In Prison For Having Too Much Stopping Power

[beaucoup ammo]

Never knew this. Scroll down to "Stopping Power" for story concerning a man in Arizona convicted in 2006 for having too much "stopping power." He was attacked by a mentally deranged homeless man and gets tossed in prison for defending himself.

This may be old news to most..but came to my attention this morning.

http://en.wikipedia.org/wiki/Concealed_carry#Ergonomics_.26_Clothing

 

[LWC]

Don't believe everything on wikipedia.
He was found guilty of 2nd degree murder for shooting an unarmed man (who was probably mentally impaired).
Read the story here: http://www.paysonroundup.com/section/frontpage_lead/story/24609

 

[gspn]

A conviction for using "too much stopping power" in a justifiable self defense case doesn't pass the BS test. First I'd like to hear the definition of "stopping power"...I don't know that there is one. If you're in fear for your life it doesn't matter if you use a .32 or a bazooka...if it's a justifiable shooting I can't see how the caliber would matter.

I looked around a little and none of the stories I found reference a conviction based on what type of gun or ammunition was used.

It appears he was convicted because there was some question as to whether he had exhausted lesser options before he pulled the trigger.

http://www.azcentral.com/specials/special21/articles/0325trailshooter.html


http://www.paysonroundup.com/section/frontpage_lead/story/23266

"County prosecutors filed murder charges against Fish, claiming that Fish went beyond the circumstances of the moment and needlessly killed an unarmed man when other options were available."


MSNBC has a pretty good piece on the deal.

http://www.msnbc.msn.com/id/15199221/

 

[beaucoup ammo]

Thanks...figured there had to be more to it. I doubt my ability to run a mental list of applicable laws through my mind in a simular circumstance.

 

[Smellvin]

A prosecutor arguing that a certain type of ammunition has too much stopping power, thus making the user a homicidal maniac may be BS. The problem, however, is that he just needs to convince twelve people, who (in general) weren't smart enough to get out of jury duty, that he's right.

To slightly alter a Churchill quote: trial by a jury of your "peers" is the worst form of justice... except for all the others.

 

[goColt]

Wikipedia ain't gospel

Don't believe everything on wikipedia.

+1

Wikipedia:About Wikipedia is written collaboratively by volunteers from all around the world. With rare exceptions, its articles can be edited by anyone with access to the Internet, simply by clicking the edit this page link.


So basically anyone can say anything on Wikipedia.

 

[deadin]

The problem, however, is that he just needs to convince twelve people, who (in general) weren't smart enough to get out of jury duty, that he's right.

The problem is, if your analysis is correct, is that case law is being established by these 'dumb' jurors.
Are you doing your part to reverse this trend or are you one of the 'smart' ones that don't believe in jury duty and will do anything to avoid it?

 

[yhtomit]

Wikipedia ain't gospel (but it's not bad)

Wikipedia is flawed, no doubt. There have been some articles of the "not even wrong" variety, where editing a word or two, or cleaning up a sentence, just didn't seem worth it, bc there'd be no way to actually fix some underlying problems.

However, *for the most part*, it's a useful, accurate resource, and one with more detail on more subjects than just about any other single source I can think of. Certainly if you want information on guns (hardware, not uses, as her), WP does a lot better than almost any forum besides dedicated gun sites, and, I've found, frequently better than those. Gun-centric sites are a bit like gun stores sometimes; there's some good information, some lies, and some exaggeration (of which, some is merely innocent ).

For the hardware aspect of guns, a) the information is often good as is, and b) cliche, I know, but you really can easily correct / improve articles ... if you know that the Snufflewitz Carbine Model A34 *really* came with an interchangeable trigger system, rather than a fixed one as some ignoramus has asserted, you can correct the article a whole lot more effectively than you can respond to nearly any other source of information online, and even more, to information in print. (Again, this is a lot easier for isolated questions of fact than for overarching assumptions ... )

Also, consider some of the alternatives: There's misinformation, tall tales, marketing glibness, and all the bad things that affect Wikipedia, in print magazines that hit the shelf every month And on scientific topics at least, WP compares very favorably with established conventional encyclopedias such as the Enc. Britannica.

(See http://blogs.nature.com/wp/nascent/2005/12/comparing_wikipedia_and_britan_1.html for an informal discussion of the study, which was to no one's surprise attacked as inaccurate by the E.B. editors, but they can't dispute that both sources have errors, or that in some cases the WP version surpasses E.B.'s.)

I've personally found many of the gun-related articles on WP useful -- biggest problem I have with WP is that it's a time sink -- so much interesting stuff on there, and suddenly it's 4 o'clock.

Cheers,

timothy

 

[jeep-2]

if what i saw and heard on TV was true, i would have stopped the attacker with a shot of Bear spray.

 

[Thain]

I don't have it in hand, but in a recent article in by Ayoob, he told of a prosecutor who rail-roaded a CCW holder who used "powerful" .40 calibur, and "excessivly lethal" Hydra-Shok rounds.

