Documented Overpenetration?

[Massad Ayoob]

As you noted, Sheriff, these cases tend to settle. The NYPD experience reflected what the rest of the country saw over the decades: fewer cases when the ammo used was a hollow point designed to expand and stay in the body.

Philadelphia and Los Angeles County have had them, and others, but you're asking about civilians. I was told of one by a lawyer in Indianapolis, in or near his city: citizen's .357 158 grain soft-nose went through bad guy, who survived, and into a third party behind him, who didn't. Charge was an unlawful homicide, probably manslaughter, never did learn how it turned out.

I haven't personally done any cases of overpenetration lawsuits with armed citizens, but the Texas lawyer who posted here earlier has, and he already told about it in this thread. His case also settled out of court. The pattern continues, a pattern not likely to generate appellate court decisions.

Cordially,
Mas

 

[sheriffoconee]

Mas,
My concern is that cases settle for any number of reasons. I imagine that I have been sued more than 99% of the posters here on this board, and my insurance company has settled two cases, both for less than the cost to defend me.
I, naturally, object to these cases being settled, since the settlement implies some inference of wrongdoing on my behalf. However, the plaintiff's bar understands that by suing me, that a settlement is likely enough to make it profitable. Therefore, there is not much to lose by proceeding with litigation.
I would love to hear the details from any lawyer about individual citizens who have been successfully sued for a round that overpenetrated a legitimate target in a self defense situation.
A case where a jury verdict was awarded would be very interesting.

 

[Massad Ayoob]

I agree that it would, Sheriff. (At least one of us would probably get a magazine out of it...sigh...)

At the same time, whether it's you teaching your students or me teaching mine, when they ask either of us "Where's the caselaw" before they ask us "Where's the logic," you and I both have to worry.

In one class, explaining how furtive movement shootings happen and that many of them are actually deliberate faking of going for a gun by the suspect who winds up getting shot, I suggested: "Don't eat the yellow snow, don't piss on the electric fence, and don't try to frighten a cop or armed citizen who's already so scared of you he's pointing a loaded gun at you."

One student went to a fact-check site, Snopes or something, and came back and smugly told me they had no case of anyone actually getting hurt urinating on an electric fence. I suggested he go forth and try it himself, and get back to us with the results.

Ain't heard back from him yet.

You and I will get similar questions from those we teach: "Where's the caselaw?" First, they have to ask themselves, "Where's the logic and the predictable reality-based outcome?" Collective law enforcement experience has already taught us that people get killed or badly injured when over-penetrative police bullets go through bad guys and hit people who were blocked from the cop's view by the body of the bad guy, and perhaps also predictable tunnel vision. I wonder what makes them think that will magically change when the same bullet is fired through and through the bad guy by a citizen instead of a cop.

You'd think that KNOWING the use of such ammunition has already blown away innocent bystanders and even brother officers would be enough for them to understand why you and I recommend the ammo we do; if it takes a fear of whether they'll be held accountable for it to consider using ammo that is less likely to cause corollary damage to innocent human beings, we have to work on their value systems.

Cordially,
Mas

 

[oldman45]

I will be bored today as I sit in a large law library for four hours virtually doing nothing other than offering advice to those in legal troubles.

During this time, I will look up in WestLaw and Nexus Lexus to see if any case law for such events are noted. If I find some, I will post the cites here.

 

[Massad Ayoob]

Thanks, OldMan45!

 

[wheelgun28]

You and I will get similar questions from those we teach: "Where's the caselaw?"

Well, just because its not on the books right now does not meant it cant be added. They have plenty of paper and ink to make room for "Victim X VS insert your name here"

Sadly I am sure that there are many lawyers just wanting to get involved and make this happen. And just think once YOU make the books they can cite your name as a reference, a dubious honor at best.

 

[69Chev396]

You and I will get similar questions from those we teach: "Where's the caselaw?" First, they have to ask themselves, "Where's the logic and the predictable reality-based outcome?" Collective law enforcement experience has already taught us that people get killed or badly injured when over-penetrative police bullets go through bad guys and hit people who were blocked from the cop's view by the body of the bad guy, and perhaps also predictable tunnel vision. I wonder what makes them think that will magically change when the same bullet is fired through and through the bad guy by a citizen instead of a cop.

Longtime lurker/first time poster here. Respectfully, I have some devil's advocate questions on the subject:

How many cases of over-penetration resulting in innocent third parties being hurt or killed have there been in law enforcement to the extent that they can be used to back up a claim of logical and predictable reality-based outcome?

