Self Defense Over Kill?

[Uteridge]

Circumstances where state of mind is more important than tangible facts are few and far between. To be clear though, I am making the same argument that you are. Using a gun that could be used against you in a case in court is not a good idea unless it can be readily justified. I am an active duty Marine and my nightstand gun is an M-4 that is set up exactly like my duty weapon because it is what I am familiar with and best trained on. I own it because practicing with it makes me better at what I do for a living and could contribute to me making it home the next time I am overseas. Anyone trying to attack my use of an M-4 as a self defense weapon would be fighting a steep uphill battle in any court of law.

I would have a hard time justifying why, of all the guns I own, I decided to shoot an intruder in my home with a 45 Colt loaded with heavily duty, kill anything on God's green earth Buffalo Bore ammo. That weapon/ammo combo makes it look like I am out to kill someone, not stop them. Coupled with some internet post telling everyone how much I would make someone suffer if they ever broke into my house then I might have a bad day in court. If I was a cowboy shooter and a pair of Colt SAA .45's were all I owned then that would be an easy sell.

Lies, Damn Lies, and Statistics. One thing I hate about survey analysis, that makes it practically useless in my opinion, is that there is no argument/counter argument giving context to the discussion. Real case study is the only way to accurately tell what a jury is going to think. The prosecutor will go after your gun if he thinks it helps his case or if he just hates guns and wants "500 S&W Magnum" in the headlines of all the newspapers. If he can convince the jury through your weapon or your post that you are unreasonable and looking for violence then you will not fare well in court. On the flip side, your lawyer gets to talk too so it depends whether or not his story is better than the prosecutor (and the composition of the jury). I would not personally arm myself with anything that is out of the ordinary or expected for my area/occupation/hobbies because it is one more issue that I don't want to have to deal with if I am forced to defend myself. It is already hard enough to deal with the aftermath of a shooting; (probably much more so as a civilian because you don't have the support system that we do in combat) the last thing I want to deal with is having my name in the paper and in the courtroom being thrown around as a bloodthirsty vigilante because I used something that normal people might find excessive. Add to that the fact that I believe that any modern handgun that is accurate and allows quick follow-up shots is better than shooting my 3 inch 41 Magnum for defense purposes. It just makes no sense to put something out of the ordinary on my nightstand in case I hear a bump in the night.

 

[Uteridge]

By the same reasoning: My advice to my Grandpa when he wanted a home defense gun was to get a .30 Carbine. He used one to great effect in Korea so he is familiar with the gun, it is hard to attack an old vet for owning the gun that they carried in combat and entrusted their life to when the answered their nations call, and you would be hard pressed to find a prosecutor that would attack his gun in the event of a shooting.

 

[Cosmoline]

That weapon/ammo combo makes it look like I am out to kill someone, not stop them.

You are taking the kill vs stop distinction out of context. It has nothing to do with mental state, but your actions. Force needs to match force, as a general principle. So for example if a man brandishes a firearm and you draw and fire, and he then drops the firearm, you are NOT permitted to keep shooting him. You have stopped the imminent deadly threat and no longer fall within the parameters for using deadly force (other than a few possible exceptions). Thus in this sense you shoot to stop (the deadly threat) not to kill the intruder.

This does not mean you need to down-grade your choice of firearm preemptively because you don't want to seem to actually be trying to kill someone. If you try to argue you used a lesser lethal weapon because you didn't want to kill anyone, and there's a dead guy there, you've opened up a REAL can of worms. Claiming you used what you thought some kind of lesser force calls into question whether deadly force was justified at all. Along these same lines, saying "I just wanted to stop him" as some kind of mantra is a real big mistake.

 

[Onward Allusion]

Out of 53 posts, only one person mentioned the hearing thing. Interesting.

While protecting the lives of you and your loved ones should be primary, one also has to weigh the risk permanent hearing loss to self and your loved ones. Unless it's the only option one has (say last minute - no planning), other potent calibers are available for HD/SD.

