9mm defense ammo

[nebmike]

There have been cases, described by Mas Ayoob and others, questioning the type of weapon used in a deadly encounter, and in one case in particular, an individual was convicted based on the weapon he used to defend himself, i.e. intent to cause death/bodily injury due to the "stopping power" of the weapon.

I have always advocated to use what the police use.

Again, I would to ask for clarification. In the instance that you referenced, what was the actual charge (or charges) based on the weapon itself that the person was convicted on?

If the shooting is justified and you can demonstrate that in court, the type of weapon (as long as its a lawful weapon to possess and use) is of no consequence to the posecution of the case.

If you're talking about a switch-blade or a sawed off shotgun, or a handgun with the serial number scratched off, or some ammo you made yourself by pouring mercury into the hollow point... or if you've demonstrated a history of poor decisions like pipe-bomb making, etc., then you might have an awful time with your defense in killing someone.

But if you're attacked in your home and you shoot and kill a guy who had the intent, means and opportunity to kill you or do great bodily harm to you -- and the gun and ammunition you used were legal to possess and use -- and you dont have a history of nutty activity related to weapons -- then unless you've got a completely retarded attorney, you arent going to have to worry about spending time in prison just because you chose a .44mag rather than a 9mm.

I've personally been a party to a handful of court cases involving shootings, and I've reviewed testimony and evidence in quite a few others... and I have spent a lot of time in courtrooms on non-shooting weapons related cases, and I have never personally seen the type of weapon become an issue unless it was an illegal weapon or unless the individual had some questionable weapons related history that was relevant.

And in cases where this is purported to be the case, I would venture that there are circumstances or evidence which cause complications beyond the simple choice of caliber or ammuniton.

 

[firebirdude]

My questions have been resolved. Thank you to all. Please feel free to lock this topic, as I think it has run its course.

 

[safearm]

nebmike,
The case is from 2004 in Arizona involving Harold Fish. Fish, a retired school teacher was convicted for killing a homeless man with a history of mental instability who attacked him while hiking on a remote trail. During the jury trial, the prosecutor stressed Fish overreacted through choosing to use the increased stopping power of 10 mm hollow point bullets. Fish was convicted of second degree murder and sentenced to 10 years.
In 2009, the State Appellate Court overturned the conviction and ordered a new trial. Fish was released after serving 3 years, and the prosecutor stated he would not seek a re-trial.
While there are many facets to this case, it does show that juries can be negatively influenced, particularly when the defendant is carrying something considered "unique."

 

[nebmike]

nebmike,
The case is from 2004 in Arizona involving Harold Fish. ....the prosecutor stressed Fish overreacted through choosing to use the increased stopping power of 10 mm hollow point bullets. Fish was convicted of second degree murder and sentenced to 10 years.

In 2009, the State Appellate Court overturned the conviction and ordered a new trial. .....it does show that juries can be negatively influenced,

Thanks for that... I'll definitely be doing a little research on that one.

I think there has got to be more to the original conviction than just the simple fact he chose a 10mm. The question to the jury would have been, at least partially, did the death result from a criminal act of the defendant? If they cant answer that question in the afirmative then they cant find the defendant guilty on that charge. So, there must have been something there for the first jury beyond his choice of caliber. There must have been some thought on the part of the prosecution or the grand jury that some crime(s) had been committed or they would have never indicted the guy... you cant file charges just based on gun choice or caliber if both were legal for possession and use where the shooting happened. That choice is not, in itself, indicative of a crime.

Certainly arguements like caliber / ammo type could come up, and thats why you have to have a knowledgable attorney who can redivert the attention of the jury away from a non-issue back to the substantial facts of the case. The jury is made up of people, and those people can make flawed decisions. So anything is possible. But I would submit that the overwhelming majority of self-defesnse shootings that happen in this country (and there has been a few ) happen by actors who used guns and ammunition far different than what their local (or any) cops carry... and these types of fluke convictions are just not rampant in the system.

Just two nights ago on the Denver news here in Colorado was a story about a guy who shot and killed a teenager who was one of 2-3 kids who broke into his house in the middle of the night. He fired two shots -- the second struck the teen in the head and killed him on the spot. Gun - Taurus Judge, loaded with .410 buckshot. You just about cant get a situation that is more ripe for "evil" gun and/or ammo choice arguements... but it never happened. The self-defense was clear cut and the man was never charged.

