Reloads a legal nightmare?

[Floppy_D]

Here's what I do:
Pick a SD round I and my gun like.
Make sure it works in my carry mags.
Commence handloading cheap rounds that match the recoil, and practice with them to stay proficient.
Carry the factory ammo, and replace it on my birthday.

All my bases are covered.

 

[gc70]

However, from what I've seen, the "first tier problem" is going to be the inability to forensically replicate the GSR patterns of handloads. When our account of the incident is questioned -- and we have to assume it will be -- we cannot expect the Court to take our word for what is in the handloads.

Mas, you pose an interesting quandry. The courts do appear to assume that all factory ammo of a given type is the same, while rejecting that assumption for reloads. I submit that the "first tier problem" is to prove or disprove either or both of those assumptions. If there are any rounds (factory or reloads) remaining in the gun, the best solution would be to test for GSR patterns using the remaining rounds.

 

[Frank Ettin]

I've stayed way from the GSR issue, having had no personal experience.

As for accuracy, I've tested self defense ammunitions from major manufacturers for my personal use, and those I've tried have proven quite accurate.

 

[Kleanbore]

If there are any rounds (factory or reloads) remaining in the gun, the best solution would be to test for GSR patterns using the remaining rounds.

That would seem to make sense, GC, but (and this is for your consideration, not a rebuttal), with factory loads you could, if necessary, bring in data regarding the manufacturer's QC processes, loading machinery performance parameters and settings, and even lot acceptance test data to prove consistency from round to round. With hand-loads, you would have to get the court to accept your assertions regarding load data. That didn't happen in the case that Mas cited.

Your thoughts on that?

 

[gc70]

fiddletown

I doubt that the incremental accuracy of commercial or reloaded ammo would be a significant factor in most shooting cases. On the other hand, GSR analysis of who fired the gun, at what distance, etc. would seem to be potential central issues in any shooting trial.

Kleanbore

The manufacturers have a clear advantage in documentation demonstrating consistency, which is undoubtedly why assertions about factory ammo are generally accepted by the courts and assertions about reloads are not. Nevertheless, the proof may be in the actual ammo, whether factory ammo or reloads, which is why I raised the question of testing the remaining ammo.

 

[massad ayoob]

GC70, that's what I had hoped would happen in the Bias case. It did not.

The argument from the prosecution that prevailed was two-fold:

1. That since GSR testing uses up the ammo, it is destructive testing, and that the defense was requesting permission to destroy the evidence. I personally thought that was BS, but I didn't get to rule on it and won't get to rule on it the next time it comes up.

2. That since the defendant had LITERALLY "manufactured the evidence," he could have loaded the fired round with one type and/or quantity of powder and the others with something else. I have to admit that this argument does have some merit.

Moreover, there's always the possibility that the fight will have been sufficiently intense to have required the shooter to run the gun dry, leaving no remaining live rounds as evidentiary artifacts.

Just as no one has been able to come up with a single case, in these many long and argumentative threads on this topic, in which a court has accepted a handloader's loading records or testimony as to the composition of the load, no one has yet come up with a case in which the court approved testing of remaining handloads in evidence for GSR purposes.

Cordially,
Mas

 

[mccook8]

Here's the problem as I see it, Mas:

The courts are perfectly willing to ASSUME that one factory load is the same as any other from the same production run, but NOT that one handload is the same as any other from the same production run.

They are willing to take the word of a commercial manufacturer, but not that of an individual, regardless of the amount of documentation involved.

....even though many handloaders are downright anal about documenting every possible variable. I've seen labels that include CASE WEIGHT, for crying out loud. (and I'm not ashamed to admit that I've sorted cases by weight myself during quests for The Ultimate Load)

It's not fair. At least we can KNOW that it isn't fair, and therefore only carry factory ammo. But we don't have to LIKE it. There's the world as it SHOULD BE, and the world as it IS. We have no choice but to live in the world that IS.

By the way, I'm a huge fan of your writing, and it's all kinds of cool to be interacting with you here.