The calibers in the OP are not indoor home defense calibers. Heck, they're not even indoor range calibers. Ever shoot a S&W 500 indoors??? It's not pleasant! Shoot one indoors w/o hearing or eye protection will mess up your hearing and possibly even eyesight (concussion).

 

[Kleanbore]

Posted by Uteridge: Anyone trying to attack my use of an M-4 as a self defense weapon would be fighting a steep uphill battle in any court of law.

At least, your counter argument would be pretty strong. I'm not sure that having an expert witness explain that the 5.56 round has some real advantages in terms of lower penetration through walls might not help, should the need arise.... Personally, I think think that that advantage is not insignificant. The same issue would mitigate against the OP's idea of using a .500 S&W for home defense.

For quite a number of years, the "black rifle" has been rather widely perceived as somewhat evil in civilian hands. Is that changing slowly? Several makers now sell sporting versions clearly intended for hunting, not that that should influence the truly objective. At one time I resisted buying an AR because of the image, but once when I handled a bolt action Model 40X stainless heavy barrel .223 rifle not long ago, the guy at the store said that he had one, and that his Remington AR consistently gave smaller groups. I hadn't known that. I handed the bolt rifle back to him.

Might the way the gun is accessorized play as big a role in perception as the overall configuration?

...the last thing I want to deal with is having my name in the paper and in the courtroom being thrown around as a bloodthirsty vigilante because I used something that normal people might find excessive.

Almost the last, but it is something over which one has control.

I believe that any modern handgun that is accurate and allows quick follow-up shots is better than shooting my 3 inch 41 Magnum for defense purposes.

That, along with the issues of blast and excessive penetration, is what the OP should take away from this thread, in my opinion.

 

[Jeff White]

Can anyone in this discussion document more then one or two cases where the choice of the weapon a person used to defend himself with was an issue? The only one I can find is the 10mm used in the controversial shooting already mentioned.

Even here in anti gun Illinois, the tool one uses to defend ones self with is largely irrelevant as far as the actual act of self defense goes. There have been been plenty of cases where the actual act of self defense was legal under Illinois law, however possession of the weapon used was not, where no charges were filed. A search should bring up plenty of cases in Chicago while their handgun ban was in place where people used handguns they couldn't legally possess to defend themselves and no charges were filed. I have personal knowledge of a case in East St Louis where a person without a FOID card used a handgun to defend himself and no charges were filed.

I think that the idea that some over-zealous prosecutor will use your choice of defensive weapon to run you through the court system after a good defensive shoot is mostly a gun culture urban myth.

The choice of weapon may have some bearing in a civil wrongful death action, but it's largely irrelevant in a criminal action.

 

[Uteridge]

I don't have information on the specific case but there is a defense attorney in Missouri, that teaches concealed carry, that relays a number of stories where prosecutors have made a point of pointing out that the defendant use a 357 MAGNUM to insinuate that the choice of weapon showed that they were in the wrong. I have also read a story by Massad Ayoob where a lady shot a man with a 44 Magnum and an issue was made about it in court. Sorry that I don't have references but I know one is from an Ayoob book and the attorney actually produced a DVD on Missouri use of force laws/carry laws that you can buy online where he relates the stories of his court cases defending law-abiding citizens who have used firearms in self defense. The lawyer's name is Kevin Jamison and he works in Kansas City primarily as a self-defense attorney.

 

[Uteridge]

The self defense DVD that Mr. Jamison makes is excellent. I highly reccomend it for anyone interested in self defense as a primer to understand what is legal and what is not. Some of the DVD is Missouri specific but most it applies just about anywhere.

 

[Uteridge]

Onward Allusion, that is an important point to get back to. I have had to fire both 5.56 (no sure how many) and 45 ACP (one shot) indoors with no hearing protection. I don't remember hearing the .45 (don't remember recoil either) but the 5.56 made my ears ring for hours. I have been next to someone shooting a .500 at the range indoors and I can't imagine that without hearing protection.

 

[Frank Ettin]

Can anyone in this discussion document more then one or two cases where the choice of the weapon a person used to defend himself with was an issue? The only one I can find is the 10mm used in the controversial shooting already mentioned....

