How close to criminal negligence are we

[Lohman446]

So the DA is going to charge someone criminally nelgent because a player bought a gun that didnt adhere to a private standard? Remeber that ASTM is something that is not sactioned by the state, and is a private standard.

I think this is the basis of where we differ on coming to our conclusions. I do not think it a given that someone will go to jail, or a given that we are criminally negligent, but I think it a very real possibility. I think that not adhering to industry accepted safety standards (ASTM) - remember it was the industry that voted to let the ASTM set safety standards - without having strong scientific evidence to support that non compliance does rise to the level of criminal negligence.

If you are boxing and you decide to violate accepted standards and "weight" your gloves, then a company manufactures "cheater" gloves, even if there use is common place and then someone is killed through the use of them - are you not negligent?

I think that one of the problems we, as players, have in considering this is we look at it through the eyes of players, even as tournament players. I think if you look at it from the eyes of your prospective prosecutor and jury there is a harder time justifying it. Your going to have to justify why the "legally" attained 12BPS was not enough and why you violated indsutry accepted standards to get 15BPS. I beleive that violating ASTM standards, in the absence of other scientific testing, does bring up the real possibility of criminal charges. Maybe you will get an overloaded DA that will gladly plea you out for a fine and probabtion - I think that is a strong possibility IF criminal charges are found suited to the situation.

I understand your argument that the ASTM is not a public governing body. However, I do not think that the governing bodies are the only thing that can set industry standards. I beleive that a marker outside of ASTM standards does represent the clear and obvious danger that the user should have been aware of. This is outside of other scientific studies to protect the argument that the danger was not clear. It comes down, I think to how clear a jury / DA is going to find disregard of ASTM standards to be.

Negligence does not require violation of a standing statute, it involves not taking reasonably precautions, ignoring known safety issues, and in general a simple disregard for others safety

However, we as players already know that markers can do damage - you have been bruised by them. A reasonable person sees it as pretty obvious that there are vulnerable areas left open by our playing gear (I think). I don't think it hard to argue that a reasonable person would understand that violation of ASTM standards brings about "substantial and unjustifiable risk".

I would like to see scientific studies, embraced the industry that said this (XXX BPS, XXXFPS) is unsafe because of this scientific testing. In absence of this we only have the ASTM taking its, in my opinion, relativly conservative stance stating what is safe. I beleive, a regulatory body of manufacturers in paintball with realistic governing powers and the ability to set protocol, could give us a leg to stand on, a strong leg in criminal court. However, with the apathy that exists today among manufacturers I don't see it coming anytime soon, so I think it leaves us as players wtih nothing more than ASTM guidelines to go by. Guidelines we are ignoring.

I am not for a moment trying to point that there is no validity to your line of reasoning. I see there is a logical line of reasoning that arrives to your conclusions. But I am trying to point out that the line of reasoning I have chosen to outline here has lagical and compelling reasoning behind it, I think, and may be just as valid as your own. What I am trying to point out, is while many companies and players have taken into consideration there own personaly safety considerations while playing, as well as the civil liability issues involved, very few have taken into consideration the criminal liability risks. I am trying to point out that these may very well exist.

Thankfully we do not have a paintball test case at this point and time. It is my hope that this does not change, perhaps there really is no serious danger in ramping or some other lines that the ASTM calls for. I would like to see that supported by scientific data and reasoning rather than the simple perhaps.

[Beemer]

note my last posts edited for punctuation

I think that not adhering to industry accepted safety standards (ASTM) - remember it was the industry that voted to let the ASTM set safety standards

Key word here is Industry,what was the motive for this in the first place? Politics?? or to get the heat turned down comming from some place else. Or for OUR safety Really? Isnt working to good is it?

Your going to have to justify why the "legally" attained 12BPS was not enough and why you violated indsutry accepted standards to get 15BPS.

A reasonable person sees it as pretty obvious that there are vulnerable areas left open by our playing gear (I think).

Todays players arent reasonable. Is that a generation gap thing? An uniformed, uneducated thing Or simply I.A.D.S.P.B.P [Im a dumb s... paint ball player]

Thankfully we do not have a paintball test case at this point and time. It is my hope that this does not change, perhaps there really is no serious danger in ramping or some other lines that the ASTM calls for. I would like to see that supported by scientific data and reasoning rather than the simple perhaps.

Maybe we do. Need to find out whats going on with those 2 cases I mentioned above to be sure.
Crash test dummy with inbeded sensors shot at might work good.

