Interesting article on lethal force

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Trent

Trent

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http://www.nbcnews.com/id/15199221/ns/dateline_nbc-crime_reports/t/trail-evidence/#.Un_p7_msh8F

And the jury had another issue to think about: Fish’s gun.
The firearms investigator said that Fish’s gun — a 10mm — is more powerful than what police officers use and is not typically used for personal protection. And the ammunition Fish used to shoot Kuenzli three times, called “a hollow-point bullet,” is made to expand when it enters the body.
Click to expand...

Type of ammunition / firearm came in to play on this murder trial.

So did training:

Moreover, the defense stressed that Harold Fish was licensed to carry a concealed weapon and had special training that would have made it less likely for him to overreact.

Michael Anthony is a gun expert involved in concealed weapons legislation and training. He told the jury a trained person knows how to evaluate when a threat really justifies using a firearm.

...

The expert testified that in concealed weapons training, people are taught to always shoot at the center of the body—never at a hand, or a foot.
Click to expand...

There's many other points to be made out of the article, but .. read and think for yourself.
 
(By the way, this answers the question "has anyone ever been convicted of murder in a self defense situation, in part or in full, because of the type of firearm or ammunition they used.)

Everyone who carries a firearm for self defense needs to read this story.
 
The Harold Fish case has been mentioned to one degree or another in 25 threads in ST&T so far, including this one (according to a quick search)... it's still interesting that it is capable of drawing media attention almost ten years after the fact.
 
Sorry Fred, didn't realize this was that old until you pointed it out. :)

I stumbled across the case yesterday and as I was reading it, a lot of the things we learned in Personal Protection in the Home really struck me. Kind of a lightbulb moment where the things I heard this February, when I took PPITH, finally sunk in?

"There is not a single thing you can say to a law enforcement officer which can help you at a trial", and so on.

I didn't really start taking any time to learn about lethal force laws until about 2010. For the last two years, especially, I've been actively researching and learning. Now that I'm teaching I'm *really* pushing to learn as much as I can. The responsibility is on my shoulders to make sure students are well taught and well prepared.

I'm trying to get my lesson plan for the lethal force part of my CCW class drafted out, and looking for more real world examples to put in the classroom.

Any other cases out there which you can think of which also teach valuable lessons?
 
 
10 years ago or not, attacking personal defense based on the firearm and ammunition used in the defense is a dangerous road. Most police officers carry 9mm or .40 so anyone who carries something over that is considered more heavily armed than the police? And the use of hollow points, any smart carrier will have some brand of high quality JHP ammunition in their carry weapon of choice. Sounds to me that some anti prosecutor wanted to use misinformation to sway an uninformed jury.
 
Trent said:
I stumbled across the case yesterday and as I was reading it, a lot of the things we learned in Personal Protection in the Home really struck me.
Click to expand...

If you mention the case, don't neglect to point out that not only was his conviction reversed but that the AZ statutes pertaining to lethal force were changed because of it.

http://www.haroldfishdefense.org/
 
The prosecution in the Zimmerman trial also tried to make a big deal about Zimmerman's gun and failed. Smoke, mirrors and trickery is what happens when there really is no case to prosecute someone... like when the state of FL tried to nail GZ with child abuse when murder-2 wasn't starting to look likely (as if it ever did). :what:
Someone told me a very long time ago to:
1. Carry what the cops carry
2. Shoot what the cops shoot

If questions on gun or ammo come up at trial its going to be easier to say you selected your gun and ammo because that's what the cops use... as opposed to anything else.
 
tepin said:
The prosecution in the Zimmerman trial also tried to make a big deal about Zimmerman's gun and failed. Smoke, mirrors and trickery is what happens when there really is no case to prosecute someone... like when the state of FL tried to nail GZ with child abuse when murder-2 wasn't starting to look likely (as if it ever did).
Click to expand...

