-meditation - the action was taken before the determination of the presence of immediate danger
2. inadvertent - setting a hair trigger
3. negligence - although this would be a claim in any event

If you are willing to provide that additional opening to opposing attorneys, that is your choice. I think cocking a DA/SA revolver is a bad tactical choice in a SD situation...but I'm sure a lot of that is just my LE training speaking

 

[Frank Ettin]

The most famous case which drew national attention occurred in FL...I read about it in the Ayoob Files column of American Handgunner. It was an incident when an arresting officer had cocked his revolver, which discharged while arresting a BG. The name of the case escapes me at the moment but there were resulting riots and the department had all their pistols converted to DAO to avoid future liability issues stemming from officers cocking the guns.

It isn't that it is illegal. What cocking a pistol, which has the option of being fired in the SA or DA mode, does is rise issues which an ADA or Civil attorney can latch onto when either determining if charges should be filed or the which course to follow to attach negligence.
1. pre-meditation - the action was taken before the determination of the presence of immediate danger
2. inadvertent - setting a hair trigger
3. negligence - although this would be a claim in any event

If you are willing to provide that additional opening to opposing attorneys, that is your choice. I think cocking a DA/SA revolver is a bad tactical choice in a SD situation...but I'm sure a lot of that is just my LE training speaking

I also remember reading about the case, and I agree with the analysis. Cocking a DA/SA revolver just becomes a wild card.

Of course if your gun is SAO (revolver or semi-auto), you must have it cocked. But it's probably best not to cock a DA/SA revolver. Learn to shoot it well DA.

 

[Girodin]

I have been told by a law enforcement officer, shop owner, and now a fellow enthusiast that if you do not fire in DAO that you are facing charges.

LEOs (particularly local police) tend to have a much much more limited knowledge about the law than most people think. This is not a put down it is just that their job does not require more than that and very few of them will have training to give them more than that. I never cease to be amazed at the BS I hear in gun shops.

Self defense is, in most cases, going to be a matter of state law. Laws and precedent vary state to state, but in most state you have requirements that are roughly similar and tend to be things like the following:

You are justified in using deadly force when you have an objectively reasonable belief that you are in imminent danger of death or serious bodily harm.

I suppose one could argue that cocking a hammer could be probative towards the issue of imminent but I do not see how it could reasonably be considered dispositive on that point or even very weighty. Now every bit of evidence that is put forth doesn't need to be a home run and in a case sometimes evidence that is far fetched might be proffered in the hope it might have some effect. Who knows what an individual juror might latch on to.

I would be more than astonished to learn of a per se rule in any jurisdiction that cocking a hammer prior to discharging a weapon precluded a claim of self defense.

As others have mentioned another way it could be an issue is in an argument that the gun accidentally discharged as opposed to it being fired deliberately in self defense.

What I would be much more worried about is whether the elements of self defense are clearly met or not. People in discussing cases that go to trial and may involve some of these details being presented to the jury like to focus in on the idea of one little thing swaying a jury while ignoring the big picture that the shooting in the first place was very questionable to even go to trial let alone get a conviction.

For example Fish shot a guy that was unarmed and it was far from clear that shooting was Fish's only recourse. Fish followed that up by making inconsistent statements to the police concerning what happened.

Fish also wasn't helped by errors committed by the court. Errors that eventually led to a reversal and remand. Charges have not been refiled (at least in part thanks to a substantive change to state law regarding burdens of proof inspired by the case).

Yes the prosecution made arguments related to his 10 mm and hollow point ammo but those were far from dispositive in how that case went down. Also from what information I've seen his counsel did a dismally poor job of refuting such absurd arguments, in short they simply didn't. Had Fish had a 9mm and not a 10 mm he still would have been in court and very likely still would have been convicted.

 

[Shadow 7D]

Here, look at it this way, how many times have you been told to rack the slide of a shot gun so the BG 'will run in terror'

There a ADA could argue that you are add to or 'inciting' a situation vs deescalation,

BUT a decent attorney would block this line of questioning infront of the judge (so it's never put infront of a jury) by simply stating, and back it up with evidence, that you kept the shotgun unloaded, or closed on a empty chamber, etc. for safety, hence, to use deadly force, and meet a imminent deadly threat, you have to rack the slide.

This entire line is much like what ammo to use, or No ReLoads for self defense because you will be charged. Hey the truth is, pull a gun with the knowledge that you will pay the Lawyers 20k to prove you were defending yourself.

 

[Frank Ettin]

...Hey the truth is, pull a gun with the knowledge that you will pay the Lawyers 20k to prove you were defending yourself.

If you can get things resolved for $20K, you've gotten off cheap. You need to figure that legal and expert fees through a jury trial will run from $50,000 to $150,000, or perhaps even more.

And while none of this might matter if everyone agrees it was a "good shoot", if you're on trial, there's some disagreement about whether it was a good shoot. If you're on trial, it's not a good shoot unless the jury decides that it was.

 

[dusty14u]

Here is a story of a SA gun used to kill a robber who shot a clerk in a small grocery store in Richmond Va. His gun broke and he was still able to fire it. He was open carrying at that time. He was not prosecuted.

http://www.wtvr.com/wtvr-shooting-golden-food-market-090711,0,2691670.story
http://www2.timesdispatch.com/news/2009/jul/13/robbgat13_20090713-122201-ar-37421/

http://vagunforum.net/general-discu...d-lives-richmond-shooting-saturday-t1225.html

 

[LHRGunslinger]

I am not a lawyer but here's my guess:
If you're running a DA/SA weapon fire it as if it was DAO.
If you're running a single action only weapon fire it appropriately.

 

[loadedround]

Very interesting comments. But one point I'd like to make is with the exception of a SA revolver, who is to know mode, DA or SA action you fired the shot(s) and I doubt if the authorities would think to ask you, assuming you fired a DA/SA pistol.

 

[TexasRifleman]

Any time a story starts with "I heard in a gun store......."

As with a lot of these things, there is always a chance that some DA would use just about anything against someone in a self defense shooting, but no one has been able to show a case where the OP's scenario actually happened, so we'll call it urban legend for now.