What's the ratio of ball ammo not over-penetrating and over-penetrating and causing third party injuries in various popular calibers?

Have there been any instances of popular hollow point ammo under-penetrating and not disabling an assailant when the assailant was not behind cover, where ball ammo would have disabled him/her?

Considering the fact that all shootings are eventually reviewed by a prosecutor, isn't "where's the case law" a very salient question when talking about something like potential over penetration of certain rounds?

I've been told that .223 and 5.56 partitioned rounds fired from typical law enforcement patrol rifles penetrate LESS than a typical .40 hollowpoint. Is this true? I conducted my own admittedly unscientific tests and it seems like the .223 rounds penetrated a LOT more than the .40 Gold Dots. Is this true in the area of actual on-the-street shootings? If so, should an officer or armed-citizen not use his rifle for fear there may be someone he can't see behind his target, and instead transition to his pistol?

 

[watchmanjimg]

May I humbly suggest that we all take a deep breath and consider the following?

Whether you're a LEO or a civilian, you should do your best to avoid hitting anyone you're not aiming at. It's really that simple. There will be consequences each and every time this happens, be they legal, moral, or both--no matter how many reported cases there are.

I'm confident that one need not be a lawyer to figure this out.

 

[Massad Ayoob]

Chev, let me respond in order. All caps are not to shout, but to distinguish responses from questions.

Longtime lurker/first time poster here. Respectfully, I have some devil's advocate questions on the subject:

How many cases of over-penetration resulting in innocent third parties being hurt or killed have there been in law enforcement to the extent that they can be used to back up a claim of logical and predictable reality-based outcome?

AT LEAST 17 INJURY-PRODUCING INCIDENTS PER NYPD ALONE.

What's the ratio of ball ammo not over-penetrating and over-penetrating and causing third party injuries in various popular calibers?

.45 HARDBALL, FOR EXAMPLE, GOES ABOUT 26" (PER MARTY FACKLER) UP TO 30" (PER PATRICK SWEENEY) IN CALIBRATED GELATIN. THAT'S BASICALLY THROUGH AND THROUGH TWO PEOPLE IN A ROW AND LODGING IN A THIRD. WHEN LAPD USED BALL IN THEIR .45S THEY WERE CONCERNED TO THE EXTENT THAT THEY SWITCHED TO JHP (SWAT TEAM). AT LEAST ONE HOSTAGE WAS WOUNDED (FORTUNATELY MINOR) BY 230 GRAIN BALL ROUND THAT WENT THROUGH HOSTAGE-TAKER. LIKELIHOOD OF CAUSING THIRD PARTY INJURIES IS OF COURSE DEPENDENT ON PRESENCE OF THIRD PARTIES.

Have there been any instances of popular hollow point ammo under-penetrating and not disabling an assailant when the assailant was not behind cover, where ball ammo would have disabled him/her?
YES, IN THE OLD DAYS WITH AMMO SELDOM SEEN TODAY. OBVIOUSLY, ANY ROUND CAN FAIL TO PENETRATE SUFFICIENTLY IF IT HAS TO TRAVERSE ENOUGH HARD BARRICADE BEFORE IT TAKES FLESH.

Considering the fact that all shootings are eventually reviewed by a prosecutor, isn't "where's the case law" a very salient question when talking about something like potential over penetration of certain rounds?
NOT NECESSARILY. IT'S GOING TO BE A MATTER OF COMMON SENSE AND WHAT THE PROSECUTOR BELIEVES CAN BE PROVEN TO A JURY. DELIBERATELY USING AMMO LIKELY TO PIERCE THE ONLY AVAILABLE BACKSTOP FITS MOST FOLKS' DEFINITION OF RECKLESS AND WANTON DISREGARD FOR SAFETY. OBVIOUS KEY INGREDIENT FOR CONVICTIONS RANGING FROM MANSLAUGHTER TO RECKLESS ENDANGERMENT, AND KEY INGREDIENT FOR A MONEY-WINNING LAWSUIT AS WELL.

I've been told that .223 and 5.56 partitioned rounds fired from typical law enforcement patrol rifles penetrate LESS than a typical .40 hollowpoint. Is this true? I conducted my own admittedly unscientific tests and it seems like the .223 rounds penetrated a LOT more than the .40 Gold Dots. Is this true in the area of actual on-the-street shootings? If so, should an officer or armed-citizen not use his rifle for fear there may be someone he can't see behind his target, and instead transition to his pistol?