Perhaps not a case, but there is the study done by Glenn E. Meyer (a moderator at The Firing Line and GEM here) described in this article. I see that the article has been alluded to in this thread, but I didn't see a link to it.

...There have been been plenty of cases where the actual act of self defense was legal under Illinois law, however possession of the weapon used was not, where no charges were filed...

On the other hand, we have Bernie Goetz in NYC. He was tried and acquitted for assault; the jury apparently accepted his self defense claim. But he was convicted and went to jail on a weapons charge; his gun wasn't licensed.

...I think that the idea that some over-zealous prosecutor will use your choice of defensive weapon to run you through the court system after a good defensive shoot...

The thing is, if it's a good shoot, nothing else much matters. The issue, however, can arise when a DA and/or grand jury decides that justification isn't clear. The it's not a good shoot until a jury says so.

So I see this as a question of what choices can I make ahead of time that might avoid a potential problem with a jury without making things worse for me on the street.

Of course, sometimes one might have to do with what's at hand. But if he's choosing a gun to keep available for home defense or to carry for self defense, he has an opportunity to make some choices. And it strikes me that for a variety of reasons some of the guns that could be problematic for a jury, e. g., a .500 S&W, might not be the best choice for self defense in any case.

...You do in fact have a right to a jury of your peers...

Acutally, the language from the Constitution is "...an impartial jury..." (6th Amendment). Court decisions refer to a "fair-cross-section" or "representative of the community" test. Nowhere in Duren vs Missouri does the Court refer to a "jury of one's peers."

 

[Uteridge]

Quote:
Originally Posted by Uteridge
...You do in fact have a right to a jury of your peers...

Acutally, the language from the Constitution is "...an impartial jury..." (6th Amendment). Court decisions refer to a "fair-cross-section" or "representative of the community" test. Nowhere in Duren vs Missouri does the Court refer to a "jury of one's peers."

You are playing word games. The "fair-cross-section" is an obvious reference to the "jury of peers" in the Magna Carta as there is no other reference in the Constitution on the matter other than that you are entitled to an impartial jury. U.S. law has consistently held to the concept in the Magna Carta that the jury must be representative of a society and must exclude no group as a whole.

 

[ForumSurfer]

Excessive? Not in my mind or by law.

Could a prosecutor use that info against you? Possibly.

But the simple facts are that I could get off all 15 rounds of 9mm center mass by the time I could get five shots center mass with a huge, mule kicking revolver.

If I had a manageable sized revolver that I could carry on my hip regularly and comfortably like my 19, IF I could actually afford to practice often just like I do with my 19 and IF I could get fast follow-up shots and fast reloads...then and only then would I rely on such.

I realize one round from such a handgun has a rifle caliber like affect on the target...but I don't want all of my eggs in one basket. Misses happen.

 

[Frank Ettin]

You are playing word games. The "fair-cross-section" is an obvious reference to the "jury of peers" in the Magna Carta as there is no other reference in the Constitution on the matter other than that you are entitled to an impartial jury. U.S. law has consistently held to the concept in the Magna Carta that the jury must be representative of a society and must exclude no group as a whole.

Sorry, but you've got it wrong.

[1] The word "peer" means "one that is of equal standing with another : equal; especially : one belonging to the same societal group especially based on age, grade, or status..." (http://www.merriam-webster.com/dictionary/peer). A fair-cross-section or representative sample of your community will necessarily include people who are not within your societal group.

[2] The notion of a "jury of one's peers" from Magna Carta was indeed intended to refer to being judged by one's equals. Magna Carta was forced on King John by the feudal barons to protect their interests. Their first concern was that they be judged only by nobles of similar rank.

 

[Uteridge]

I stand corrected.

 

[Jeff White]

Perhaps not a case, but there is the study done by Glenn E. Meyer (a moderator at The Firing Line and GEM here) described in this article. I see that the article has been alluded to in this thread, but I didn't see a link to it.

That's an interesting article and something to think about. I've read it twice and I haven't seen a reference to what instructions the mock judge gave the mock jurors. Jury instructions often require the jurors to look at certain aspects of the case and ignore others as they aren't pertinent to the issue of law.

