Punisher Skull on a Self Defense Firearm

[Kukuforguns]

Long post. The short version is, listen to attorneys who UNIFORMLY tell you that decorating your defensive gun with logos like a skull is a bad idea. We all say the same thing. That's called a clue.

Here's a list of quotations and citations to appellate opinions that relate to the admissibility of tattoos. Note, these cases are not ones where the tattoo was being used solely for identification, but rather where there was at least a concern that evidence of the tattoo would be used to create an unfavorable impression of a party or witness. While these cases did not involve decorations on guns, the issue is exactly the same -- is artwork admissible for intent, motive, etc.[See Footnote.]

Here defendant's affinity for guns as demonstrated by his desire to have them inscribed on his body had some probative value. "[T]he existence of a gun tattoo on someone's body gives rise to the inference that that person may be familiar with and be around guns...." (People v. Kennedy (2005) 36 Cal.4th 595, 619, overruled on other grounds in People v. Williams (2010) 49 Cal.4th 405, 459.)

People v. Ragan, No. C063253, 2010 WL 4546696, at *4 (Cal. Ct. App. Nov. 12, 2010)

DNA from several individuals on the gun marked it as a gang gun rather than solely for Guerrero's use, and Guerrero stored the backpack containing the gun and ammunition in an area he saturated with paraphernalia inscribed with gang markings, including a planner, photo album, sunglasses, and a belt, photographs of individuals wearing gang colors, and documents containing gang graffiti. (See Sanchez, at p. 677 [gang expert properly may testify to the meaning of symbols used by gangs, beyond jurors' common experience].)

People v. Guerrero, No. G049687, 2017 WL 1326320, at *7 (Cal. Ct. App. Apr. 11, 2017), review denied (July 19, 2017)

The district court in the present case, however, gave a jury instruction specifically relating to the tattoo evidence, stating that "[e]vidence of the [ ] tatoos [sic] must not be considered by you in determining if the Defendant committed the offense charged in the Indictment." We will presume that the jury followed this instruction, United States v. Neuhausser, 241 F.3d 460, 469 (6th Cir.2001) ("We have often stated our presumption that jurors follow their instructions.") (citing several cases), unless we conclude that the evidence that was admitted was so prejudicial that Newsom was deprived of a fair trial. United States v. Burns, 298 F.3d 523, 543 (6th Cir.2002) ("The presumption is overcome only where evidence has been admitted that is so prejudicial that, even with a limiting instruction, the defendant's right to a fair trial is compromised."). Although we conclude that the tattoo evidence was improperly admitted (see Part II.A.2.a., above), the degree of prejudice to Newsom *605 did not rise to such a level that he was deprived of a fair trial.

United States v. Newsom, 452 F.3d 593, 604–05 (6th Cir. 2006)

14. Plaintiffs' Motion In Limine To Exclude Evidence Of Decedent's Tatoos: This Court EXCLUDES evidence of decedent's tatoos except to the extent such evidence is necessary to show location of wounds and similar matters.

Galvan v. Yates, No. CVF050986LJO GSA, 2008 WL 650282, at *3 (E.D. Cal. Mar. 5, 2008)

Appellants also challenge the court's decision to exclude evidence of Petrash's tattoo of a confederate flag. Appellants contend that it is probative, arguing that "a sizeable percentage of the population believes the confederate flag to be a symbol of slavery and Jim Crow Attitudes. Second, they assert that any prejudice stemming from the introduction of the tattoo is not "unfair" prejudice.
The record contains an extensive discussion by the court providing its reasons for excluding evidence of the tattoo. The court's primary reason focused on the time frame in which Petrash made the decision to apply the tattoo. Petrash got the tattoo in 1958, at age 19, while on shore leave in the Navy and apparently under the influence of alcohol. Accordingly, any racial animus that might be associated with such an act was too remote to be probative of discriminatory intent.

Henderson v. City of Houston, 273 F.3d 1108 (5th Cir. 2001)

Lexie Smith, Jr. is apparently now sporting a tatoo on his forearm styled "THUG." The defendant seeks to prevent the government from making any reference to the tatoo. The government shall not mention or seek to introduce evidence concerning Lexie Smith, Jr.'s "THUG" tatoo without first approaching the bench.