 

[Kleanbore]

The courts are perfectly willing to ASSUME that one factory load is the same as any other from the same production run, but NOT that one handload is the same as any other from the same production run. They are willing to take the word of a commercial manufacturer, but not that of an individual, regardless of the amount of documentation involved.

Let me go out on a limb here. In the case cited, the court refused to admit evidence relating to ammunition loaded by the defendant. It is conceivable to me as a lay person that I might have a better chance of having ammunition loaded for me by you (McCook) tested and the evidence admitted. However, I wouldn't want to be the first to try it. Your methods and documentation are no doubt rigorous indeed, but without ISO 9001 certification and multiple, independent checks and balances, the prosecution has many grounds for objection. Having said that, I'd be honored to fire some of your loads on the range or on the trail.

Comments are welcome.

By the way, I'm a huge fan of your writing, and it's all kinds of cool to be interacting with you here.

Ditto!

 

[Defensory]

Posted by Massad Ayoob:
We have carry gun/factory JHP ammo combinations out there that can achieve one-inch groups at 25 yards. Two-inch groups are fairly common.

What are the chances of needing tighter accuracy than that in a firefight, particularly in light of the user's ability to deliver that accuracy in a field position with bullets coming his way?

The vast majority of gun owners who reload for their defensive carry handguns, do so to save money. Accuracy isn't a consideration for virtually all of them.

I'm NOT talking about competition and other specialty shooters, who obviously give strong consideration to accuracy when reloading.

Posted by Massad Ayoob:
We saw that in the Bias case, where the defendant's own lawyers said he probably would not have gone to prison if his gun had been loaded with factory ammo that could have been verified.

Please note the word "probably". Since even Mr. Bias' own legal team, which was present in court during the entire trial, can't definitely state that his use of reloads was the reason he was found guilty, then you certainly can't.

Posted by Massad Ayoob:
Remember, NO ONE HAS FOUND A CASE WHERE THE COURT ACCEPTED THE SHOOTER'S WORD OR RELOADING RECORDS AS TO THE COMPOSITION OF HIS HANDLOADS. THIS WILL PREVENT A TRUE GSR TEST TO DETERMINE ACTUAL DISTANCE.

Which doesn't prove that no such cases exist.

I submit that there are so few actual cases where a person was sent to prison based on the usage of reloads alone, that most people who share my opinion on the matter don't even bother to research such cases.

Posted by Massad Ayoob:
As others have said here, it's about balancing predictable need against predictable risk.

You've presented a grand total of two court cases to support your position.

In one case, the defendant was found NOT guilty. In the other case, the defendant's lawyers allegedly stated that the defendant PROBABLY would not have been convicted if he hadn't been carrying reloads.

Hardly convincing.

On the evidence thus far presented in this thread, the hypothesis that "reloads are a legal nightmare", has clearly failed.

I don't reload for defensive purposes, but if I did, nothing I've seen thus far in this thread would cause me to stop doing so.

 

[Kleanbore]

Which doesn't prove that no such cases exist......You've presented a grand total of two court cases to support your position.

A mite contradictory there...

But the point is, if trial court records are not generally available and we don't have relevant appellate court records to go on, we cannot draw any conclusions about likely court action from a large number of trial outcomes. We do have two cases involving GSR, one with hand loads, one with factory, simply because Massad knew about them. And we know how the ammunition source influenced the admission of critical evidence in each.

Right?

