As I have been quite busy lately, I failed to notice that my hosting account had expired…then I took so long to pay for it that GoDaddy had removed the data and wanted another sum of money to restore it.
I finally gave in and paid the ransom, but then it took several more calls to their customer service folks before the site was actually restored.
The blog will now go back to its usual blistering publication rate of at least two articles per decade.
Two nights ago I saw the movie Thank You For Your Service – not out of a burning desire to see the movie, but because we’d driven quite a ways to the theater and it was the only movie showing that night with decent seats available.
The movie follows three soldiers upon their return from Iraq in 2007, and it’s based on a book written by David Finkel. I have not read his book, but my understanding is that the movie follows real-life soldiers Finkel knew and wrote about after their deployment.
I have a number of issues with the movie, none of which are related to the title and my previously published feelings regarding that phrase. Instead, I base my issues with the movie on my own experiences in Iraq in 2006 and my readjustment to civilian life following my exit from the military.
In the movie we see these three soldiers after coming home – well, four, technically – dealing with their wives, girlfriends, jobs, stresses, and injuries both physical and mental. We are painted a simple picture.
All vets are broken.
One vet has flashbacks and comes close to suicide. One vet commits suicide after finding that his fiancée has left him (and “cleaned him out”) during deployment. One vet has memory problems resulting from a traumatic brain injury, gets a “job” with a drug/arms dealer, and his violent physical outbursts leads his wife to call the police. The last vet, who plays a small on-screen role in the movie but a large role in the plot, is physically crippled and living in squalor and filth.
Even in the VA waiting room scene, clearly driven by events in the public narrative, we only see more injured and broken veterans.
If the movie only gets one thing right, it is that reconnecting with others one served with overseas can heal old wounds. But the list of what it gets wrong is voluminous, from minor details like soldiers in Iraq in 2007 driving around without eye protection to someone being called a hero because he was awarded two ARCOMs and an AAM (medals that basically mean he showed up and didn’t kick any puppies, at least not that anyone saw). That particular bit caused us to start laughing out loud in the theater.
The big picture items that the movie misses are that not all post-9/11 veterans need in-patient psychological treatment (literally every veteran in this movie is shown as needing long-term in-home care or in-patient psych care) and that we are fully capable of reintegrating with society even when we do seek treatment in all of the various forms in which it is available to us.
We don’t need to be looked at like we’re all at risk of suicide. The oft-quoted statistic that 22 veterans per day commit suicide (this is even mentioned in the movie) leaves out some very important details. If you were to ask the people making all of these videos “raising awareness” about the statistic, I’d be willing to bet they believe the majority of these suicides are committed by young veterans recently returned from war.
A TV host interviewing the director of the movie asked him if there was “still hope for these guys” – as if we’ve all been afflicted by a terminal disease or that the instant our boots touched foreign soil we were without a future.
None of this is to say that we shouldn’t be addressing suicide and helping veterans in need – something that can be done, at least in part, very effectively by veterans helping one another. We might start by addressing the root causes of suicide across all layers of American society. If you as a civilian want to help veterans, you could start by treating us like normal people.
This movie has no discussion of the veterans who go on to school, or work in the trades, who fly your commercial airliners and perform surgery on you and fix your diesel engine, the veterans who start successful small business or the veterans who work as cops. In the context of being ignored by Hollywood, the real forgotten veterans are the vast majority who go on to live happy and successful lives.
Blowing the issue out of proportion and painting every Iraq and Afghanistan vet with the same broad brush leaves the general public with the impression that we’re all dangerous to ourselves and others. These barriers to reintegration don’t help veterans, they hurt them grievously. However well-intentioned the director of Thank You For Your Service might have been, he has, by perpetuating the false “broken veteran” narrative, done veterans a great disservice with this movie.
I apologize for a lack of updates to the blog. I have been working feverishly for Omaha Outdoors writing product descriptions and creating video reviews.
As a result of one of those reviews, we discovered that the Sig P320 would fire when dropped at certain angles on the rear of the slide. At almost exactly the same time, a lawsuit was filed against Sig Sauer by a police officer who was injured when his holstered Sig P320 fell from the rear of his vehicle and discharged a round upon impact with the ground.
