LAV bans AIWB for his courses

[Mitchell, Esq.]

Lol. Well said. I'm guessing that you have a pretty good win/loss ratio

I settle most things or dispose of them on pretrial motions.

Trial is best avoided for the same reasons knife fighting is avoided - it is untidy, unpredictable and full of unpleasant surprises.

This year I've done 2 family trials. They sucked.

In contrast, a federal civil rights lawsuit settled, a machine gun got sprung from lockup (personal best is the m-60 but that was last year...this was only a M-16) and 3 people got pistol permits based on letters asking for reconsideration of denials.

Win. Loss...eh. Not my thing.

I'll take the results and not sleeping in the conference room during trial prep.

That said, if the opposition doesn't want to be reasonable, game on...

But I prefer to just get what the client wants with less mess.

[Sigfan26]

I settle most things or dispose of them on pretrial motions.

Trial is best avoided for the same reasons knife fighting is avoided - it is untidy, unpredictable and full of unpleasant surprises.

This year I've done 2 family trials. They sucked.

In contrast, a federal civil rights lawsuit settled, a machine gun got sprung from lockup (personal best is the m-60 but that was last year...this was only a M-16) and 3 people got pistol permits based on letters asking for reconsideration of denials.

Win. Loss...eh. Not my thing.

I'll take the results and not sleeping in the conference room during trial prep.

That said, if the opposition doesn't want to be reasonable, game on...

But I prefer to just get what the client wants with less mess.

I don't quite understand all of what you just said... But, I'll agree with it!





Damn, you're good!!!!

[Mitchell, Esq.]

Exactly.

Now if I can get the AG to kick loose my BAR...

I mean the client's BAR...

Sigh.

[Kingsfield]

Mr. Hayes:

You've solicited observations on the accuracy of your summary of law (albeit directed at another):

...
Again, the question is for you, Mr. Prosecutor, is what I said correct, incorrect or what? If you don't want to play anymore, that is fine. I am still here though.

I teach Contracts and Firearms Law, among other subjects, not the basic Torts class. The law in a particular jurisdiction where litigation happens is what is relevant to that dispute. A fifty-state discussion is not practicable, particularly for me, as this is not within my area of scholarly focus. So, I would not undertake to provide guidance as to a particular instructor (any instructor would need to discuss the pertinent issues with his or her individual counsel, and not rely on my academic observations). Nevertheless, I would make the following observations, from an academic perspective, as to the variation between a typical treatment and your discussion:

... It is recognized in tort law that when a professional takes money for services, that establishes a duty for the professional instructor to act reasonably, and in accordance with the industry standard of care. If not, then they breech [sic] the standard of care, and if numbers 4-5-6 are proved, then the professional is likely held liable.

So, having said that, does allowing a student to use an AIWB holster breech [sic] the industry standards for reasonable safety protocols? If an instructor also teaches the 4 safety rules, (which can be likely argued ARE the industry standard in gun safety) then are they not allowing violations of rule #2? ....

One can easily find numerous statements to the effect that non-compliance with industry safety protocols is not necessarily negligent; rather, it is just a factor. See, e.g., Restatement 2d Torts § 295A, cmt. c; Restatement 3d Torts § 13(b) (comment c citing authority from 8 different jurisdictions to support that conclusion); American Law of Products Liability § 12:36 (3d ed. through May 2015). (I've decided not to cite cases, because I don't want to appear to be expressing an opinion as to the law in a particular jurisdiction.) Your comment indicates actions not "in accordance with the industry standard of care" would necessarily be a breach of the duty.

That many other folks ban AIWB might well be relevant, and capable of being introduced in litigation. However, I do not believe you have provided any authority that it is always (or even generally) going to be dispositive as to a breach.

Is it possible that, as to some particular jurisdiction, it could end up being dispositive? Of course.

I also believe to be poorly constructed your discussion concerning whether the four rules of firearm safety mean AIWB training is necessarily in violation of a standard of conduct.

You wrote:

... If an instructor also teaches the 4 safety rules, (which can be likely argued ARE the industry standard in gun safety) then are they not allowing violations of rule #2?

I understand from that you are concluding that AIWB necessarily violates the four safety rules. I'm not going to opine whether it is or is not the case that necessarily AIWB violates the literal terms of the four safety rules--a detour into that would end-up obscuring the basic point.

Numerous well-regarded trainers are reported to allow AIWB usage in their classes. To say that they do so, but also reference the safety four rules, does not mean they are violating some standard of conduct embedded in the four safety rules. Rather, it would mean that, as is the case with many rules stated succinctly, the meaning the rules intend to convey is more nuanced than that which tedious literalism would yield.

***

I again note that the above discussion is framed from the perspective of an academic inquiry. I am not providing legal advice to anyone; the law varies substantially among jurisdictions. And what is important for purposes of a particular dispute is the law of the governing jurisdiction, not that of other, typical jurisdictions.

***

I practiced for a number of years before becoming an academic. Law school involves a student's development of a skill in identifying risks. Subsequent legal experience will, in some, generate the judgment necessary to provide a balanced presentation. Some segment of practicing lawyers are identified as "deal-killers". In particular, there are assorted legal risks with all sorts of transactions. Good counsel make cogent assessments and presentation of the pertinent risks. Deal-killers do not, and merely present a distorted parade of possible risks, providing a disservice to their clients.