I remember seeing something to that effect in his case. They tried attacking him for having his firearm "off safety" even though he was using a Kel-Tec (P11?) that is a DAO firearm. I think the only reason why Harold Fish didn't do too well in his defense of firearm and ammunition is the time. 10 years ago, 10mm and JHP rounds weren't as popular in the spotlight and could easily be demonized to an unknowing jury.
 
tepin said:
The prosecution in the Zimmerman trial also tried to make a big deal about Zimmerman's gun and failed. Smoke, mirrors and trickery is what happens when there really is no case to prosecute someone... like when the state of FL tried to nail GZ with child abuse when murder-2 wasn't starting to look likely (as if it ever did). :what:
Someone told me a very long time ago to:
1. Carry what the cops carry
2. Shoot what the cops shoot

If questions on gun or ammo come up at trial its going to be easier to say you selected your gun and ammo because that's what the cops use... as opposed to anything else.
Click to expand...
But don't carry what the military carries, or what the military shoots.

You'll be accused of carrying a "military grade weapon"

Which really means bid cheaper to mass produce.
 
tepin said:
Someone told me a very long time ago to:
1. Carry what the cops carry
2. Shoot what the cops shoot

If questions on gun or ammo come up at trial its going to be easier to say you selected your gun and ammo because that's what the cops use... as opposed to anything else.
Click to expand...

But it could then be argued that you were a vigilante playing cop, whether that is true or not. Any choice of ammunition you make can and will be demonized if the prosecutor is so inclined, and seemingly they often are. It will likely take more of an explanation than using what the local police use, possibly even requiring the testimony of an expert witness in the more extreme cases. These days such a tactic is usually a waste of everybody's time, but some prosecutors will throw anything up to see what sticks (I'm not trying to demonize them as a group, by the way--many are on the side of justice, but we're talking about worst-case scenarios here).

stressed said:
But don't carry what the military carries, or what the military shoots.

You'll be accused of carrying a "military grade weapon"
Click to expand...

And thinking that you're a soldier on the battlefield. Anything can be demonized on an ad hoc basis. Hollow-points are intended to do extraordinary physical harm and cause unnecessary suffering, and should only be used by police (to do extraordinary physical harm and cause unnecessary suffering, I suppose?). FMJ bullets are military-grade and can pass through and kill several people with a single shot, indicating mass-murdering tendencies--that's why police officers use the much safer hollow-point design (why didn't you?). I'm not saying that it will be this bad in every case that actually goes to trial, but it potentially could be, and when cases are in actuality instances of self-defense, prosecutors can get pretty desperate not to lose.
 
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Trent, I second the recommendation for Ayoob's class. Time and treasure well spent. ;)

As Mas Ayoob pointed out years ago, if you can articulate your hardware choices and anticipate what the opposing counsel may say, you should be able to counter their arguments. In Fish's case, I suspect those Court Bailiffs were carrying "10mm Specials" (.40 S&W) loaded with the dreaded hollowpoints. Too bad his lawyer missed that one. :rolleyes:
 
Posted by Manco: I'm not saying that it will be this bad in every case that actually goes to trial, but it potentially could be, and when cases are in actuality instances of self-defense, prosecutors can get pretty desperate not to lose.
Click to expand...
Do you have a basis for that assertion?

How does one divine "when cases are in actuality instances of self-defense"?

Do prosecutors not try to prosecute cases that are not "instances of self defense"?

Do you propose as system in which the attorneys do not pursue their client's cases with every tool that they have available?
 
Again, thanks for posting more links to more information.

I had the opportunity to take a Mas Ayoob class years ago and had to pass it up due to work. I've always regretted that. If he ever makes an appearance in my neck of the woods again (and I know of it), I'll take it. Unfortunately driving 6+ hours is out of the question with my work schedule.

I recently got in a bit of an argument with a man online (not hard to do, that). He posted up a 1911 for sale with "Punisher" grips on a Facebook group I admin. I made the offhand remark, "I wouldn't use that gun in self defense, the Jury would have a field day with you, and you'd likely end up doing time for murder, even if the shoot was justified."