News of that lawsuit was spread far and wide in the gun community with some people blaming the officer or saying it was much ado about nothing and some questioning Sig’s contradictory statements on the matter.
I fall firmly in the latter camp, as Sig marketed the P320 as being drop safe without a tabbed trigger safety.
On August 31, Sheperis – the Connecticut police officer – filed an amended complaint. This complaint contains more of the “drop safe” claims from Sig Sauer as well as some very interesting allegations, and some pretty clear logic.
Let’s start with the logic. First, on August 4, 2017, Sig claimed that “there have been zero (0) reported drop-related P320 incidents in the U.S. Commercial market…” As Sheperis’ amended complaint clearly states, his police department purchased the commercial version of the P320 handgun, not the military XM17/M17. Sig was made aware of the injury to Sheperis, which occurred in January of 2017, within days of the incident.
Therefore, Sig was undeniably aware of at least one (1) drop-related P320 incident in the US Commercial Market prior to August 4, 2017.
As a followup to this note, the amended complaint states that Sig never drop tested the P320 which injured Officer Sheperis – that their only testing of the gun was to fire approximately 50 rounds through it and call it good. Despite attempts by the Stamford Police Department to assist Sig in investigating and testing the P320 for drop safety, “…Sig ceased communications with Officer Sheperis and the Stamford Police Department thereafter.”
This is in line with what I observed when I attempted to contact Sig with the results of our drop testing. Rather than proceed in good faith and treat the issue like the serious matter that it was, they chose not to respond before news of the testing broke elsewhere. This crisis was entirely created by, and fueled by, the actions of Sig Sauer.
Sheperis’ amended complaint also alleges that “the P320 failed German drop tests in April 2017, specifically the Ulm Proof House tests.”
If this is false, it will be very easy for Sig to simply produce results or statements from the Ulm Proof House to the contrary. However, given the events of the past month, my money is on Sheperis’ amended complaint being far more accurate than not on this issue.
“The safety standards SIG claims the weapon passed all require a pistol to be dropped on a one-inch thick rubber mat, and land on the same rubber mat after being dropped, a testing criterion which is plainly outdated and absurd given that end users of the weapon do not walk around on rubber mats when carrying the weapon.”
AMENDMENT: The amended complaint adds a fourth count at the end, one of “Intentional infliction of emotional distress.” This is based upon the claim that “…defendant had knowledge of the drop safety defect with the commercial version of the P320 before Officer Sheperis was shot in January 2017.”
As I see it from my layperson’s perspective, Sig can either try to settle this or allow the case to proceed to discovery (there’s no way a motion to dismiss will be successful, at least not in full) and hope the fact that they knew the pistol had problems before 2017 doesn’t come out. I know they knew it had problems. They know they knew. Allowing the case to proceed would be foolish on Sig’s part – then again, so would selling a firearm as drop safe when it wasn’t.
I found it interesting that among the requests for relief made to the court was that Sig would have to “issue a recall notice or other enhanced, unambiguous warning to all purchasers of the P320 stating that the weapon is not drop safe with a chambered round, and can fire without a trigger pull.” This would be a far cry from the “voluntary upgrade” of August 8.
I firmly believe that law abiding individuals have a right to carry concealed firearms for self-defense. The passage of constitutional carry in Arizona, an effort of the Arizona Citizens Defense League, was hailed by many as a step forward in this regard, but I found it objectionable for two reasons. One was practical, in that it, at least for a time, limited the number of states which recognized my Arizona concealed handgun permit, thus actually reducing my ability to legally defend myself. The other was theoretical, in that people without an understanding of laws regarding use of force might carry and potentially use firearms inappropriately, as I found the use of force discussions to be the most valuable portion of my CCW permit class.
