Attorney Question of the Month
In this column, our Network Affiliated Attorneys contribute commentary and opinions about questions that bear on the legal defense of use of force in self defense. This month, we raised a question that comes up occasionally from members in different parts of the country. It is a good example of the variations in law and custom from state to state, and we appreciate the information our Affiliated Attorneys contribute here. This month, we asked–
If I am the legal owner of a suppressor that is kept on my defense gun, and I use that suppressed firearm in self defense, what if any additional legal issues might I face in the aftermath? Are you aware of any self-defense cases in which use of a suppressor was a factor in either the charging decision or in court?
Dale Carson Law
Blackstone Bldg., 233 E. Bay St., Ste. 1101, Jacksonville, FL 32202
It is not the possession and use of a lawfully owned silencer, it is both how it looks and how it sounds (or does not sound) to the jury! The question in the jurors’ minds may well be, “Why does this law-abiding citizen have a silencer?” thinking perhaps the same thing some of our forefathers thought and brought about the restriction in the first place: “Only gangsters use silencers.”
This is yet another layer of education your lawyer will have to provide jurors when all he/she wants to be explaining is how you and your family were viciously assaulted by a night-dwelling convicted felon looking in your home to serve his base desires...if you had not been there armed, well, then...
Also, the Florida stand your ground accommodation only works: “If the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be.” If you are using an illegal gun or an unregistered suppressor, self defense may not apply. Why risk it?
As a final point, the noise of a .45 or even a .22 in a contained environment may often prove sufficient to cause the perp to abandon his mission and flee, which is the ultimate victory for the homeowner.
John I. Harris III
501 Union Street, 7th Floor, Nashville, TN 37219
Tennessee has no statute that would prohibit the use of a legally owned suppressor on a firearm.
However, the practice, if a regular habit with respect to a firearm maintained for home defense, could become a factor in a civil tort claim.
Thompson Law Office, P.C.
1700 Cooper Pt. Rd. SW, Ste. A3, Olympia, WA 98502
From a strictly legal perspective, using a suppressed firearm in self defense should make no difference in the analysis of the shooting, so long as the suppressor has the proper tax stamp approval and you are in lawful possession of it.
However, from a practical standpoint, my opinion is that suppressors complicate a case and can have negative implications. Prosecutors are not always knowledgeable about firearms. In general, attorneys tend to not be advocates of the Second Amendment. When it comes to defensive shootings, in my experience, prosecutors tend to be emotional and not always rational about the purposes of firearms, magazines, accessories, etc. There is a possibility that an ignorant or perhaps anti-gun prosecutor might react very negatively if a suppressor is used; not for any good reason, but because of the general mis-understanding and stigma attached to suppressors.
Many people, even intelligent ones who have been through law school, can’t fathom why an honest citizen would want a suppressor. And if that stigma makes its way into the prosecutor’s thought process, that could tip a close-call case into the category of cases that will be prosecuted. To an extent, the same misconceptions can plague members of a jury, particularly in more urban jurisdictions. For these reasons, I would advise against equipping your home-defense or carry gun with a suppressor–it is just one more hurdle, one more thing to explain in a high stakes case.
Thomas C. Watts
Thomas C. Watts Law Corporation
500 N State College Suite 1100, Orange CA 92686
980 Montecito Suite 101, Corona CA 92879
The question of a suppressor on a weapon is not qualified by whether the weapon is used for home defense. If the suppressor is not legal on your weapon, you will not earn a pass for home-defense use.
If you are forced into a situation of justifiably using deadly force resulting in death, you will likely avoid prosecution for manslaughter and above but likely subject yourself to prosecution for weapons violations.
Personally, I am of a mind to have defense weapons as plain-vanilla as possible. Why would I invite the attention of anybody that would search the rest of my home looking for more violations of the law when I was the one who was defending my rights?
Marc S. Russo
Attorney at Law
25 Plaza St. W. #1-K, Brooklyn, NY 11217
I don’t know all state self-defense statutes so I can’t say definitively. However, it would seem to me that as long as the suppressor is legal in the defender’s state it should have no effect on whether or not a shooting is deemed justifiable or otherwise. It would also seem that even in states where they are illegal, there still should be no effect regarding whether or not a shooting was self defense. In such a state the shooter would be charged for illegally possessing the silencer, even if the shooting was justified. But the mere presence of even a presumably illegal suppressor should not affect that state’s self-defense criteria.
However, despite the above, use of a suppressor could trigger negative reactions–even subconsciously–among the authorities as well as in jurors if the case were tried, especially if there are no additional witnesses to the shooting or if the shooting is on the victim’s own turf. Silencers conjure images of assassination and premeditation.
Licensed to practice law in CA
I am not aware of any self-defense case in which use of a suppressor was an issue. I do know of self-defense cases in which the used firearm was equipped with a suppressor but that never was an issue. In most such cases, the shooting was determined to have been justified and therefore never resulted in a trial. In a few instances, the shooter pleaded guilty to some related incidental and related misdemeanor charge or infraction and was assessed, at most, an insignificant fine: in one case, a charitable contribution suggested by a DA or magistrate.
Eric W. Schaffer
Schaffer & Black, P.C.
129 West Patrick Street #5, Frederick, MD 21701
Maryland has no reported cases or any other instances that I am aware of concerning the use of a suppressor in a self-defense situation. I am sure as suppressors become more common this issue will arise. The only mention of suppressors in Maryland law is in the criminal code (CL §5-621(d)) which provides for a ten-year mandatory minimum enhanced penalty if a firearm equipped with a “silencer” is possessed “during and in relation to a drug trafficking crime.”
As far as keeping it on your defense gun I would just tell the person, like with any other non-typical firearm or accessory, to be prepared to justify it to a police officer or a prosecutor to whom it is possibly unfamiliar. The time to come up with this list is before you have to use it. In addition, it’s always a good idea to have a copy of your tax stamp handy.
This is also where the resources of the Network may be useful in getting an expert to explain all the good reasons for keeping a suppressor on your defense firearm. I personally keep one on my bedside gun and if ever asked will tell truthfully that the main reason is that after eight years in the infantry I zealously guard what remains of my hearing. It’s nothing more than a safety device and there is plenty of data to show how damaging even one shot indoors can be to your hearing. The only liability I see in keeping a suppressor on your defense gun is that you just may have to be the one to bring these points to the authorities’ attention.
A big “Thank you!” to all of the Network Affiliated Attorneys who responded to this question. Please return next month for the rest of our Network Affiliated Attorneys’ answers.
Click here to return to our January 2017 Journal to read more.