We went back and forth for awhile on this. He grew irate and tried to defend his choices.

Ultimately, all of the decisions we make, the things we learn, the training we take, the research we do - adds up to "the sum of our defense".

Most of the people I know who will carry a firearm in Illinois, once permits are issued, are cautious people. They're not blowhard, braggarts, prone to violent outbursts, etc. They're just normal people who are concerned about protecting themselves, or family.

I've been trying to make a list of important items (from a legal defense perspective), for them to consider. Which is difficult as we have very little case (or no) law in Illinois to work off of, since carrying firearms in public is so very new to everyone - including our courts. All I can do is examine other states, to find a list of best practices, and hope those best practices fall in line with the evolution of lethal force in Illinois.

It's entirely possible our law will rapidly evolve in to something new over the coming years. Illinois shows a past tendency of warping and twisting legislature after it becomes law. There are already bills to modify, restrict, limit, and curtail our concealed carry law which have been filed - and not a single permit has yet been issued!

When I have had a chance to review more information, I will try to build a consolidated best practices list for my (future) class.

(Note, I don't *have* to do this. By statue all I have to do is teach the law, as it is written, without any further advice or interpretation on it. The problem is, while many instructors are already doing just that - the bare minimum - I feel it does a disservice to people who are taking the class to obtain a permit, without preparing them more adequately for all of the repercussions of the use of lethal force.)
 
1. Carry what the cops carry
2. Shoot what the cops shoot
Click to expand...

Right ... So the prosecutor can say you are trying to be cop, and paint you as a psychotic vigilante.

IF you run into an ideologue prosecutor, or one that is trying to look tough on something, then they will find a way to twist your actions no matter what. Its easy.
 
The Harold Fish case was a long time ago.

Back then, in AZ, if you clamed Justified Use of Deadly Force (self defense), the burden of proving the level of force used was necessary and justified, was on the defendant.

That wording of the law is the reason that the gun and type of ammunition was allowed to be brought up and argued.

The Harold Fish case was overturned by the US Supreme Court because the statute put the burden of proof on the defendant, and that is unconstitutional.

Harold Fish was released from jail (after 10 years of imprisonment) and the State Attorney General decided not to re-prosecute. Mostly because Public of sentiment, and that Stand Your Ground Laws had become the law of the land. Also, even before the Supreme Court Ruling, Arizona changed it's laws so that once self defense is claimed, the burden of proving that it was not self defense in on the State.
 
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The "hollowpoint is evil" argument can be easily fought against in the interests of public safety.

"I carry hollowpoint bullets because they stop more rapidly, reducing the risk of over-penetration and mitigating the danger to innocent bystanders."

Ammunition selection for reducing risk is not uncommon - air marshals carry frangible ammunition on aircraft, for that very reason.
 
Trent, I have to hand it to you for going out of your way to better instruct your students, especially since most people getting permits now are pretty new to firearms and there are a lot of myths going around. The guy I got my CHP training from gave decent instruction about our state laws, but mostly just the basic stuff. I don't do anything to any of my SD firearms without having a explanation for why I do it, like why I have night sights, a "high capacity" :banghead: magazine and spare magazine(s) and a BUG, or a knife for that matter.
 
Bhoffman said:
...Back then, in AZ, if you clamed Justified Use of Deadly Force (self defense), the burden of proving the level of force used was necessary and justified, was on the defendant.

That wording of the law is the reason that the gun and type of ammunition was allowed to be brought up and argued.

The Harold Fish case was overturned by the US Supreme Court because the statute put the burden of proof on the defendant, and that is unconstitutional.

Harold Fish was released from jail (after 10 years of imprisonment) and the State Attorney General decided not to re-prosecute. Mostly because Public of sentiment, and that Stand Your Ground Laws had become the law of the land. Also, even before the Supreme Court Ruling, Arizona changed it's laws so that once self defense is claimed, the burden of proving that it was not self defense in on the State.
Click to expand...
Oh my -- so much incorrect information in such a short post. See here for correct information.