Arizona was already a shall issue permit state, so the constitutional carry provision simply eliminated this short educational period and the laughably brief range qualification. It was hailed by many as a step forward for freedom because one no longer had to “seek written permission from the government” to carry, but as I said before, the efforts of the AZCDL actually limited my ability to legally carry a firearm in neighboring states. Some would put forth the notion that the solution to this problem should be that all states adopt constitutional carry, which will never happen, at least not in my lifetime.
As Arizona still has now-optional concealed weapons permits, you might think the training provisions would remain so that other states would not rescind reciprocity agreements; no, AZCDL saw fit to reduce training requirements for permits as well, even touting this as an accomplishment, thus prompting states like Nevada to end Arizona concealed weapons permit reciprocity (Nevada has since chosen to recognize Arizona permits once again, but for quite some time this was not the case). Many of the other things AZCDL has done have been extremely beneficial to Arizonans and others traveling through this great state. In my opinion, this was not one of them.
Shooting Death of Martin Padilla
My theoretical concerns were borne out a week ago when a 26 year old man – who due to his age could not have received a concealed carry permit prior to the constitutional carry law being enacted, and thus is unlikely to have ever attended the longer, once-required 16 hour class which discussed in detail legal issues regarding the use of lethal force – shot and killed a 40 year old man in front of his four children after a road rage incident and subsequent physical altercation, both of which were apparently prompted by the 26 year old man.
Here’s the interim complaint:
According to the above complaint and an interview with Hamza Padilla, the facts are as follows. As I may have transcribed things incorrectly, I encourage you to read and/or watch the primary sources above.
Marcus Dixon, 26, honked at a vehicle after it failed to go through a green arrow or at least move fast enough when a red turn arrow went green. This vehicle was driven by the 15-year-old son, Hamza, of 40-year-old Martin Padilla, who occupied the front passenger seat, while his three younger siblings sat in the backseat. Hamza stated that Marcus Dickson had been tailgating him.
After moving through the intersection at a pace apparently unacceptable to Marcus Dickson, Hamza pulled into a Walmart parking lot and attempted to move out of the way so the other vehicle could pass. Instead, Marcus Dickson pulled in front of the vehicle so as to block it in, at which point both adults emerged from their vehicles and a physical altercation apparently started by Marcus Dickson ensued. As Martin Padilla was 6 ft 5 in tall and 300 pounds and Marcus Dickson is 5 feet 11 inches tall and 215 pounds, along with the fact that Marcus Dickson’s ground game apparently sucks, Padilla ended up on top and may have struck Dickson a number of times, although his injuries described in the complaint are relatively minor and not particularly visible in his booking photo.
Edit: Well, this is embarrassing. I mixed up the sizes of the individuals involved. Somehow, despite being taller and weighing almost 100lbs more, Dickson ended up at the losing end of the physical fight. I reiterate my comment that Dickson’s ground game sucked – with extra emphasis this time.
Dickson stated that he drew his firearm with his right hand and shot Padilla in the torso once, was able to get out from under him as Padilla made a strange sound, then shot him again in order to keep him from standing up, which Padilla was apparently making no attempt to do.
Dickson has been charged with manslaughter. I fully expect and hope that he will face a fair trial. While the facts of the case may be different than those stated in the interim, in which case I would be open to changing my opinion and interpretation of the situation, for now I will take the facts of the complaint at face value.
This does not look good for Marcus Dickson. He was apparently the aggressor in a situation in which the victim’s vehicle, possibly at the direction of the victim, attempted to deescalate before trapping the victim and emerging from his vehicle to challenge a man with his four minor children, a man who quite understandably sought to defend his children, especially the 15 year old driver of the vehicle who apparently raised Dickson’s ire. Dickson then apparently chose to engage in a physical altercation. When the fight started to go bad for him, he used lethal force twice, at least one example of which was not justified by the victim’s actions as described in the complaint.
Viewed within the context of the road rage incident and the initiation of the physical altercation as well as the second, apparently totally unnecessary shot, however – as I said, this does not look good for Marcus Dickson.
