Defending yourself with anything more than 9mm: Go to jail

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Corpral_Agarn

Corpral_Agarn

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Yesterday I am waiting for my private lesson to arrive and I am helping a customer interested in buying a gun.

He pops out with "I stick to 380 and 9mm because anything bigger, if you end up using it, will land you in jail."

I respond: ?????? "sorry, what? how do you figure that?"

"Well in court, they are going to want to know why you used such a powerful gun. Overkill."

"Interesting idea, but I doubt that's true as a rule. If a shooting is ruled justified, it probably doesn't matter."

"I'm telling you, I know what I'm talking about."

"Okay. Do you have any examples or cases where this where the caliber was used to overturn a justified shooting?"

"I'm telling you..."

Eventually, he shortened up his absolute to "you will have to answer more questions". I didn't know what to do with that, so I excused myself and passed him off to a retail staff member.

Where does this nonsense get started?

And does anyone know of a case where the caliber of the handgun was called into question as evidence of "overkill"?

Is "overkill" even a legal argument?
 
yes, overkill can certainly be a prosecutable factor, though i don't this is what you meant
look up Byron David Smith
 
Corpral_Agarn said:
Yesterday I am waiting for my private lesson to arrive and I am helping a customer interested in buying a gun.

He pops out with "I stick to 380 and 9mm because anything bigger, if you end up using it, will land you in jail."

I respond: ?????? "sorry, what? how do you figure that?"

"Well in court, they are going to want to know why you used such a powerful gun. Overkill."

"Interesting idea, but I doubt that's true as a rule. If a shooting is ruled justified, it probably doesn't matter."

"I'm telling you, I know what I'm talking about."

"Okay. Do you have any examples or cases where this where the caliber was used to overturn a justified shooting?"

"I'm telling you..."

Eventually, he shortened up his absolute to "you will have to answer more questions". I didn't know what to do with that, so I excused myself and passed him off to a retail staff member.

Where does this nonsense get started?

And does anyone know of a case where the caliber of the handgun was called into question as evidence of "overkill"?

Is "overkill" even a legal argument?
Click to expand...

It sounds like the customer may have been referring to the Harold Fish case.
 
Caliber wise I don’t know. But I’ve long had the understanding that it’s wise to use only commercial Ammo in ones carry piece, so I practice with hand loads loaded to commercial velocities but load only commercial rounds in the carry gun.
Dumb, maybe, but as a lay person why take the risk.
And if 10MM was an issue perhaps we should leave the 45 behind.
 
Corpral_Agarn said:
Interesting case.

For those interested:
https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=4266

I only saw mentioned that the pistol was a 10mm not that 10mm was excessive or anything.

Maybe I missed it?
Click to expand...

The prosecutor made a point about Fish carrying a 10mm Kimber and tried to sort of spin it into him being a bloodthirsty maniac who wanted to really hurt people. The reality was that Fish was solo hiking in the Kaibab National Forest and there's wolves and bears up there, so the 10mm wasn't an unreasonable choice. That being said; that case was very much about anti-2A politics.
 
I have heard that you need to stay away from ammo with names like RIP or xtreme. A good lawyer will try to turn someone protecting themself into something premeditated.
Also carrying a high capacity pistol with multiple reloads is not recommended.

Simple cartridges is a safer way to carry 380, 9mm, or 38 special.
If you are in the Alaska wilderness 44 magnum or 10mm is fine.
 
Corpral_Agarn said:
Where does this nonsense get started?
Click to expand...
No one knows.
Corpral_Agarn said:
And does anyone know of a case where the caliber of the handgun was called into question as evidence of "overkill"?
Click to expand...
As mentioned, the use of a 10mm in the Harold Fish case was used by the prosecutor.

Of course, a prosecutor is entitled to mention anything at trial.

In the Fish case, one juror said that the use of a 10mm gun had bothered her.

Corpral_Agarn said:
Is "overkill" even a legal argument?
Click to expand...
Deadly force is deadly force--period. The only question is whether it was reasonably thought to have been immediately necessary to use it.

Of course once deadly force is no longer necessary, continued use of deadly force is unlawful.

whughett said:
But I’ve long had the understanding that it’s wise to use only commercial Ammo in ones carry piece, so
Click to expand...
That really has to do with make sure that gunshot residue test data would not be ruled inadmissible, which would only be important should the defender need to bring it into court.

Sistema1927 said:
If it's a good shoot, then what you use shouldn't matter.
Click to expand...
It isn't a "good shoot" until the prosecution fails to prove beyond a reasonable doubt that it was not, and/or a plaintiff so proves with a preponderance of the evidence.