I submit that there are ... few actual cases where a person was sent to prison based on the usage of reloads alone

I don't think anyone has ever suggested that using reloads would result in imprisonment. It is for the shooting that is the defendant is being prosecuted. Where reloads enter in is in the defense of justifiability, which must succeed in order to avoid imprisonment or adverse civil judgment. To support the Tier 1 discussion that Massad brought up, I'll illustrate the point with a hypothetical example. The shooter has used deadly force and has killed someone. The shooter is indicted and put on trial for homicide. The shooter must mount an affirmative defense on the basis that the homicide was justifiable. The case may hinge on whether the distance at which the shot was fired indicates that emergency use of deadly force to prevent imminent bodily harm was justified. If there are witnesses to give favorable testimony, great. If not, and in particular, if the only witnesses falsely contradict the shooter's story, GSR may be the only exculpatory evidence available. So--if the evidence is not admitted and the shooter is found guilty, would you say that he was "sent to prison based on the usage of reloads alone"? I wouldn't. But that's not the point.

the defendant's lawyers allegedly stated that the defendant PROBABLY would not have been convicted if he hadn't been carrying reloads. Hardly convincing

.

Who cares? The outcome of the trial isn't the real issue. The fact is, the evidence was not admitted. I don't want that to happen to me if it's the only thing standing between me and conviction or a large civil judgment.

So--are hand loads a "legal nightmare"? Well, it appears that they were for Bias, and that they would be for anyone whose case depends on exculpatory GSR evidence.

I hope I have accurately portrayed Mas' points here.

 

[Cosmoline]

The issue of GSR and exemplars can be solved by simply keeping regular and accurate records of your SD handloads. Load weight, powder type, plus a marked box containing the rest of the batch would all give experts more than enough to go on to test.

The problem would come if you really had no records and no set batch of rounds.

NO ONE HAS FOUND A CASE WHERE THE COURT ACCEPTED THE SHOOTER'S WORD OR RELOADING RECORDS AS TO THE COMPOSITION OF HIS HANDLOADS. THIS WILL PREVENT A TRUE GSR TEST TO DETERMINE ACTUAL DISTANCE.

The court is not going to "accept the word" of anyone here. The court does not weigh evidence. Here's how it would work under the rules. The defendant would introduce the exemplars from the same batch plus his handloading records. Experts from both sides would be able to test them. Unless the batch was found to be so inconsistent and variable as to constitute an unreliable basis for expert opinion, each expert would be able to draw his or her own conclusions. This is the same way it works with factory ammo.

2. That since the defendant had LITERALLY "manufactured the evidence," he could have loaded the fired round with one type and/or quantity of powder and the others with something else. I have to admit that this argument does have some merit.

That goes to weight, not admissibility. The judge is not to serve as trier of fact on expert testimony in a jury trial. The judge is the gatekeeper, and even in federal courts under Daubert and Khumo Tire he is not supposed to be tossing opinions out because he believes one side more than the other. As long as there are good records and exemplars, there should be enough to go by.

As far as destroying the evidence, the way I've seen this dealt with in the past is to have both sides experts present for the destructive testing. Given the willingness of the defendant and the potentially exculpatory nature of the GSR evidence in the hypothetical case, I can't imagine a court forbidding it from being analyzed. Alternately, the powder type and exact weight can be measured from the exemplars independent of any records of the defendant, then recreated on the same equipment and used for analysis.

These potentialities are so remote and unusual that I can't imagine barring handloads on this basis alone. The single really good reason for not using them is a lot more simple and has nothing to do with arcane rules of evidence--they don't always go off. A crushed primer, a blocked hole, and whatever else are always possibilities. I'm careful with my loads but still about one in a hundred goes "click." Those odds aren't all that great, esp. if that one round stops your semi cold. Factory ammo is just more reliable than handloads.

Another reason to stay clear of handloads where possible is that factory ammo is tried and tested. Your handloads probably aren't. That's one reason I like the old SWCHP .38 Special rounds. They're not as fancy as some, but they have worked and worked again.

Thanks for your input though Mas, it's always nice to see you swing by.

 

[mccook8]

When I first started handloading, I had over twice as many "clicks" with my handloads than with factory ammo.

Now, it's the other way around.

For defensive use, as I said, I'll use factory ammo.

Beyond that, though, I view it as a costly convenience item.....or a reliable source of once-fired brass.

 

[Kleanbore]

Here's how it would work under the rules. The defendant would introduce the exemplars from the same batch plus his handloading records. Experts from both sides would be able to test them.