  1. The Fish case never went to the U. S. Supreme Court. Harold Fish's conviction was overturned by the Arizona Court of Appeals because of several erroneous rulings on evidentiary matters by the trial judge (State v. Fish, 213 P.3d 258, 222 Ariz. 109 (Ariz. App., 2009)).

  2. So of course no court ever ruled that the Arizona self defense law was unconstitutional.

  3. There is no reason why the gun and ammunition used would not come into evidence in a trial in Arizona, or any other State, in which the defendant claimed self defense. For example, the evidence regarding the gun and ammunition came into the Zimmerman trial in Florida. Florida has a robust castle doctrine/stand-you-ground law.

  4. Fish spent three years in prison before he was released following his successful appeal. (He had been sentenced to 10 years.)

  5. Arizona did change its law as a result of Fish. So let's look at cuurent Arizona law as modified as a result of the Fish case.

    • Under 13-205A, Arizona Revised Statutes (emphasis added):
      ... If evidence of justification pursuant to chapter 4 of this title is presented by the defendant, the state must prove beyond a reasonable doubt that the defendant did not act with justification....
      Click to expand...

    • Thus it is not sufficient that the defendant merely say he was defending himself or another. The defendant retains the burden of presenting evidence that his conduct was justified under the applicable provision of Chapter 4 of Arizona Revised Statutes.

    • For example, under 13-404, ARS:
      ...a person is justified in threatening or using physical force against another when and to the extent a reasonable person would believe that physical force is immediately necessary to protect himself against the other's use or attempted use of unlawful physical force....
      Click to expand...

    • And under ARS 13-405:
      ... A person is justified in threatening or using deadly physical force against another:

      1. If such person would be justified in threatening or using physical force against the other under section 13-404, and

      2. When and to the degree a reasonable person would believe that deadly physical force is immediately necessary to protect himself against the other's use or attempted use of unlawful deadly physical force.....
      Click to expand...

    • Therefore, the defendant claiming justified use of deadly force has the burden of putting on competent evidence that the requirements of 13-404 and 13-405, or one of the other provisions of Chapter 4, have been satisfied. Only then would the burden shift back to the prosecution to disprove the self defense claim.

    • As a practical matter, if you claim self defense you will need to put on a convincing case of justification even if you don't have the burden of proof. You have admitted committing an act of extreme violence on another human being. This is something that most people, probably including most of the jurors, naturally find repugnant. You stand before the jury bearing the mark of Cain. The less convincing your self defense case is, the easier it will be for the prosecution to meet its burden of proof that your use of force was not justified.
 
Trent said:
Again, thanks for posting more links to more information.

I had the opportunity to take a Mas Ayoob class years ago and had to pass it up due to work. I've always regretted that. If he ever makes an appearance in my neck of the woods again (and I know of it), I'll take it. Unfortunately driving 6+ hours is out of the question with my work schedule.

I recently got in a bit of an argument with a man online (not hard to do, that). He posted up a 1911 for sale with "Punisher" grips on a Facebook group I admin. I made the offhand remark, "I wouldn't use that gun in self defense, the Jury would have a field day with you, and you'd likely end up doing time for murder, even if the shoot was justified."

We went back and forth for awhile on this. He grew irate and tried to defend his choices.

Ultimately, all of the decisions we make, the things we learn, the training we take, the research we do - adds up to "the sum of our defense".

Most of the people I know who will carry a firearm in Illinois, once permits are issued, are cautious people. They're not blowhard, braggarts, prone to violent outbursts, etc. They're just normal people who are concerned about protecting themselves, or family.

I've been trying to make a list of important items (from a legal defense perspective), for them to consider. Which is difficult as we have very little case (or no) law in Illinois to work off of, since carrying firearms in public is so very new to everyone - including our courts. All I can do is examine other states, to find a list of best practices, and hope those best practices fall in line with the evolution of lethal force in Illinois.