The triers of fact will make that determination on the basis of the totality of the evidence admitted.

Their impressions of the type of firearm used may well color their judment.
 
Kleanbore said:
No one knows.
As mentioned, the use of a 10mm in the Harold Fish case was used by the prosecutor.

Of course, a prosecutor is entitled to mention anything at trial.

In the Fish case, one juror said that the use of a 10mm gun had bothered her.

Deadly force is deadly force--period. The only question is whether it was reasonably thought to have been immediately necessary to use it.

Of course once deadly force is no longer necessary, continued use of deadly force is unlawful.

That really has to do with make sure that gunshot residue test data would not be ruled inadmissible, which would only be important should the defender need to bring it into court.

It isn't a "good shoot" until the prosecution fails to prove beyond a reasonable doubt that it was not, and/or a plaintiff so proves with a preponderance of the evidence.

The triers of fact will make that determination on the basis of the totality of the evidence admitted.

Their impressions of the type of firearm used may well color their judment.
Click to expand...

I was hoping you'd chime in here. Thanks for doing so.

The bolded has always been my understanding.
 
Corpral_Agarn said:
Interesting case.

For those interested:
https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=4266

I only saw mentioned that the pistol was a 10mm not that 10mm was excessive or anything.

Maybe I missed it?
Click to expand...


I think the court doc or link may have been posted in Legal at some point. It's come up in Legal a few times.

I was living full time in AZ back then and tried to follow it.

After I read the court docs, myself, I came away with the impression that the 10mm issue was a bigger deal than it should have been. As noted above, at least 1 juror was on record saying to the effect of too much gun.
 
The Fish case is the only case I know of that made the news regarding caliber but as others have said, the prosecutor can try to go after anything. That includes bumper stickers on your car or T shirts that one wears to make a statement. They they to discredit your character as much as they can or prove malicious intent through ammo/gun choice. Plain Jame everything is best as it won’t stick out in their minds. When it comes to ammo, use what your local LEO’s use.
 
Don't have the reference but there was recently a case where the guy loaded up with hollow points and the DA claimed it indicated premeditation as he wanted a more powerful round. If I find it, I'll post it.
 
One other thing: regarding the type of gun, Glenn Meyer has conducted some studies based on well-designed jury simulation experiments.

Look for "Will it hurt me in Court".
 
Thanks, the basic point is that research indicates juries like a coherent story line. Appearance issues can add to a story that you were not righteous in your interaction. It's been documented on many dimensions. When it comes to a gun/ammo choice, this principle offends some gun folks as they think it is an attack on the 2nd Amendment or their personal sense of being a warrior or whatever.

We've been over this before. As far as the issue of 9mm or greater, if you carry something that is a touch of the normal paradigm (like I saw an article touting a snubby 44 mag for firepower), the DA may tell the first story of how you were premeditated, blood lusted, whatever to kill!! That led to you not having proper judgment in the incident. This acts when the 'good' shoot is ambiguous - and that's why you are in court. It isn't a 'good' shoot. Your lawyer will have to tell a story of why your actions and equipment made some coherent sense. I don't think a 40 SW, 357 Sig or 44 ACP would be a problem as they are pretty standard rounds and that would be stressed.

Walking around with an OC 454 Casull and in an ambiguous shoot, might be a problem.

I wouldn't be afraid to carry my 1911, contrary to the proposition in the OP.
 
People believe in many things, often without any substantiation other than that they believe it.
In our 'modern' society it's all to easy to re-enforce low-information beliefs through the "echo chamber" or "confirmation bias" effect(s).

Sometimes, you just have to let go, and let them believe what they are going to believe.
 
Corpral_Agarn said:
....Where does this nonsense get started?....
Click to expand...

You mean nonsense like, "...If a shooting is ruled justified, it probably doesn't matter."

That's merely a variation on the meaningless cliche: "A good shoot is a good shoot/"

It's a meaningless cliche because you don't have the final say on whether it's a good shoot.

Whether your intentional act of violence against another human was justified so as to excuse you from criminal liability will be decided by the police, and the prosecutor, and perhaps a grand jury, and if you're really unlucky the jury at your trial. And anything about the incident, including the tools you used, could influence that decision. It's not a "good shoot" until those folks who get to decide the question say so.

And pretty much anything can be put into play, and might influence how the police, the prosecutor, a grand jury, or a jury at your trial evaluates the evidence. In the case of Harold Fish, in a post verdict interview a juror did state that the jury was very troubled by Fish's use of JHP ammunition. And that illustrates that in a gun friendly State, ammunition used in a claimed self defense shooting can have an impact on how a jury evaluates the evidence.