Curiously, this exact type of situation was discussed when I went to my concealed weapon permit class about 10 years ago. The question was posed by a student as to whether or not one could draw and fire a gun at someone in a fight one was losing. As I recall, the instructor said you could absolutely do so if you feared for your life as a result of the size or number of the people you were fighting, but that the authorities would likely take a very dim view if you were the one who initiated the fight.
Certainly, Marcus Dickson could have, and indeed may have, sought this information on his own instead of being forced to attend a class which discussed the use of force. I understand that the idea of the government forcing one to learn about the laws and moral issues surrounding the use of lethal force, even from a private instructor, is anathema to some. Furthermore, if the facts as alleged in the complaint are true, it may be the case that Dickson was a hothead who would not have benefited from any input regarding how to use a concealed weapon, instead choosing to follow his own moral compass. It could also be possible that Martin Padilla was in fact the aggressor, or maybe some would say Padilla should not have gotten out of his vehicle, even if he felt a strong desire to put himself between his children and someone who was allegedly attempting to trap them in a confined area. It should be noted that Padilla was an Army veteran who served in Iraq as an interpreter.
I can’t help but wonder if Martin Padilla would be alive today if Marcus Dickson had been sitting in a class taught by the same instructor who told me that you would be on thin legal ice if you used lethal force in a fistfight you started.
As a side note, I had been in that parking lot – turning left at that same green arrow – just a few hours before the shooting, in a vehicle with a friend who is under the age of 18. Had Mr. Dickson been following me, I too would have attempted to deescalate and drive away or pull aside to allow him to pass. The fact that I had firearms in the vehicle at the time would have been a reminder that I had no need to prove my superiority as a result of a misunderstanding in traffic. Speaking in general terms, carrying a firearm has encouraged me to avoid confrontations whenever possible. It saddens me that a man is dead and four children are without a father after the same choices were not made in real life.
As with my previous articles discussing what’s missing from the latest Fireclean lawsuit, this one draws entirely upon Fireclean’s motions and other court filings in their lawsuit against George Fennell, as well as their lawsuits against me.
In other words, don’t take my word for it – take theirs. Please download the linked documents and draw your own conclusions based on Fireclean’s statements. At the end of this article, I will leave you with a few questions.
As voluminous as the latest Fireclean lawsuit is at 50 pages of complaint and 200 pages of exhibits, what’s most notable is not what is in the suit, but what is not in the suit. Put more precisely, what is no longer in the suit is what really caught my attention.
On March 17, 2016, Fireclean filed a lawsuit against me. On page 6 of that lawsuit was the line “The product itself is specially formulated so that it will not “gum,” or leave behind a solid residue from its use.” Elsewhere on this page, continuing to page 7, was the line “Fireclean contains at least one high-oleic oil…which is preferred…due to the non-gumming nature of high-oleic oils.”On page 14 of this lawsuit was the line “Simply put, the statement or inference that the normal and proper use of Fireclean will lead to corrosion or the formation of solid residues on firearms or weapons is false.”
On September 11, 2016, Fireclean filed another lawsuit against me. On page 31 of this complaint was the line “A non-drying oil such as Fireclean will not gum or form solid residue when exposed to air.” On page 11 of this complaint was the line “Fireclean contains at least one high-oleic oil…which is preferred…due to the non-gumming nature of high-oleic oils.”
On February 8, 2017, Fireclean amended their September complaint. While they added claims of aiding and abetting George Fennell’s tortious conduct, they also removed several lines from the complaint. All of the above lines were removed from the First Amended Complaint.
Fireclean has intentionally removed the words and phrases “gum” and “solid residue” from the defenses of their product in the lawsuit against me in Arizona. They have abandoned their claims that Fireclean, when used properly, will not gum up or form solid residues, and they have admitted that they were informed by the FBI of “tackiness” issues with their product in 2013.
Fireclean has filed a motion to strike (http://www.vuurwapenblog.com/wp-content/uploads/2017/06/34-Motion-to-Strike.pdf) portions of my Reply in Support of the Motion to Dismiss (http://www.vuurwapenblog.com/wp-content/uploads/2017/06/33-Reply-ISO-MTD.pdf) their latest lawsuit against me. Their motion is based on the claim that the Reply introduced concepts which were not introduced in the Motion to Dismiss, which they contend is unfair. To be clear, not introducing things in a motion and then introducing them in a reply is not okay under the Federal Rules of Civil Procedure, so if they had a solid basis for this motion then there would be a good chance it could be successful.