United States v. Smith, No. 95-40083-03-SAC, 1997 WL 50301, at *1 (D. Kan. Jan. 22, 1997)

Second, defendant argues that references to Nazism prejudiced the outcome of the trial. We find that the prosecutor's reference during the cross-examination of Kelley to defendant's swastika tatoo was clearly inappropriate. This evidence bore no relevance to the case and could be viewed as inflammatory and an attack on the character of defendant.

State v. Weisheit, No. 61821, 1993 WL 127062, at *4 (Ohio Ct. App. Apr. 22, 1993)

Those cases should give you an idea of what would happen in a case involving a person who used a gun decorated with a punisher logo to shoot another human. Why do you think one attorney wanted to introduce evidence that the defendant had a Nazi tattoo?

This gets me to a common misconception regarding what trial looks like. I think a lot of non-lawyers have an inaccurate impression that trial involves the introduction of evidence that can only be used for its logical value.

Bullshit.

Aristotle identified three different rhetorical devices to persuade an audience: logos, pathos, and ethos. Lawyers use all of them.

• Logos is logic.
• Pathos is an appeal to the audience's emotions designed to induce the audience to reach the desired result. Lawyers use pathos in limitless ways. We've all heard decedents referred to as choir boys. A lawyer will use evidence of a decorated gun to create a negative emotional response to the gun's owner.
• Ethos is convincing the audience that the speaker has sufficient moral competence, expertise, and/or knowledge to be believed. Here again, lawyers use this in many ways. For example, lawyers frequently try to hire an expert who is the author of a definitive treatise -- even if the author is not the most knowledgeable person in the field. There's value to having the opponent's expert testify that she used your expert's textbook in school and still refers to it. My expert is better than yours.

There are rules of evidence that are intended to try and minimize the use of pathos. For example, Federal Rule of Evidence 403 states:

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

However, Rule 403 expressly requires a balancing test. How useful is the evidence to logically prove an issue versus how unfairly (emotionally) prejudicial it is. Lawyers are creative. They want to get emotional content before the jury and will spend lots of brain cycles trying to figure out how to get emotionally charged evidence in front of a jury by promoting the logical utility of the evidence.

Q: Is this the gun you used to shoot my client's only son in the head, killing him?
A: Yes.
Q: And you know it's your gun because of the Punisher logo you put on it, right?
A: Yes.

So, the attorney can legitimately claim he introduced the logo to establish ownership. But, the the jury now knows the defendant put the logo on the gun. The attorney also played on the jury's emotions by calling attention to the fact that a mother lost her only son.

My conclusion is simple. Don't do it. Attorneys are paid to win -- especially plaintiff's attorneys. They frequently don't get paid unless they win. Attorneys will use everything they can to win. They will take a little piece of insignificant evidence and try to convince the jury that the evidence is concrete proof of an important issue. Think about how much better you are with a gun than random street thug because you practice to win. That is lawyers with words.

A logo like the Punisher's is ammunition for an attorney. Your carry firearm should be about function. If you want to decorate a gun, decorate your barbecue gun.

Footnote: Yes, I looked for appellate opinions involving drawings, logos, and inscriptions on guns. There are many opinions stating inscriptions on guns can be used to establish the gun is an article of interstate commerce. There are lots of cases of people drawing guns (both in the sense of deploying a gun and in the context of sketching a gun). There are cases that a manufacturer's logo on a container gave officers probable cause to believe a gun was inside the container. My search query returned hundreds of responsive cases. I did not read them all to find out if any of them involved the issue we're discussing here.

[MistWolf]

If you want your criteria to be "show me the court case"...you will be getting some very skewed info. The shenanigans I have seen within the total legal system regarding firearms and use of force is simply astounding. How much you want to add tinder into that fire pit is up to you.

Easy, there. Note that I also included first hand experience, which from your post, I judge you clearly have.