But that doesn't automatically mean that I need to choose a "mouse gun" or FMJ ammunition or something else that might compromise my ability to effectively defend myself against a violent attack.

I can assess the risks compared with the utility of certain conduct. That's call risk management. The point is to lay as strong a foundation for my defense as possible, while preserving my ability to accomplish my purpose. There are things that could help me in the street, but could also be used against me. Because they can improve my chances for survival in the street, I need to plan ways of dealing with possible aftermath risks.

Kleanbore said:
...regarding the type of gun, Glenn Meyer has conducted some studies based on well-designed jury simulation experiments.

Look for "Will it hurt me in Court".
Click to expand...

Here's that article by Dr. Meyer (GEM here).
 
GEM said:
Don't have the reference but there was recently a case where the guy loaded up with hollow points and the DA claimed it indicated premeditation as he wanted a more powerful round. If I find it, I'll post it.
Click to expand...
That's pretty stupid, the idea of a hollow point is not to hurt innocent people on the other side of the BG.
 
GEM said:
Thanks, the basic point is that research indicates juries like a coherent story line. Appearance issues can add to a story that you were not righteous in your interaction. It's been documented on many dimensions. When it comes to a gun/ammo choice, this principle offends some gun folks as they think it is an attack on the 2nd Amendment or their personal sense of being a warrior or whatever.

We've been over this before. As far as the issue of 9mm or greater, if you carry something that is a touch of the normal paradigm (like I saw an article touting a snubby 44 mag for firepower), the DA may tell the first story of how you were premeditated, blood lusted, whatever to kill!! That led to you not having proper judgment in the incident. This acts when the 'good' shoot is ambiguous - and that's why you are in court. It isn't a 'good' shoot. Your lawyer will have to tell a story of why your actions and equipment made some coherent sense. I don't think a 40 SW, 357 Sig or 44 ACP would be a problem as they are pretty standard rounds and that would be stressed.

Walking around with an OC 454 Casull and in an ambiguous shoot, might be a problem.

I wouldn't be afraid to carry my 1911, contrary to the proposition in the OP.
Click to expand...

Yep. Been wondering if caliber wouldn't have been an issue in the Fish case, IF he'd been carrying an M1911 in .45ACP. You know most of the jurors would have seen John Wayne waving one around in a WWII movie at some point.
 
Frank Ettin said:
You mean nonsense like, "...If a shooting is ruled justified, it probably doesn't matter."
Click to expand...
No.
I mean like was posted in the OP.

I have a hard time putting the two statements on the same level, and I'm surprised that you made that jump (one being a certainty, the other using words like "probably"). But that's okay. You do you.

Frank Ettin said:
That's merely a variation on the meaningless cliche: "A good shoot is a good shoot/"
Click to expand...
Not sure what you are going for here, but you are the first one to use this phrase in the thread.

Frank Ettin said:
It's a meaningless cliche because you don't have the final say on whether it's a good shoot.
Click to expand...
I agree. and that's the reason i'm not concerned about the round.

My job is to defend myself when absolutely necessary and survive. Just about anything can happen afterwards.

Frank Ettin said:
Whether your intentional act of violence against another human was justified so as to excuse you from criminal liability will be decided by the police, and the prosecutor, and perhaps a grand jury, and if you're really unlucky the jury at your trial. And anything about the incident, including the tools you used, could influence that decision. It's not a "good shoot" until those folks who get to decide the question say so.

And pretty much anything can be put into play, and might influence how the police, the prosecutor, a grand jury, or a jury at your trial evaluates the evidence. In the case of Harold Fish, in a post verdict interview a juror did state that the jury was very troubled by Fish's use of JHP ammunition. And that illustrates that in a gun friendly State, ammunition used in a claimed self defense shooting can have an impact on how a jury evaluates the evidence.

But that doesn't automatically mean that I need to choose a "mouse gun" or FMJ ammunition or something else that might compromise my ability to effectively defend myself against a violent attack.

I can assess the risks compared with the utility of certain conduct. That's call risk management. The point is to lay as strong a foundation for my defense as possible, while preserving my ability to accomplish my purpose. There are things that could help me in the street, but could also be used against me. Because they can improve my chances for survival in the street, I need to plan ways of dealing with possible aftermath risks.



Here's that article by Dr. Meyer (GEM here).
Click to expand...

I am not sure you understood the OP, which had to do with certain jail time because of a caliber choice, but I appreciate the insight.

I'm with Kleanbore on this one.
 
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