Now, I am not a lawyer, and what follows is not a legal argument but simply my interpretation of the issues at hand and the ridiculousness of their argument based on the information they have presented.
However, they do not have a solid basis for this motion. Most importantly, these issues were raised in the Motion to Dismiss. Which issues, you ask? The issues they claim were not properly raised are closely related: that their speech was a matter of public opinion and, as a result, that I was acting as a consumer advocate. In claiming this, they appear to have missed the following quotes from the Motion to Dismiss, the latter of which was in fact the concluding paragraph of the whole shebang:
“FireClean’s Complaint repeatedly (but summarily) alleges that Mr. Tuohy published all of the 21 different challenged statements with “actual malice”. In doing so, FireClean appears to correctly concede the statements at issue involve matters of public interest or concern. As such, to state a valid claim, FireClean must plead facts sufficient to establish actual malice; “If a defamation action involves a matter of public concern, a plaintiff must establish the presence of actual malice.””
“What FireClean may not do is unlawfully abuse the legal system in an effort to suppress and conceal honest, legitimate expressions of opinion; “[The Lanham Act] has never been applied to stifle criticism of the goods or services of another by one, such as a consumer advocate, who is not engaged in marketing or promoting a competitive product or service.” Goodman, 2014 WL 1310310, *5. The conclusion is precisely applicable here.”
Fireclean cites a case which they seem to imply supports their argument, selectively quoting snippets of sentences to seemingly imply that the issue needs to be raised in such a manner as to be considered “fully explored” in order to be allowed in a reply brief. Here’s their argument, which you should read in its entirety by following the link at the beginning of the article:
However, if we look at the complete sentences nearby in the case they cite (Eberle v. City of Anaheim) , we see that this case is not only inapplicable in the way Fireclean implies, but it actually supports including the arguments they wish to toss out (emphasis mine, and I’ve removed case citations for simplicity’s sake):
“Kiser did not raise the argument in his opening brief. Indeed, in his opening brief he neither mentions the pretrial order nor the district court’s denial of his motion to amend it. The first time the argument pops up is in Kiser’s reply brief… We could consider the issue had appellees raised it in their brief… But appellees merely noted that Kiser had failed to raise the issue. Such an observation does not constitute raising the issue. We could also “consider the issue [if] the appellee has not been misled and the issue has been fully explored.” This, however, is not the case. The issue has not been fully explored.”
The case they cite does not require an issue to be fully explored and indeed it clearly states that an issue can be considered if raised in the brief. The “observation” they refer to in the other case was an admission that the issue had in fact not been raised in that case. The concepts of consumer advocates and whether or not their speech was a matter of public opinion were indisputably “raised” in the Motion to Dismiss. Therefore, this motion to strike is another ill-advised and extraneous attempt to distract from their complete lack of a case, much like their earlier motion to prevent me from filing seven extra pages in response to their phone-book-sized lawsuit, which failed.
My reply in support of the motion to dismiss was just filed yesterday and it’s a fairly quick (and excellent, in my opinion) read compared to some other documents in this case, if you have the time and inclination to peruse such things.
An excerpt from my attorney, David Gingras’, excellent writing:
“Rather than accepting FireClean’s allegation as true, this Court can and should review Mr. Tuohy’s actual statements set forth in the exhibits to the Complaint (cleaner copies were also attached to Mr. Tuohy motion). Upon review, the Court will quickly discover a disturbing fact – FireClean’s table of false assertions is flatly contradicted by the actual text of Mr. Tuohy’s article. In short, Mr. Tuohy either did not say what FireClean claims, or FireClean has grossly misrepresented the context of each statement. This Court need not accept FireClean’s allegations which contradict these exhibits.”
In the original version of their Arizona lawsuit, they included the line “After the comparison, David Sugg and Edward Sugg observe and comment on the testing.”