I think, from my perspective, the whole point to what I've said is that "IF" it does happen it would be an incredibly unusual circumstance -- especially when you compare the purported cases to the total number of self defense shootings. And beyond that, since each of us is liable for every bullet we send downrange, we need to be prepared for finding ourselves in court regardless of our gun/ammo choice. Part of that preparation is having a lucid and reasonable arguement for the choices you made, whether you get to articulate those yourself to the jury or whether you have an attorney do the talking for you.

If you get on the stand and say, "I chose a 10mm (which happens to actually be what I carry) becuase I knew it would kill better than anything else" -- well, then you've probably hot a HUGE problem on your hands.

Again, thanks for the cite.

 

[nebmike]

nebmike,
The case is from 2004 in Arizona involving Harold Fish. ....the prosecutor stressed Fish overreacted through choosing to use the increased stopping power of 10 mm hollow point bullets."

Thanks again for the reference! I've read three separate sources on this case now (including the appeals court ruling)and I will preface my comments by saying that I wasnt there in the courtroom, nor was I there when the shooting took place, so I am not passing any sort of judgement on whether or not Mr. Fish was justified. The case was obviously overturned on appeal so in my eyes he has now been vindicated.

That said, there were a LOT of issues to this case that went way beyond the one detail of the caliber he chose to use, which probably influenced the jury far more. There were anger issues (self-admitted by him - see my comments below about making statements), timeline issues, warning shots, wounds inconsitent with how he described the attackers posture, potential jury instruction issues, etc., etc., that go way beyond his choice of using a 10mm.

But regarding the gun and ammo, the appeals decision says:

"...the issue was not whether the type of weapon used was relevant for purposes of self-defense, but whether a different individual could testify why that witness might carry a gun and the court found that such evidence was not admissible."

and:

"Here, the State's use of the evidence was not to show prior bad acts, but to show the power of the weapons and ammunition relevant at a minimum to show whether Defendant was objectively reasonable under the circumstances in firing several shots at close range into the Victim's chest."

And most tellingly:

"Ultimately, the most recent evidence was Defendant's knowledge that the gun he used was one of the more powerful guns he owned and that he had been recommended by a gun shop to use hollow point bullets for self-defense because they were more powerful." ...which all came about as part of his grand jury testimony.

And also:

"...Defendant objected to admission of his grand jury testimony as to the legal issues of aiming at a person's arms or legs could create legal problems because the person might sue the shooter...The State argued that the testimony should be admitted because it went to Defendant's state of mind when he shot the Victim...The issue was what the Defendant was taught in his self-defense training as to why he should shoot at center mass."

This quote by Mr. Fish was also admitted as part of the evidence:

"So I didn't ask for an attorney. I didn't, you know, shut up. I didn't mislead them. I said, I'm going to cooperate fully and completely with you. I think it's my duty and obligation to account for my actions..."

THAT, my friends is why you dont make statements without an attorney!!! That part in the Miranda Warning about "ANYTHING you say can and will be used against you" is there for a reason and we should all take heed! Those are exactly the types of statements that you shouldnt be making after you shoot somebody!!! If he hadnt made such statements, it would have been very difficult or impossible for the prosecutor to introduce the topic in court.

It clearly appears to me like he brought the whole caliber and ammo selection issue up on his own and the prosecutor ran with it.

For those who havent seen this video, I strongly recommend it...

YouTube - Dont Talk to Police

And if the title causes you to pause -- I'm not cop bashing, because I 'was' a cop and I remain a very strong supporter. I think everyone who carries a gun should watch this video!

 

[Smokester653]

Check out the video..

http://media.concealedcarryforum.com/haroldfish.wmv

 

[firebirdude]

Interesting video. The very last note was also interesting. Innocent until proven guilty says it should have been like before this case...

 

[5906fan]

seems I remember Mas Ayoob caution about the 124gr fmj Nato load used by NYPD very much 'over-penetrating'. when the wonder 9's were the vogue with LEO's