[Lohman446]

What I meant by "legally" getting 12 - I think most players can legally attain 10-12BPS on an ASTM compliant marker. I think very few can attain and sustain 15BPS. Is it reasonable to disregard ASTM standards to gain 25% - I think you would have a hard time convicining someone that violating ASTM standards to gain 3BPS when it was already very fast was... well reasonable and prudent.

[Lohman446]

Todays players arent reasonable. Is that a generation gap thing? An uniformed, uneducated thing Or simply I.A.D.S.P.B.P [Im a dumb s... paint ball player]
.

True. However, ignorance and group unreasonablness is not grounds for a defense. Remember most statutes depend on a reasonable persons judgement. I don't think your disagreeing with anything I have said, I'm just pointing out to those reading that this is not a defense

[GT]

I think this is the basis of where we differ on coming to our conclusions. I do not think it a given that someone will go to jail, or a given that we are criminally negligent, but I think it a very real possibility. I think that not adhering to industry accepted safety standards (ASTM) - remember it was the industry that voted to let the ASTM set safety standards - without having strong scientific evidence to support that non compliance does rise to the level of criminal negligence.

I think we are closer than you think. Will someone go to jail for a bouncing marker? no, however the civil side will eat people up with fiscal damages.

Next malfunction in this game takes out YOU. Make sure to leave instructions for the wife and or kids

This was funny, but I didnt see a smiliy so I am not sure. I have a better chance of gettting killed in a car acident on the way to the feild, getting hit by lighting, winning the lottery, etc...

I understand the proactive apporoach and I applaud the industry for the steps taken with co2 valves. But like I said, I hope uncle sam has more important things to do than paintball.

Todays players arent reasonable. Is that a generation gap thing? An uniformed, uneducated thing Or simply I.A.D.S.P.B.P [Im a dumb s... paint ball player]

thats your opinion. There are far more people willing to play tourneys with bounce, f/a than there are on AO. So who considers what to be reasonable?

I would like to see scientific studies, embraced the industry that said this (XXX BPS, XXXFPS) is unsafe because of this scientific testing. In absence of this we only have the ASTM taking its, in my opinion, relativly conservative stance stating what is safe.

I would to but this has to start at the industry level.

[Beemer]

This was funny, but I didnt see a smiliy so I am not sure. I have a better chance of gettting killed in a car acident on the way to the feild, getting hit by lighting, winning the lottery, etc...

You STILL dont get it. No smily for a reason. you only see the little picture.
Show me the percentages when youre holding a tank that has just been flashed filled or when 99% of time there is only a BBD between you and a paintball in the stageing areas.
6.6 mil and some change for an eye[no thanks]

I think we are closer than you think. Will someone go to jail for a bouncing marker? no, however the civil side will eat people up with fiscal damages.

You confuse me with your fuzzy logic with this. You agree and you dont which is it?
Let it get sorted out on the civil side. You cant say no with out some proof.
When the crap hits do you agree it will be detrimental to OUR game as a whole.

I have seen this game come a long way since 85 and would like to keep playing for a long time more. Safety is a bigger issue then you might want to admit.

There are far more people willing to play tourneys with bounce, f/a

And this is why. If not the first 2 reasons I gave then it must be I.A.D.S.P.B.P
Auto was banned way back, why?

But like I said, I hope uncle sam has more important things to do than paintball.

Well me to. But we have proven over the past decade plus that we cant wont do it ourselves, so what do you think will, could happen. One more time... Why were lawn darts banned by the CPSC?

You can laugh all you want. What does th C and the S stand for. Do you buy all your stuff at the flee market knowing it aint UL listed????????????

[Lohman446]

I think we are closer than you think. Will someone go to jail for a bouncing marker? no, however the civil side will eat people up with fiscal damages.

Let me agree with you that I beleive civil liability is unquestionable. I don't agree with the definite no on someone going to jail over a bouncing / non complying marker, ESPECIALLY if the non compliance was intentional. Especially if the non compliance was an advertised feature.

[GT]

You can laugh all you want. What does th C and the S stand for. Do you buy all your stuff at the flee market knowing it aint UL listed????????????

I buy UL approved items so my house doesn't burn down while I sleep in my bedroom. I don't see how you can draw any parrelles to a ramping marker and Christmas lights that spontaneously combust.