***

As to your subsequent observations concerning duress, I note that focusing on either of the following might provide a more productive line of investigation:

(i) Absence of consideration for a release signed after a contract for provision of services has been formed (e.g., through charging a credit card deposit), if the need for a release is not communicated at the time a contract is formed; and

(ii) Even if there is reference to a release at the time of contract formation, in some jurisdictions (although I gather a minority) whether it was adequately made available to the consumer. See generally Scott’s Valley Fruit Exchange v. Growers Refrigeration Co., 184 P.2d 183, 189 (Cal. Ct. App. 1947) (“incorporated document must be known or easily available to the contracting parties”).

[wrmettler]

An instructor cannot “prevent” a student from injuring himself or another. That is a guarantee, and no one can guarantee the safety of another. Because it is the student’s conduct causing the injury, i.e. the drawing and firing, no instructor can prevent (guarantee) that student drawing or holstering a weapon will not injure himself or another. I believe this to be correct even with a 1:1 student to instructor ratio and regardless of what type of holster. Ultimately, it is on the student to work carefully in all holsters.

Liability is a term of art. It means, in tort, the existence of a duty, breach of the duty plus causation. Without any one of those three elements, there is no liability. The 4 elements of a tort in Arizona are duty, breach of duty, causation (together = liability) and damages. That’s pretty standard, I think.

Duty is a question of fact (in Arizona) to be determined by the Jury. Experts can try to establish the duty and breach of duty through their opinions. The jury decides whether to accept an expert’s opinions. Witness Mr. Farnam’s video.

Standard of care is duty. In Arizona, in cases where a jury may not know the workings of a profession, such as lawyers, doctors, and perhaps, firearms instructors, an expert may establish a standard of care (i.e. a duty) with regard to what the instructor should have done, and what action actually violated that standard. Experts are not needed with regard to “everyman’s knowledge” such as driving cars, etc.

Mr Hayes believes that AIWB allows a firearm to always address the shooter’s body. It therefore violates Rule 2 of Cooper’s rules. I assume therefore that Mr. Hayes is prepared to testify that the standard in the firearm instruction industry requires no instructor allow AIWB in their class, and that as an expert in Court Mr. Hayes is prepared to testify that anyone who allows AIWB in their class has breached that standard of care. So, if a firearm instructor gets sued, Mr. Hayes will testify that, in fact, the instructor breached the standard of care and that breach caused the Plaintiff’s injuries.

Is that right? Mr. Hayes do you publish yourself as an expert prepared to testify against the firearms instruction industry? Do you have a CV, and will you allow it to be published?

Of course, other experts have other opinions, but Mr. Hayes opinion seems a simplistic, broad stroke to express in Court since a lot of shooters believe that AIWB is fine. I’m sure some very experienced people, not professional expressers of opinions, would dispute Mr. Hayes’ opinion.

[GJM]

OK, the court hereby accepts the amicus brief from Mitchell, recognizes Kingsfield and Mettler as experts, and rules in favor of Barnes in his summary judgement motion against Hayes.

Now can we get back to important stuff like wedges on holsters, cord locks and dish towels in trigger guards, whether the LAV carries, eye dominance and all the other stuff that had propelled this drama through almost a whole season at PF. Darryl, no more new revolver threads until you post in this thread -- you do butthurt better than anyone and that keeps this stuff real.

[Marty Hayes]

I am tied up today (away from computer, so do not have the ability to address $408 and #409. But let me say, that in this discussion, I have never stated AIWB is too dangerous, never said it violated any rule, never said it violated any standard of care, never said I was an expert in anything, let alone, and never said I was willing to testify in court. I have been asking questions about the practice and discussing basic legal concepts that I learned in my first year of law school, and applying those concepts to the practice of instructors allowing and/or AIWB in their classes. People seem to want to put words in my mouth that simply are not there and jumping to conclusions. Go back and read my posts.

I decided to join this conversation in order to get instructors thinking about the legal consequences of the practice, something that had been lacking in the 30 pages before I joined it.

[s0nspark]

I decided to join this conversation in order to get instructors thinking about the legal consequences of the practice, something that had been lacking in the 30 pages before I joined it.

I am in the peanut gallery on this but I just have a hard time accepting that there demonstrably ARE legal consequences for an instructor regarding AIWB in a training class. I would think an instructor's legal culpability for an injury could be settled based on other evidence long before a student's chosen method of carry entered in to it.

[runcible]

I am tied up today (away from computer, so do not have the ability to address $408 and #409. But let me say, that in this discussion, I have never stated AIWB is too dangerous, never said it violated any rule, never said it violated any standard of care, never said I was an expert in anything, let alone, and never said I was willing to testify in court. I have been asking questions about the practice and discussing basic legal concepts that I learned in my first year of law school, and applying those concepts to the practice of instructors allowing and/or AIWB in their classes. People seem to want to put words in my mouth that simply are not there and jumping to conclusions. Go back and read my posts.

I decided to join this conversation in order to get instructors thinking about the legal consequences of the practice, something that had been lacking in the 30 pages before I joined it.

Could you tell us about your personal and professional opinions, regarding these very subjects, please?

[Mitchell, Esq.]

OK, the court hereby accepts the amicus brief from Mitchell, recognizes Kingsfield and Mettler as experts, and rules in favor of Barnes in his summary judgement motion against Hayes.

Now can we get back to important stuff like wedges on holsters, cord locks and dish towels in trigger guards, whether the LAV carries, eye dominance and all the other stuff that had propelled this drama through almost a whole season at PF. Darryl, no more new revolver threads until you post in this thread -- you do butthurt better than anyone and that keeps this stuff real.

I'm filing a motion for removal to the federal court to get a different judge.

(Ok...really because Federal clerks are hot. Seriously smoking hot. Don't judge me. You would too. Ask Todd...)