In his book, in the discussion of the Bias case, Massad says "the evidence never got in"

I (think I) know that either side may object to the inclusion of a witness as "expert" and the judge either sustains or over-rules. Is that what happens when one side introduces evidence?

 

[massad ayoob]

Lots of good, thoughtful comments today!

In no particular order:

McCook nailed it. Ain't about how we think it should be, it's about how it is.

Someone else loading the ammo for you? It'll probably be a friend of yours, which will come out in court, and the other side will have an opening to make him look like an "unindicted co-conspirator." Not helpful to the defense...and not a good position to put your reloading buddy in.

Cosmo, I know you're a lawyer, but I don't know if you do this kind of case or not. While an individual's records are likely to come in during a criminal case such as embezzlement, financial fraud, etc., it is because in that sort of case, records kept by the individual parties are standard fare and it is the "common custom and practice." That's not so with handloads and shooting cases. It is VERY uncommon for reloads to be used in shootings; that's why there isn't much experience with the issue here on this forum...and why there isn't much experience with it in any given court, either.

What we're dealing with in the ammo is hard, forensic evidence, not paper trail evidence. Different side of the game, and the court will naturally default to what the "common custom and practice" is as to admissibility of "hard evidence," i.e., scientific evidence.

If someone we loved was raped, and the rapist had left a DNA sample behind, and we had a good suspect, the district attorney would demand a DNA sample from that individual. If the suspect and his lawyer said, "Sure, man, we'll drop off a blood sample at your office tomorrow," you and I would all raise hell, as would the prosecutor. The court would never allow it. The prosecutor would say, "Your Honor, this man has every reason to falsify the evidence. We can't know for sure this is really a sample of HIS blood and DNA!"

The court would doubtless agree, and the blood/DNA sample would probably never be allowed in court.

The same dynamic is at work in the handload-related shooting case. "Your Honor, this man has every reason to falsify the evidence. We can't know for sure that the exemplar cartridges he has provided, or the reloading data and records he has offered, are really a sample of THE DEATH ROUND!"

Once again, for the same reasons, the court would doubtless agree, and the ammo sample and reloading records would not be allowed. This was indeed what happened in the Bias case, where the defendant DID have meticulous records on his loads, and the Court refused to allow them.

Like Brother McCook, I don't like it any better than you. All of us here are looking at it from our own perspective, that of honest people who aren't lying. We HAVE to realize that once we are accused, even falsely accused, we become the SUSPECT and are treated accordingly.

Better to find that out now, here, in time to prepare for it, than to find out in court, later.

best,
Mas

 

[Pop's2]

Thanks to all for your thoughts and contributions.......I for one will stick with factory loads.

 

[John_galt]

OK after having read this entire thread, in one sitting....here's a few thoughts. T

This is perintent to me, today. I live in the northern part of out great country and have no indoor ranges. I shoot in the summer and reload in the winter. I was looking at the Midway catalog today and thinking about what I would order. As I did it I was considering ordering components to reload SD rounds, but maybe not now.

First, if I am in a SD shooting and the issue comes up "This man made these homemade killer rounds!" (Please bear with me here I am going to give the short but less acceptable response). "Yes I did, the reason I killed him was he was going to kill me. I was in a situation that unforuntately required lethal force, I used lethal force in the most descisive way I had available to me at the time." A little bit of it is the same reason you aim at center mass, and not to wound. If I ever fire a wepaon at someone in SD, damn right I mean to kill them. So short of the absurd - such as I shot him with a the RPG I happened to have tucked into my shorts, will the bullets make that much difference? If I have stipulated to the fact I took out a gun and intentionally killed someone in SD - Dead is dead. He/She is no more dead based on the ammunition I used, but on where I put the bullet. That said, I will also stipulate to what several people have brought up in different forms; It's never that clean cut.

I wonder if you couldn't make the opposite argument. "I reloaded because the factory ammunition was to powerful and it scared me. So I reloaded these kinder gentler bullets." Ummmmm, nope thats a non starter.