I'll try to cite the magazine when I get home; Unfortunatly, Ayoob never seems to provide citations for his sources. I trust the man's writting, mind you, but it would be nice if he'd provide case names (maybe even full-on bluebook citation in a footnote... Mr. Ayoob, I know you sometimes read these boards, have sympathy on us poor paralegals!)

 

[beaucoup ammo]

Thain, that might have been an "American Handgunner" article from last year. Ayoob delt with hand loading in that exact context.

 

[Thain]

I remember the handloading article, but this was from the last month or so.

Now that you mention it, I remember it was "American Handgunner" had the new OSS on the cover...

 

[JLStorm]

Wikipedias lack of accuracy made the papers this week (usa today) because many students are now using it to help with homework and projects and getting bad grades because the information is wrong....ya get what you pay for I guess lol

 

[hrgrisso]

Harold Fish

I have been following this story since it happened. (Arizona Gun Owner and whatnot).

This case was the evidence used to cite the necessity for Arizona to adopt the "Castle Doctrine." In Arizona for years the burden of proof was on the self defense shooter.

This case was perfect for it and sadly the legistlature had to strip the retro piece to get it through. Earlier this year they tried an addendum to change that and Napalitano (our wonderful governor) vetoed it.

I wrote her to try and disuade her and this is and excerpt of the letter that I found most poingent. By the way, how do I put a letter like this online so others can view the original and attachments?

From: AZGOV [mailto:[email protected]]
Sent: Wednesday, March 07, 2007 10:49 AM
To: Hyrum Grissom
Subject: Governor Veto SB 1302




Dear Constituent,

Thank you for your recent email to Governor Napolitano regarding SB 1302. As you may already know, the Governor has vetoed SB 1302. The basic self defense law was signed into law last year and is already in effect. SB 1302 only raised the issue whether the self defense justification should be applied retroactively to cases pending trial on April 24, 2006, the date the basic law went into effect. The Governor states the SB 1302, "Would lead to the reopening of a large number of cases including routine cases where a criminal has already pled guilty to assault or aggravated assault." If SB 1302 went into effect it would mean contacting hundreds of victims and telling them they now have to come to court to retry the cases against their attackers. Nearly every prosecutor and the major victims' groups oppose the retroactive application of this defense.

Again thank you for taking the time to voice your opinion in this important matter. I've attached for your review, the Governor's veto letter and letters from public and private organizations.

Pamela S.
Constituent Services
Office of Governor Janet Napolitano
602 542-1318

The middle part strikes me as hollow here, the bit about

only raised the issue whether the self defense justification should be applied retroactively to cases pending trial on April 24, 2006, the date the basic law went into effect. The Governor states the SB 1302, "Would lead to the reopening of a large number of cases including routine cases where a criminal has already pled guilty to assault or aggravated assault

Often times individuals on trial because the old law made them guilty until prove innocent, would plead guilty to spare the cost to their family, the pain and continued rape of their families. Now when Napolitano signed the Castle Doctrine into law she said that it was to make the Justice system fair to all and that it was necessary to prevent innocent people from serving time. But now to look back, nope we're going to keep the ones we've got in prison. Sorry the whole thing stinks of dirty politics because the Castle Doctrine was supported by a republican legislature strong enough to strong arm her into it.

I'll get off my rant now and hope that made some sense.

 

[Cesiumsponge]

Wiki is a good collective source for checking out the citations at the bottom so you can further research yourself without having to spend hours scouring the Internet. I would say its 75% right and 25% wrong, but if you're using it as a research tool, it means you're not knowledgable on the subject and you won't know if you're going to get that 75% or 25%.

It changes in real-time so its actually been said that the information is more updated than traditional printed volumes of encyclopedias, but its only as good as the peer review. Really popular subjects will no doubt get more peer reviewing than something more esoteric like underwater basket weaving. It's a good tool, but don't rely on it extensively and don't rely on it without crossreferencing.

 

[Dustinthewind]

Too much power?

I can't find the article at the moment, but I believe it was in a recent issue of Handgunner and the article was written by Massad Ayoob. The man in question was carrying a 10mm, which the prosecutor made a big deal of. The man was first attacked by the homeless mans two dogs, firing a warning shot he scared the dogs off only to be attacked by the homeless man who, by the way, had an extensive criminal record. One of the factors that sent this Arizona man to jail was the fact that he was carrying the 10mm which the prosecutor labled as excessive power and the jury bought it. Another man was convicted for using deadly bullets. He was carrying Hydra Shok's. I will try to find the magazine and post the issue. It was a real eye opener on ccw and the gun/ammo that one Carries.

 

[JLStorm]

Another man was convicted for using deadly bullets. He was carrying Hydra Shok's.

Ummm....isnt that the point? If we carried non-deadly bullets we wouldnt be responding to lethal force with lethal force. I have a feeling (hope) there is more to this story.

 

[Charshooter]

Foe me, these are just the problems one faces living in the "New Dawn"

 

[cheygriz]

Remember, even if you ARE convicted by a jury because the prosecutor was a better actor than your attorney, if the law wasn't followed exactly to the letter, the conviction WILL be overturned on appeal.