I'm not trying to prove anything because it's become obvious I have nothing I can prove. I started this thread in this forum because I trust you guys

[Stephanie B]

Quote Originally Posted by MistWolf
Please, no "what ifs" and no speculation. Please cite from documented cases or first hand experience

You are asking the wrong question. I am going to hit and run this thread because of my schedule for the next week, but I will add this from a guy who did the gun stuff in support of litigation and criminal court preparation for a police agency for almost two decades in a highly litigious area. You assume there are court cases. Reality.....very few cases go to juries. Most are settled well ahead of time either via a plea bargain, dropped charges, or some other adjudication. That is on the criminal side. On the civil side it is a game of adding and subtracting zero's and coma's. Most are handled in arbitration of some sort well before trial, and even when they go to jury trial, they are often bargained again prior to the jury deliberating.
So....only the outlier cases ever see a courtroom. ... How much time and money is that worth? Can you beat it in civil court....maybe, but again, how many zero's and coma's and attorney's fees is that logo worth?

^^^^^ This. Even in a cheap jurisdiction for trying civil cases, your legal fees will be easily into five figures for a civil case. It could get easily into matters of psychology, which will call for a Battle of the Experts.

So fine, go ahead, engrave "The Punisher" logo on your carry gun. Hell, engrave "Smile and Wait for the Flash" on the muzzle while you're at it. And if you do shoot somebody, you may have just bought the opening ticket in the case of "The Other Guy (or His Survivors v. You." What the hell, your local litigators have bills to pay. (Remember, defense work is billed by the hour.)

[Jeep]

I've never seen a case in which a slogan is on a gun. But I will tell you that every competent trial lawyer will tell you that you increase your real-world risks for the reasons set forth above and those Glenn Meyer and DB explained.

The basic reason is that there is a lot of randomness in the judicial system. Juries are notoriously random, but there is a lot of randomness in bench trials and you never know what people will seize upon as "proof."

Now the truth is that civilians are unlikely to ever have to pull a carry gun, and even more unlikely to have to use it. But if and when that happens, having a "punisher" logo on it will increase your risks by some unquantifiable--but not necessarily immaterial--amount. And it would be a shame if a PF member were the test case for what happens.

[Hambo]

Long post. The short version is, I'm giving you at least $800 in free legal advice. Try to follow it.

Translated to laymen's terms.

[Kukuforguns]

Originally Posted by Kukuforguns View Post
Long post. The short version is, I'm giving you at least $800 in free legal advice. Try to follow it.

Translated to laymen's terms.

I don't always take free legal advice from the interwebz, but when I do, I trust people named Kukuforguns.

[Jeep]

^Post of the day!^

[Mitchell, Esq.]

I have a couple of very specific questions. Please, no "what ifs", no speculations. Just real cases and first hand experiences.

Will having a Punisher Skull or similar motif on a firearm prejudice an investigator, District Attorney's office or jury against you?

Have there been cases where having a Punisher Skull or similar motif, on a firearm used in self defense, harmed the credibility of the person claiming self defense?

I'm asking because of a discussion I was foolish enough to get involved in on another forum. The prevailing opinion is that one should avoid such motifs like the plague because it will be used against you. That it gives the perception that you wanted to live out some vigilante fantasy.

My contention is that, if it's a good shoot, the skull won't matter. If it's not a good shoot, not having the skull won't matter. That if your skull decorated firearm is on full display in court, you screwed up.

I don't advocate decorating firearms with skulls. But I think that by the time you find yourself on trial for a shooting, there are other extenuating circumstances and the skull motif is the least of your worries. Or, am I off my rocker?

Let me make this really easy.

I'm a lawyer. I do criminal defense work among my various jobs.

In all cases, my job is to convince people of things, so essentially, I'm a part time salesman, part time actor, part time writer & researcher...but full time bullshit salesman.

What am I selling?

I'm selling you.

I need to take you, your situation, your gear and your back story...then present it to the po-po/prosecutor/judge in a way in which they are comfortable accepting that, in conformity with the law, you committed horrifying acts of well executed violence upon your fellow man leaving someone either maimed, dead &/or in multiple pieces.

Now - self defense is based on reasonable choices, i.e. the reasonable man in your situation would have put a bullet in someone's head because it was the reasonable thing to do in that situation.