The issues of testimony and credibility I can relate too. Several times I have testified as an expert witness in criminal and civil trials related to my proffession. I have also on one occassion testified in a civil case in which I wasn't participating based on my proffession. Thank God for a good attorney who prepped me well and showed me the difference. He drilled me with - Remember you aren't the expert this time. You don't have the latitude you are used to previously. You can't express opinions based on you knowledge. I am here to tell you it is one hell of a difference. The related point is few if any of us would be allowed to testify on things we have learned in years of reloading and using firearms over the however many years (Mr. Ayoob you are the exception of course.) I would guess based on my experience you are unlikely to be allowed by either your own lawyer or the DA to say a word. Attorneys is that correct?

Verdict, for me. If I had to guess it is unlikely that it would make a difference whether or not I use handloads for SD. It is also unlikely that I will have a car accident on the way to work and die tomorrow. However, I will still continue to pay my insurance premiums, both for the car and my life insurance. And drive real careful. Now I am going to go make that order for my winter realoading sessions.

 

[Defensory]

Posted by Massad Ayoob:
It is VERY uncommon for reloads to be used in shootings

Bingo!

Which is what I've essentially stated already in a previous post.

This type of thing doesn't happen enough to worry about.

The hypothesis "reloads are a legal nightmare", has thus far CLEARLY FAILED.

For anybody here who actually thinks this is something to worry about, you also better stay away from 10mm FACTORY loads. Because that's one of the things the prosecution in the Harold Fish case used against him.

They made him out to be a Rambo-type "who was using a handgun so powerful, that it's rarely even used in law enforcement and the military."

Those aren't their exact words, but that was essentially one of their arguments against Fish, and he was convicted. Last I heard, he was still in prison, and has a legal bill of over half a million dollars.

 

[massad ayoob]

Defensory, I have to respectfully disagree with your conclusion.

If you carry handloads, and are involved in a close-range shooting, the chance of falling into the trap of inadmissibility of evidence , which handicaps your ability to prove your defene, is now almost a certainty.

If you don't carry reloads, then you're correct, it's not a problem for you.

As Fiddletown and others have pointed out, the attempt to demonize the powerful gun or the hollow point bullet can be easily defeated in court. It is done routinely. I've done it many times myself. Fish's lawyer's failure to defend that issue properly has no bearing whatsoeve on the issue under discussion.

Apples and oranges.

Respectfully,
Mas

 

[Kleanbore]

This type of thing doesn't happen enough to worry about.

That's the gist of what the Ford memos said about the Pinto....

And do you know how many safe flights that Lockheed Electras made? But they were grounded due to a few structural failures.

Everyone I've ever known who got into a legal or regulatory compliance bind of any kind thought the risk was minimal.

 

[Defensory]

Posted by Massad Ayoob:
Defensory, I have to respectfully disagree with your conclusion.

And I must respectfully disagree with yours.

If you carry handloads, and are involved in a close-range shooting, the chance of falling into the trap of inadmissibility of evidence , which handicaps your ability to prove your defense, is now almost a certainty.

The virtual complete lack of case histories, documentation and evidence presented in this thread by those that hold your position, clearly fails to substantiate your claims. The hypothesis that "reloads are a legal nightmare", has thus far also clearly failed.

If you don't carry reloads, then you're correct, it's not a problem for you.

It doesn't seem to be a problem for virtually anybody in the country, since only one case involving a conviction has thus far been presented in this entire six page thread.

As Fiddletown and others have pointed out, the attempt to demonize the powerful gun or the hollow point bullet can be easily defeated in court. It is done routinely. I've done it many times myself. Fish's lawyer's failure to defend that issue properly has no bearing whatsoeve on the issue under discussion.

Merely stating that something is so, doesn't make it so.

Were you in the court room during the Fish trial? Do you have access to the written and video records of the trial?

How do you know Fish's lawyers failed to defend him properly? Please provide documentation.