 

[Snarlingiron]

I just saw an account of this on television (Dateline, if I remember correctly). While I clearly realize that most TV folks have a clear anti gun agenda, I have to question why the man fired a warning shot at two dogs, but placed 3 rounds into center of mass of an unarmed man without the same precaution. I carefully listened to the account, and to the account of Mr. Fish. This was the first thing that popped into my mind. I have to see the man's criminal record as irrelevant. Certainly Mr. Fish couldn't have known what that individuals record was at the time. While Mr. Fish is certainly an exemplary citizen by all standards, and the dead man had a less than sterling background, I can't see where Mr. Fish excersized proper restraint. The attorney, in following the "too powerfull weapon, and ammunition designed to kill i.e. hydro shock" tactic was just following a standard track intended to impune the intentions of Mr. Fish. I personally see it as a red herring with no relevance to the case. On the other hand, folks that do not have firearms knowlege will likely be swayed by it. I just can't get past the idea that he fired a warning shot for the dogs, but not the human. Had he done so, I believe the outcome of this case would be very different. Either he could have avioded shooting the guy, or he would have a clearer defense in that the guy that was shot was clearly deranged because he ignored a warning shot. I am not passing judgment either way, just saying I find it troubling. At the end of the day, I think Mr. Fish overreacted. It is at the very least a sobering incident that clearly points out what a formidable responsibility carrying a gun is. It is there to use if you need, but make damn sure you really need it.

 

[WayneConrad]

It is my opinion that the evidence would not support a conviction of Harold Fish. Today. It did back then, though.

How's that?

At the time of the incident, Arizona law allowed the use of deadly force in self defense only if you first admitted to the killing, and then prooved that it was self defense. In other words, you had to admit to being guilty, and then prove yourself innocent.

Nice, huh?

We've fixed the law since. Now the burden of proof is on the state, like it always should be. Harold's lawyers attempted to get him a retrial under the new law, but failed.

 

[BullfrogKen]

Our Study Group discussed this case in some detail this month.

We observed that the judge and jury found this was a case of "imperfect" self defense. They believed he was in fear of his safety. Obviously the attacker knew the man was armed. Fish had just fired 2 rounds at those dogs. He may not have intended them as warning shots, but they certainly served to alert everyone within earshot he had a gun.

With that knowledge, his attacker proceeded to rush Fish, in fact coming to within one foot - touching distance - before he was stopped with 3 rounds fired by Fish. The intent that his attacker was closing the distance to commit harm to Fish was clearly demonstrated, and ackowledged by the judge and jury.

The problem was the jury felt Fish could have, and should have, used force in a manner that wouldn't kill him. They felt Fish could have placed his shots in some area other than his chest. Fish relied upon his training at the schools he attended that asserts if we must fire, we fire center mass. This is a disturbing decision from the trial to see if it sets a precedence for requiring we use deadly force in "less deadly" forms. Certainly we all believe the use of a gun can't be construed in any way less than deadly force. It is per se deadly force once we fire it. The jury was persuaded it could be, and should have been.

Wayne, the claim to self-defense is an affirmative defense. Any affirmative defense necessitates we assent to committing the act, in fact intentionally commiting the act. Once you admit to committing the act, yes, we have in some sense admitted "guilt". It is also encumbant on the claimant to provide evidence that the claim was justified. That's just the way the law works. The rules for admitting that evidence and establishing that claim are more relaxed and meet a lesser burden that proving guilt in a crime.


This is certainly an interesting case, and goes farther than "the people were sheep, the prosecutor was a jerk, and the judge was a fool". It has serious ramifications for the training community should it establish law. It also means we cannot rely upon "I did what I was trained to do" as the sole defense for our actions. The jury looked for Fish to exercise his own values and judgements to form an appropriate response in what they considered a grey area, one that certainly justified self defense, but they concluded didn't quite rise to the application of 3 rounds placed center of mass.

 

[HimNAz]

His 10mm Hurt His Case

Prosecutor made a point of Fish's 10mm as well as the Hi-Shok ammo. Said it was only intended to kill, I believe. Both of the jurors I saw interviewed mentioned that after the decision. Fish's defense was, IMO, less than first rate in this regard. Every LEO I'm aware of in this part of Arizona carries Hydros or equivalent. As far as the 10mm, that caliber is carried by LEOs in some parts of the US.

Fish has been critized on some forums for firing the warning shot(s) at the dogs.

This prosecution took place in liberal Coconino County. Investigating officer recommended no prosecution.

 

[cheygriz]

Any time you shoot and kill an UNARMNED person, you're opening the door to prosecution, regardless of the circumstances.

 

[tipoc]

"Warning shots" for the dogs? Actually shots intended to scare them away or misses.

There were no witnesses other than the shooter? Interesting.

This looks like a case of a prosecutor with aspirations to higher office. Very common. Coupled with a defense attorney who didn't know their stuff. Also common. It's interesting to me that the shooter did not take the stand in his own defense.

Very interesting that he appreared for sentencing in prison garb and shackled hand and foot.

There may be more to this story than first meets the eye.

It may reassure some that with a new trial he has a good chance of getting off. Meanwhile he has spent a good piece of time in the joint and gone deeply into debt, or spent up the family's savings.

tipoc