Reasonable is subjective and objective. Subjective as to you (what did you observe, how did you interpret it, did you have a good faith belief that what you observed and interpreted was a real threat that justified the actions you took?) but Objective as to the finder of fact (does the person evaluating your actions believe your actions, based on your observations/interpretations, was something that, for lack of a better term, made sense& are something that society will tolerate - given the right situation, blowing limbs off people with shotguns is acceptable...because the sales pitch is everything).

I mentioned sales - some situations sell themselves.

A home invasion in which the home owner decapitates Pookie & T-Dawg via Flite Control 00 delivered from a Beretta Tactical Shotty as they are coming up the stairs is like a porterhouse (medium rare, seasoned with salt & fresh ground pepper) & a bottle of Cabernet (or chardonnay if you are a heathen...don't be a heathen...).

You don't need to dress it up much, because it sells itself.

They kicked in your door, you defended the homestead. Absent some weird factual circumstances it is very clean. It tastes 'right' to a government official reviewing the reason why the morgue has new occupants.

An ambiguous circumstance in which things aren't clear...one in which we don't quite know what happened, cross racial shooting or shooting a 6 foot tall, 200 pound "kid" who is "troubled"? A situation in which you have entry wounds in the back either due to a struggle or bad guy turning as you were getting ready to shoot?

Well. That's like me trying to sell you on eating roast cat.

I can cook it up fancy. I can put some sides with it...

But it is still a cat.

You aren't going to eat it unless I do a LOT of work.

In that case, your punisher logo is not going to help me make the sale.

It will not help me connect with the jury.

It will not help you convince people that you were acting as a reasonable person because unfortunately, packaging matters.

[PNWTO]

Let me make this really easy...

Fantastic post and really the truth of the matter. Take that nice porterhouse with some Heinz ketchup on it.

Your post reminds me of a friend of the family who is a very successful criminal defender in this area; he once said "I hated law school but I like reading and I've always loved the theater and being on a stage". Seeing him in the courtroom fighting an uphill battle is a thing of beauty.

[Mitchell, Esq.]

Show me a court case where the deciding factor was a modification on a firearm. I'm not talking about something really stupid like "hello fuckface" "wait for the flash" or something stupid like that, likely that can be used against a person. I'm talking about trigger weight, barrel color, modifications like an Agency Glock or something like that. I've yet to a see single case posted.

Fact is, if it is a good shoot, it's a good shoot, having a modification other than a stupid phrase or something clearly racist/etc on it is not going to make it a bad shoot all of a sudden, and if that's the point of contention, show me evidence via such cases.

Caselaw.

Sigh.

Rant on:

RE: People on the inter-webx.net who, in the context of a discussion of any issue related to firearms or self defense, demand you "Show them the caselaw!"

They are just showing their ass.

We have 50 different states. We have 94 US District Courts in the federal judicial system. That is 144 different trial court systems in the USA - assuming I haven't missed any (tribal courts...not sure if they have felony jurisdiction?).

Even assuming something went to judgment on a motion or after trial (to a judge – juries don’t make caselaw because they don’t write decisions) a ruling of a trial court is not binding on anyone other than the litigants involved…not even the judge.

(Do they try to be consistent with prior rulings of that court, yes. Are they bound to do so, no.)

We have 50 state courts of intermediate appeal & 50 different state supreme court. We have 12 federal circuit courts of appeal in the federal system.

Above then all is the US Supreme Court.

Got a Kentucky case directly on point? Don’t fucking care – I’m in Connecticut.

Have District Court for the District of Connecticut caselaw directly on point? Wait…still don’t care because I’m in a State of Connecticut trial court while you are citing a federal judge’s ruling which may be persuasive but not binding.

Got another judge’s ruling on a similar issue that came from the judge down the hall? Great – Your judge thinks the other judge is a raving alcoholic and should retire because he doesn’t keep up with the times.

Something from the Second Circuit Court of Appeals which is an appellate court in the federal system which covers Connecticut that is on point for the same issue…OK, now I’m interested, but still, not controlling in a state court so I’ll use it to bolster my argument, not make my argument.

So now – appellate courts!

The first level of court of appeals is an appeal by right and you usually only get a hearing before a 3 judge panel, not the entire appellate bench. Those three judges write a decision binding on lower courts – but not their own peers on the appellate court of that jurisdiction, appellate courts of other jurisdictions or any supreme courts (that state’s or SCOTUS). (Do they try to be consistent with prior rulings of that court, yes. Are they bound to do so, no.)