In their amended complaint, however, they added something to this sentence in addition to changing “David Sugg and Edward Sugg” to “The Sugg Brothers” – it now reads “…and Vickers concludes there was ‘not much difference’ between the dry gun, CLP, and Fireclean.”
With the Vickers video having been taken down by the LAV himself, a mistake appears to have been made in describing the video in its absence.
Fortunately, a copy of the video was preserved and re-uploaded to YouTube by a third party the very same day I wrote my article about the video. It is now cited in my Motion to Dismiss, and you can watch it here.
In the video, Vickers makes the following statement before testing:
4:55“Fireclean will be properly applied by the Fireclean brothers, and then we’ll see what kind of fouling we get coming out the ejection port and the muzzle. Hopefully, we think you’ll be able to see this on high speed camera and you’ll be able to see the amount of fouling that’s jettisoned out of the gun and therefore keeps the gun cleaner.”
During testing, he says:
9:00“My gut is, not a lot more than the CLP, but a bit more.”
9:15“Last up, Bravo Company carbine with Fireclean applied. Going to check out the ejection port and the muzzle and I think we’re going to see some extra debris blowing downrange.”
After testing, Vickers says:
9:47“Dramatic. That was much more noticeable. A lot more vented out. Compare that to the dry”
10:25“With CLP or certainly Fireclean, there is more debris coming out of the gun… From what I saw, to summarize, more debris comes out of the gun with Fireclean in a handgun, but dramatically more with a carbine. That’s what I saw, and I think it’s 100% due to the pressures involved.”
At no time does Vickers say that there was “‘not much difference’ between the dry gun, CLP, and Fireclean” as claimed in in their First Amended Complaint.
On page 13 of their response to my motion to dismiss, Fireclean claims they can “provide evidence, such as the results of scientifically sound lab tests, eyewitness testimony, and expert testimony, to prove the FAC’s allegations that they did not falsify any video test results or mislead the public” – but if you follow the reference they make to the original document, it’s just the IR testing comparing Fireclean to various types of Crisco – it doesn’t have anything to do with the video. None of their 200 pages of exhibits contains a reproduction or re-verification of the Fireclean Lube Test video.
As they have often mentioned, Fireclean has applied for a patent (see exhibit A of this lawsuit for the complete application) regarding two topics: an oil composition and a method for cleaning firearms. Several years ago, they described their product in various ways as containing “at least” 25% vegetable oil by volume.
Their patent was rejected in June of 2016 and again in October of 2016, for being both too close to prior art and not being specific enough about the formula.
In April of 2017, they filed a last-ditch appeal which abandoned most of their previous claims, including all composition claims:
Instead they focused on the method portion of the patent claims, which included this line:
So Fireclean is now applying for a patent which describes a method for cleaning firearms requiring an oil composition that is a) “about 100% vegetable oil” and b) does not contain a compound which is not a vegetable oil, otherwise it would continue to conflict with the mentioned Legros patent.
Fireclean has not attached this latest 2017 patent appeal to their lawsuit against me in Arizona, or any of their previous appeals which further clarified the composition of Fireclean. Instead they present the court with, and rely upon the wording of, the original patent application from 2013, which describes “at least” 25% vegetable oil.
Just a few days ago, there was a USPTO Office Action which tentatively identified some allowable subject matter in their patent application – claims 16 and 18. Claims 16 and 18 relate to the method of treating the metal with Fireclean, either by “drying the deposited oil composition by heating at a temperature of about 100 to 400 degrees fahrenheit” (Claim 16) or “immers(ing) at a temperature of about 100 to 400 degrees fahrenheit for a period between about 10 minutes to 24 hours.” These actions require an “about 100%” vegetable oil composition.
Dropping all prior pretenses of it being “above 25% vegetable oil,” Fireclean’s latest patent application describes the product only as “about 100% vegetable oil,” – yet they continue to claim the sentence “Fireclean is probably a modern unsaturated vegetable oil virtually the same as many oils used for cooking” is something worth suing over.