Show me the percentages when you're holding a tank that has just been flashed filled or when 99% of time there is only a BBD between you and a paint ball in the staging areas.
6.6 mil and some change for an eye[no thanks]

Again, show me the data that is statically significant. Two deaths out of 10's of millions is not significant. 6.6 mill, thats it? How much revenue did the sale of paint generate last year, how about air and green fees alone? This is how the real world works, some people get hurt and damages are paid but as long they monetary damages are fiscally exceptable things will continue , status quo.

You confuse me with your fuzzy logic with this. You agree and you dont which is it?
Let it get sorted out on the civil side. You cant say no with out some proof.
When the crap hits do you agree it will be detrimental to OUR game as a whole.

To clarify,
there is ZERO change of criminal liabilty invovled with a bouncing, ramping marker. Again you would have to point to some LAW and not ASTM. Now, there can be CIVIL Liability attatched to a company, field, person, for using equipement that is found to be unreasoble or out of sync with the industry. Event making some civil arguments is a stretch given the number of compaines that sell products with that software that are out of the ASTM standards. Think of all the paintball "experts" How many would be for f/a how many aganist. Remeber that we arent talking about just tournet ball but also scernieos allow f/a.

Detrimental?
You dont think there have been cases settled out of court already, for sums of money that would keep you from wanting to work ever again?


Since we are still talking about this, why dont you guys find some cases that have gone to court that we can discuss.

[Lohman446]

To clarify,
there is ZERO change of criminal liabilty invovled with a bouncing, ramping marker. .

Zero chance? Then they have changed negligence standards from what I understood them to be. High chance, maybe not. Zero chance... no

Criminal negligence has to be a reckless disregard for safety. Absent of anything else in industry standards, any other governing laws, failure to follow industry accepted standards in regards to safety is negligent.

You do not have to break a standing law to be criminally negligent

"Criminal negligence" is defined in Sec. 6.03(d) thusly:
A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.

Where in there does it say you have to be in violation of a different law to be found criminally negligent? You don't. You have to represent reckless disregard for safety. I would argue that, without other scientific testing to defend your position violating ASTM standards is reckless disregard. Sure civil liability is easier to prove, but criminal negligenc is quite possible.

[Lohman446]

Since we are still talking about this, why dont you guys find some cases that have gone to court that we can discuss.

C. Common Law Contexts in Which the Term "Gross Negligence" Is Used in Michigan.

1. Michigan's Criminal Law

Gross negligence is the standard of culpability for two crimes in Michigan, involuntary manslaughter(59) and felonious-driving.(60) The manslaughter statute provides:

Any person who shall commit the crime of manslaughter shall be guilty of a felony punishable by imprisonment in the state prison, not more than 15 years or by fine of not more than 7,500 dollars, or both, at the discretion of the court.(61)

The definition of the crime of manslaughter in Michigan is a matter which has been left to common law development. The common law makes gross negligence one of the elements of involuntary manslaughter. In People v. Roby,(62) for example, Justice Cooley stated, "I agree that as a rule there can be no crime without criminal intent; but this is not by any means a universal rule. One may be guilty of the high crime of manslaughter when his only fault is gross negligence." More recently, the Michigan Court of Appeals stated that "to convict of involuntary manslaughter, a defendant must have been grossly negligent."(63) Both the first and second editions of the Michigan Criminal Jury Instructions state that an element of involuntary manslaughter is that the defendant committed the act causing death in "a grossly negligent manner."(64)

Gross negligence is manifestly a smaller amount of watchfulness and circumspection than the circumstances require of a prudent man. But it falls short of being such reckless disregard of probable consequences as is equivalent to a wilful and intentional wrong. Ordinary and gross negligence differ in degree of inattention, while both differ in kind from wilful and intentional conduct which is or ought to be known to have a tendency to injure

The following statements by the Supreme Court in LaBarge v. Pere Marquette R. Co.,(103) highlight the split within Michigan between the the Denman/Schindler line of cases and the competing last clear chance line:

Counsel in this and many other cases have apparently assumed that where negligence is extraordinary, to a comparative or superlative degree, it is proper to call it "gross," and that, when it can be so denominated, certain legal consequences result. Accordingly in this case it is said that it was extremely negligent to shunt these [train] cars down the street without a lookout on duty, . . . and justified the charge of "gross" negligence, and hence nothing that the plaintiff had done or might do after the discovery of the approaching train could be effective as a defense to the action. We think this is not the rule. The doctrine of responsibility notwithstanding discovered negligence of the plaintiff, does not apply where the plaintiff's negligence is, in the order of causation, either subsequent to, or concurrent with, that of the defendant.