On the other hand, we have Bernie Goetz in NYC. He was tried and acquitted for assault; the jury apparently accepted his self defense claim. But he was convicted and went to jail on a weapons charge; his gun wasn't licensed.

I never said that charges couldn't have been filed, they obviously were in Goetz case. I said that quite often they weren't. I think public opinion has more to do with no charges being filed in those instances then anything else. In many jurisdictions prosecutors are elected and defending one's home is a popular concept. It wouldn't look good at re-election for your opponent to bring up a case where a homeowner was hounded into bankruptcy or jail for taking the same action in self defense most of the voters would take.

The thing is, if it's a good shoot, nothing else much matters. The issue, however, can arise when a DA and/or grand jury decides that justification isn't clear. The it's not a good shoot until a jury says so.

That is true, but I think a good defense attorney would be able to keep references to the weapon used out of the proceedings as irrelevant to the actual act of self defense. The "victim" would be just as dead if they had been shot with a single shot .22 instead of the 5.56x45 round that an AR or Mini 14 would use. Like I said before, I can see this being an issue in a civil action where the rules of evidence are more relaxed then in a criminal trial. A good defense attorney should be able to get a judge to stop the prosecutor from making any reference to the choice of weapon and ammunition unless they were relevant to the actual act the homeowner was being prosecuted for. You might not get references to your AR15 banned from the trial if you emptied a 30 round magazine into the back of your assailant, but in most other cases your choice of weapon should have no relevance to the act itself. A good defense attorney should be able to get the judge to instruct the jury to only consider the act, not the tool used when they start their deliberations.

 

[Frank Ettin]

The thing is, if it's a good shoot, nothing else much matters. The issue, however, can arise when a DA and/or grand jury decides that justification isn't clear. The it's not a good shoot until a jury says so.

That is true, but I think a good defense attorney would be able to...

A good defense attorney should be able to do a lot of things. But even the best defense attorney can't guarantee that he will be successful doing them.

Some of the choices we make ahead of time regarding how we might prepare for a self defense encounter can determine what, if we're unlucky in the legal aftermath, our defense attorney will need to be able to deal with. If one chooses to carry a S&W .500 around town for self defense, he will be giving his lawyer, if it ever comes to that, a different and greater challenge than if he carried a 1911 in .45 ACP. The greater the challenge we set for our defense attorney the greater the uncertainty of the outcome.

Personally, I'm in favor of trying to make it as easy as I can on my defense lawyer, if I'm ever in that unhappy position, to the extent I can do so with out impairing my chances for survival on the street.

...A good defense attorney should be able to get a judge to stop the prosecutor from making any reference to the choice of weapon and ammunition...

Even though a good defense lawyer should be able to keep some comments out, the weapon and ammunition, as well as some testimony about them, would be pretty certain to come into evidence. If nothing else, the gun will be admitted into evidence as the gun with which the defendant shot the alleged assailant, and a Firearms and Toolmark Examiner will be likely to testify regarding his examination of the gun and ammunition in the normal course of the investigation of the event.

...In many jurisdictions prosecutors are elected and defending one's home is a popular concept....

And in some jurisdictions, it may not necessarily be. And being in a "gun friendly" jurisdiction is no guarantee. Consider --

Larry Hickey, in gun friendly Arizona: He was arrested, spent 71 days in jail, went through two different trials ending in hung juries, was forced to move from his house, etc., before the DA decided it was a good shoot and dismissed the charges.

Mark Abshire in Oaklahoma: Despite this happening on his own lawn in a fairly gun-friendly state with a "Stand Your Ground" law, he was arrested, went to jail, charged, lost his job and his house, and spent two and a half years in the legal grinder before finally being acquitted.

Harold Fish, also in gun friendly Arizona: He was convicted and sent to prison. He won his appeal, his conviction was overturned, and a new trial was ordered. The DA chose to dismiss the charges rather than retry Mr. Fish.

 

[mr.trooper]

Even an experienced pistolero will have trouble making timely follow up shots with a magnum handgun when under pressure.