It's entirely possible our law will rapidly evolve in to something new over the coming years. Illinois shows a past tendency of warping and twisting legislature after it becomes law. There are already bills to modify, restrict, limit, and curtail our concealed carry law which have been filed - and not a single permit has yet been issued!

When I have had a chance to review more information, I will try to build a consolidated best practices list for my (future) class.

(Note, I don't *have* to do this. By statue all I have to do is teach the law, as it is written, without any further advice or interpretation on it. The problem is, while many instructors are already doing just that - the bare minimum - I feel it does a disservice to people who are taking the class to obtain a permit, without preparing them more adequately for all of the repercussions of the use of lethal force.)
Click to expand...
I agree with you on the "Punisher" grips. They would paint him as a vigilante "Punisher" out to get who he thinks is bad.

The same would be akin to an individual who had a Waffen-SS marked luger with Totenkopf (skull and crossbones) SS ruins and eagle and swastika and decided to carry it.

Could you imagine what you would go through if you shot someone with that in defense, and your assailent happened to be African American or Jewish? (Or a white guy they will say has "Jewish ancestors")

Yeah, you're pretty much screwed.
 
Carry/shoot what the cops carry...don't carry/shoot what the cops carry...use birdshot, not buck shot...

And a ton of other catch phrases people like to use.

Hooey.

Deadly force is deadly force. Period. And there are laws governing the use of deadly force.

I submit that people are much better off:

1. Learning what deadly for is and when its use is justified by their local laws.

2. Selecting a firearm and suitable ammunition based on being able to adequately perform the job its to be used for AND that can be handled/carried appropriately.


Bugger all this other stuff. In the end, no matter what you have the prosecuting attorney will vilify it to suit his own point of view. You just be sure you are operating within the scope of the laws in the first place so as to give any prosecutor as difficult a time as possible. THAT is the meat-and-potatoes of any defense.
 
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Posted by RetiredUSNChief: Carry/shoot what the cops carry...don't carry/shoot what the cops carry...use birdshot, not buck shot...

And a ton of other catch phrases people like to use.

Hooey.

Deadly force is deadly force. Period. And there are laws governing the use of deadly force.

I submit that people are much better off:

1. Learning what deadly for is and when it's use is justified by their local laws.

2. Selecting a firearm and suitable ammunition based on being able to adequately perform the job it's to be used for AND that can be handled/carried appropriately.

Bugger all this other stuff. In the end, no matter what you have the prosecuting attorney will vilify it to suit his own point of view. You just be sure you are operating within the scope of the laws in the first place so as to give any prosecutor as difficult a time as possible. THAT is the meat-and-potatoes of any defense.
Click to expand...
That sounds fine in theory, but it overlooks a few key factors.

In the real world, the investigators, the grand jury, if there is one, and the triers of fact, should it come to that in either a civil or criminal venue or both, have to piece together whatever evidence is available after the fact, and some of it may well be contradictory. A jury will have to decide on the basis of the totality of the evidence. The firearm and the ammunition used will be among the evidence.

Carefully conducted scientific jury simulation experiments have shown that the very appearance of a firearm can influence the outcome.

So can signs, posters, training material, clothing, one's personal appearance, bumper stickers, prior public statements and postings, and anything and everything else that can potentially shed light on that all important thing called mens rea, or state of mind. The ammunition used will be entered into evidence, and it will not take any overt "vilification" by the prosecutor for any obvious characteristics to have the potential to influence jurors. An investigator will state that was used, and in the case of the firearm itself, it will be shown to the jury and remain there for the duration.

The advice to carry what the police use comes from expert witnesses who have been called upon to support defendants in trials involving use of force incidents. I don't follow that advice because I don't carry a .40 S&W, but I do carry a commercial 9 mm load that is advertised for personal defense.
 
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