To convict of involuntary manslaughter, a defendant must have been grossly negligent. Gross negligence requires:

Knowledge of a situation requiring the exercise of ordinary care and diligent to avert injury to another.
Ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand.
The omission to use such care and diligence to avert the threatened danger when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another.(127)

I figured you could hunt down more if you wanted - but there is a legal argument for the position of criminal negligenc

[hitech]

Since we are still talking about this, why dont you guys find some cases that have gone to court that we can discuss.

Where can I search for this?

[PBX Ronin 23]

Here's something that comes from...

Here's spmething that comes from a prominent member of the Paintball community. Phil Dominguez was the former Ultimate Judge for the NPPL and has been arround for a very long time.....enough to see the evolution of the sport and enough to know what can constitute it's unraveling. This was taken from SmackTalk(tm).

Re: PSP RULES COULD KILL PAINTBALL READ THIS!!!

Posted By: Phil Dominguez
Date: Sunday, 20 February 2005, at 12:24 p.m.

In Response To: Re: PSP RULES COULD KILL PAINTBALL (chicken ***** PSP.)

You guys are all talking about the safety of someone wearing goggles in the field of play.
How many times have you seen a marker blow off the barrel sock? what happens when that happens in the staging area when a player that just lost a game throws his marker on the table and it goes off in some mode? who is going to be in front off that marker? your 10 year son, your wife or girl friend who came to see you at the event? Or maybe your team mates?

I spent almost two years tring to enforce safe marker rules and have seen all kinds of things happen, so to those of you that think it will never happen. If you could of controlled it, why did you get caught? things happen.

What about all of those markers that get resold when we get our new this years markers. some kid that bought it takes it home to try it out in his back yard. kids kill kids when they find dads gun under the bed, what happens when he takes one of those markers out? ( i know that one is reaching, but its possible)

We had better skilled compititon before electric markers came out, and guess what. whos still winning, the same teams that won before are still winning. so is it the marker or is it skill.

simple and short, those of you that play inside the net know what risk you are taking, those who come to watch you play dont!

another thing is ( and i know you guys think its funny)the guys who REF you dont like getting hit 15 times either, and you will say there getting paid or if you dont like it dont ref, (something stupid like that) well it is getting harder and harder to find good refs, yet as a player we will complain about the poor reffing.( we just shot the hell out of him and we wonder why he wont go in their and make a call) I know some of you guys do it to move the judge where you want him or where you dont want him and some of the judges are to inexperienced to stay out of the lanes. it happens sometimes and sometimes on purpose.

Phil Dominguez

[rabidchihauhau]

Hey Beemer - its ALWAYS been IADSPBP.

Guys - you can argue law all you want. Law is a very nuanced thing. There's criminal and civil, there's local, state and Federal, there's all the case law that's used as a foundation (and believe me, there are a lot of times when it seems as if the 'logical' answer is incorrect - but that's just because you haven't dug into the case law far enough, or analyzed the situation deeply enough), not to mention that any litigator will tell you that going into a court room is a crapshoot, no matter how strong your case may seem.

Let the lawyers who are skilled in their specialities talk that stuff (believe it or not, a lawyer can be wrong when stepping outside his area of expertise) and let's concentrate on the important things here:

I can't begin to tell you all how boring, frustrating and OLD HAT it is to be hearing yet another generation of paintballers say things like: its money and greed and there's nothing you can do put pull out; there's no answer; any answer is going to cost too much money and no one will support it because it would cost them marketshare, blah, blah, blah.

Let me say this. There is ALWAYS an answer to every problem. ALWAYS. If you haven't found it yet, its because you're thinking too negatively, haven't worked the problem hard enough or aren't being creative enough.

Remember the old saw about 'with a long enough lever, I could move the Earth'?

[GT]

Where can I search for this?

lexus nexus.


Lohman446
Simple Q: what law do you break if your gun is running hot or ramping?

[Lohman446]

lexus nexus.


Lohman446
Simple Q: what law do you break if your gun is running hot or ramping?

What part of you don't have to violate a law to be negligent and as a result guilty of manslaughter do you not get. You violate accepted and known safety standards without any evidence to support the safety of what your doing, as such are guilty, in my opinion, of gross negligence - you have not acted in a prudent manner. Once again, you don't have to commit a crime to be negligent and guilty of manslaughter

"I agree that as a rule there can be no crime without criminal intent; but this is not by any means a universal rule. One may be guilty of the high crime of manslaughter when his only fault is gross negligence."