I could just as easily claim that Mr. Bias was convicted because HIS lawyers failed to defend HIM properly. Also, the trial DID occur in New Jersey, which has a long history of being bitterly anti-gun and anti-second amendment.

If the Bias incident would've occurred in Texas, it's highly likely a Grand Jury would've promptly no-billed him, reloads or no reloads. I submit that the locale where a trial takes place, very likely has more to do with an individual being acquitted or found guilty, than the fact that he was or wasn't using reloads.

The Bias case is almost twenty years old. If there is indeed an "epidemic" of reloaders going to prison, creating a national "legal nightmare", it seems those who support this dubious hypothesis would be able to present a considerable number of recent case histories that ended in guilty verdicts.

Thus far however, they've only provided us with one old case that occurred in bitterly anti-gun New Jersey, which has sent a number of people to prison over the years, who used FACTORY rounds in shootings.

 

[jjohnson]

I carry factory ammo because....

I will likely never be involved in a shooting.

However, being an old soldier - I believe in any 'edge' you can give yourself if you're fighting for life and limb.

I reload extensively - and in spite of my own best efforts, every now and then encounter a 'dud' round or one that, imperfectly resized, doesn't chamber well enough for an auto to go into battery. :banghead: That's annoying at the pistol range, but potentially deadly in armed combat.

I believe that manufacturers have the Quality Control edge on me. Even without legal implications, I would carry factory ammo because I trust their product to go 'bang' with better reliability than mine.

Add the fact that I wouldn't want to give a jury or prosecutor any "ammo" by letting myself be characterized as a "gun nut" who rolls his own evil, devastating, expanding ammunition.

I'm sticking with the factory stuff, thanks. I don't buy the most technicool ammo money can buy, but I find products like the Speer Gold Dot or Remington Golden Sabre ammo quite to my liking.

 

[massad ayoob]

Defensory, we need a little perspective.

Two documented cases from the "don't carry handloads" side strongly outweigh the ZERO documented cases the handload proponents have been able to find where the reloader's word was taken in a GSR issue.

I never used the term "epidemic."

Correspondence from the defendant indicates the hollow point/10mm issue was not properly addressed by counsel.

Your position is a little like arguing that Presidents should ride in open-top vehicles because only a single President was assassinated in one.

Respectfully,
Mas

 

[Bubba613]

I'm sorry. Two cases do not outweigh anything. They are not significant in the totality of legal literature. The chances of GSR being the decisive factor in a shooting are effectively nil. The chances of being in a defensive shooting are already low enough for most folks.
It's like arguing that people shouldn't fly on United or American Airlines because their most recent fatalities killed more people than any other accident.

 

[evan price]

After reading the totality of this thread (and the recent article in the magazine), I have to agree with Mr. Ayoob. When you consider that yes, only two cases have been presented in which the choice of ammo or gun made any issue at all with regard to the defense, that is two actual cases. Going back to the Pinto as was mentioned above, how many people were actually killed in a Pinto?

ONE case is too many given that most legal decisions are made with prior trial history setting precedents.

In this case, a determined prosecutor can cite NJ v. Bias and there you are- a precedent was set in which examination of handloader's records and comparison testing of other ammo was not allowed.

I shoot handloaded simulations of Speer Gold Dot +P 124-gr 9mm in practice- for carry use I load the real things.
Even 1 chance in 1000 is too much risk for me.

 

[massad ayoob]

False analogy, Bubba.

Fact: a significant number of defensive shootings occur at powder-burning distance.

Fact: once that happens, if your account of the incident is questioned, hard evidence such as GSR will make or break your credibility.

The argument that you're unlikely to be in a shooting so you're even less likely to be in a close range shooting doesn't hold water. None of us here EXPECT to be in a shooting, but we carry guns for the worst case scenario in which the odds go against us and we do become so involved.

If someone doesn't believe he'll ever be in a close range shooting, fine...but that has more to do with denial than with the topic under discussion.