Appeals beyond that 3 judge panel (rehearing en banc, certification to the state supreme court or SCOTUS) are by certification only and are rare.

Oh, and guess what – appeals do not deal with the underlying facts of the case.

Appeals of all levels deal with the application of law to the facts and decide only if the lower court’s rulings were inconsistent with law.

But let’s go further down the caselaw rabbit hole to show why asking for caselaw is showing one’s ass, OK?

You do not get caselaw when:
1) The case is dismissed before trial.
2) The case results in an acquittal at trial.
3) The case results in an agreed upon disposition (99% of all cases, both criminal & civil, result in settlement).
4) The case results in a conviction at trial but an appeal is not filed.
5) The case results in an appeal but the issue of the modification of the gun was an issue of fact at trial, not an issue of law which was preserved for appeal.
6) The case results in an appeal but the issue of the modification of the gun was an issue of fact at trial & was preserved correctly for appeal; however, an inadequate record was presented on appeal resulting in the appellate court saying “Fuck off & die!” in legalese meaning that the record presented by the appellant didn’t contain sufficient information for the appellate court to conclude that the trial court was incorrect. That’s pretty common.

OK – let’s say you do have an issue and want to find cases which are helpful to your client (or you want to find out how badly he’s fucked – same difference…) so you power up the tablet, grab a starbucks espresso & a shortbread cookie (can’t practice law without them!) and log into Westlaw or Lexis for some legaling!

Oh, yeah – you don’t have access to westlaw, do you? That’s because it isn’t free like Wikipedia, gun forums or facebook…Sorry.

What do you (well… “I”) search for?

Well, for those of us who went to an ABA approved law school (I do not hold a degree from the University of Google, Wikipedia College of Research or Facebook College of Law) we are taught to do something called “Issue Spotting”.

That means we look at the facts of the case and we try to fit the facts into established legal doctrines so we can persuade a court to view the facts presented in light of a legal doctrine that is most similar, well developed & helpful to our interpretation of the facts.

OK – Modified gun involved in a use of force incident.

We have:
1. Laws related to homicide/manslaughter/self-defense – Well developed with a lot of cases on the topic, but not really looking like it will help us address the issue of the equipment.
2. Automobile & industrial incident cases in which someone changed parts in machinery and people were injured – well developed are of law…likely not having to do with guns, self-defense or other tactical things, but highly relevant to the issue of modified items being used in place of OEM/properly maintained items.

Guess where I’m going to look to mine for caselaw (after another coffee…)

OK.

So, you still want caselaw regarding a modified gun – too fucking bad, you aren’t likely to find much.

You are going to find some decent cases on negligence & equipment like:
“Under statute, failure to have motor vehicle provided with brakes, adequate safely to control its movement or to maintain brakes at all times in good working order is ‘negligence per se’, regardless of whether defect is due to any negligence of owner or operator.” Smith v. Finkel, 130 Conn. 354, 34 A.2d 209 (1943).

I duno know bout you, but that’s pretty controlling on the issue of equipment needing to be in good working order to me…

For Connecticut. That notation at the end is a Connecticut Supreme Court citation. It's only controlling law for my State...

I'm not going to look up shit fo your state because I don't care...

But then again, I’m not really going to convince people online why demanding caselaw is showing their ass, so…eh.

So there you are. Why asking for caselaw is like showing your ass to people in the know.

There is a time and place for caselaw.

That is when you have purchased an attorney’s time for a legal opinion on a particular issue and want to know the state of the law on this matter, when you are trying to make a case to a judge in court or trying to get a government agency to fuck off/do what you want by citing it to the agency in a letter.

Want ask for it on the internet so you can feel superior to people who know of what they fuck they speak when you say, “You can’t show me any caselaw on this issue!” not realizing they could literally present you with a winning argument and you wouldn’t know it if you were beaten to death with it (seriously, have you ever seen how thick some pleadings are? Like one time it was 2 reams of paper because the judge wanted the entire history of the case so I was like, “No problem!” and re-filed EVERYTHING just to be an asshole.) – not playing the game.

Rant off.