Also consider that many loads for such weapons are intended for larger bodied creatures than people - resulting in much wasted energy.

NOW factor in how often shooters miss their target in an SD situation, even when they have had training...

Put those together with the added disorientation of extra muzzle blast, the added blindness of extra flash, the added bulk of a magnum handgun, and the limited capacity, and IMO its a TERRIBLE idea, even for an expert handgunner.

NOW combine THAT with the legal ramifications....

I think you can see it's time to come back to reality - use a normal handgun in a normal caliber shooting 'plain Jane' ammo; it is NOT a handy cap in any way. It is actually an asset.

 

[Kleanbore]

Post #67

...provides us with an excellent summation, but there may be worthwhile comments yet to come.

 

[Prosser]

I was trying to decide today if there is such a thing as too much power in a handgun meant for home defense/self protection.

Yes. If you live in New York City, or San Francisco, only the gang guys are allowed to carry .454's, since they figure collateral damage is not probable, or they don't care, and, they are going to be on the hook for the first murder anyway.

A certain gang enforcer runs around San Francisco with a .454 Casull. I know one officer that faced him, gun drawn, and decided his .41 Magnum was inadequate to penetrate the car the guy was standing behind, and, he had no cover, and, his vest was not effective against the .454. He lived to tell me the story by seeking cover, real cover. This enforcer was brought up by George Bevin, on Rico charges, but, he beat it. Still out there.

Don't remember what Queen Diane had on her impossible to get for normal people CCW.

The extreme option, much like getting caught on the horns of a buffalo with a dilemma, leaves a lot of options that are adequate, or more adequate, then the average LEO solution, yet aren't real fire breathing solutions, like full house .500 S&W magnum 700 grain loads.

If you know your back stops, then you can evaluate your 'overkill' for ammunition for home defense.

Self protection is also going to be determined by the situation you find yourself in, and your objects behind your attacker.

I don't believe in having a home defense gun, or, caliber. My guns are for what my hobbies are, and, if I'm forced to use one, it's going to be the one that is within closest reach, not which is perfectly suited for the job.

My ideal pick for home defense is either a silenced fully automatic Uzi, or Mac 10, in .45 caliber. Either that, or a 1 bore shotgun, loaded light.

If I was allowed to legally carry a CCW gun in the PR of California, I would certainly be looking at a 200-230 grain .45 Super load, similar to the .451 Detonics load of the 80's, carried by many LEO at the time. These loads came very close to the venerable .45 Colt, 250-260 grain loads, at around 1000 fps, that proved so effective against both man and horses during the pre-Hague wars. While they recoil slightly more then a .45 ACP, they have proved very effective, and, can be shot out of standard 1911's.

There is no reason a large caliber handgun, with lower pressure loads, and proper bullet selection can't be FAR superior to any service, LEO standard gun.

As for flashbang: Certain powders, and bullet combinations can give you
less flash and bang, with a more suitable bullet, and weights that may surprise you then others.

Just because it says magnum doesn't mean it can't be loaded with low flash and recoil powders, allowing rapid shooting, with minimum recoil.

One of the reasons for carrying a 3.2 pound handgun is the weight tames recoil considerably.

The answer is there are no absolute right answers. Oddly, people that advocate their views seem to defend those choices and views with the zealotry usually reserved only for religious extremists.

I find that big bore handguns, loaded with loads suitable for shooting at the range seem to have both low recoil, accurate and fast second shots, minimum flash and bang, yet provide considerably more horse power then a .357.

Besides, they are MUCH prettier then black rifles...

 

[unwise11]

10mm auto, .45 acp, .40 smith, .357 sig, 9mm with a high cap.. I'd be comfortable with all of them but you can pick up a Smith & Wesson 686 and KNOW, it will fire, 6 times, sending a .357 magnum screaching at what it hits.
But I don't see the need for a .500 magnum or .44 mag, I mean, a person can be dropped by a hard kick, let alone a firearm.
Accuracy>Capacity<Firepower, that's how I see it in most cases.