PENETRATION IS SIMILAR WITH SUITABLE LOAD. LE DOES NOT USE ARMOR PENETRATING ROUNDS AND (IMHO) NEITHER SHOULD ARMED CITIZENS.

 

[PDL]

Very interesting discussion so far.

The situation I'm stuck in here in NJ precludes just about anything but hardball.

Recently, I understand there are a couple of expanding rounds that don't count as HPs cause they're plastic filled. The ammo dealers don't seem to be aware of that fact. So there's not much availabliity, if any. Since there are only 3, they're scarce online as well.

What's the best solution when using handguns in this environment?

 

[Massad Ayoob]

Pete, a friend in LE who recently checked with NJ Attorney General's Office was told that Federal Expanding Full Metal Jacket and Cor-Bon Pow'rBall were approved. I don't know if they've explored Hornady Critical Defense yet or not.

It's my understanding that hollow points are cool in NJ for home and store defense and recreational use, just not for street carry. I'll defer to those on the ground in NJ who are more up to date on that than I.

If it was unavailable, and you're one of the few licensed to carry in NJ and you had to use ball in self-defense and there was a tragic overpenetration, you could use the defense that "the law told me I had to."

But it would still be worth hunting high and low for NJ-compliant expanding bullets to prevent it going that far, IMHO.

Cordially,
Mas

 

[cmort666]

I've been told that .223 and 5.56 partitioned rounds fired from typical law enforcement patrol rifles penetrate LESS than a typical .40 hollowpoint.

It is typical for non-expanding rifle bullets to turn base first, breaking at the cannelure (if any) or fragmenting entirely, when fired into the human body.

Dr. Fackler pointed this out when he humiliated SIPRI over their sham condemnation of M193 ball. He showed that Swedish 7.62x51mm ball exhibited EXACTLY the same behavior.

 

[sheriffoconee]

My overriding concern is that the collective "we" are making people so afraid of being sued we are scaring them to inaction. Our profession has done the same thing. We have drilled the word "liability" into our young deputies heads to the point where they are convinced that almost every use of force encounter is going to result in successful litigation.
Many names on the wall in Washington are there now because officers didn't use force, or deadly force, soon enough in an encounter.
The other point we need to stress is that being sued isn't the end of the earth. It is expensive, but the alternatives are MUCH worse.
Getting out of a deadly force encounter without litigation is VERY unlikely.
Shooting someone that you weren't trying to shoot isn't going to end without spending time and money in a lawyers office and courtroom.
Plaintiff's lawyers make money NOT from going to court and winning 6 and 7 figure jury awards. Day to day living for the Plaintiff's bar is the understanding that MOST cases they file against people, corporations, governments, etc, are either going to be dismissed quickly, or settle quickly.
As I have said, I don't have any experience practicing law, but I have had it practiced on me a number of times.

 

[Massad Ayoob]

Agreed, and I think SheriffOconee and I have the same objective, even if we sometimes look as if we're coming toward it from two different angles.

The person who hesitates when fighting for his life is indeed lost. Therefore the fighter has to know how to handle the worst possible aftermath so he or she won't hesitate when that time comes. Knowing how to mitigate liability and give unscrupulous lawyers no hooks on which to hang unmeritorious cases falls under that category.

The better people understand the aftermath, the better they can control it. The better they can control it, the less they'll fear it. Much of that control is established planning beforehand, to eliminate as much as possible things like endangerment of bystanders, and to be able to show that this concern was taken into consideration beforehand in good faith.

 

[BUFF]

People need to keep in mind that even expanding rounds, with good reputations for expanding as desired, often penetrate a human torso fully. My department uses Federal handgun ammo, initially Hydro-Shocks when we went to semiautomatics (1991) and upgrading as new bullet development hit the market. Currently, we carry Federal Tactical Bonded Plus-P in .45 and 9mm and standard velocity in .40 S&W (there is no Plus-P in .40).

Even with good torso hits and bullets that expand well, we still get lots of bullets that exit. I fired 4 shots (.45 ACP Plus-P 230 gr. jhp) into 2 perps in one encounter. 2 of the 4 exitted, even though the bullets all expanded to greater than .75" diameter. One, a mid-chest, front-to-back through and through shot, struck a masonry wall behind the shootee with enough force to leave a good divot. It would no doubt have injured or killed anyone standing behind the perp.

Pick good, appropriate ammunition, train, be careful and hope for the best. Due diligence is all we can do.

 

[cmort666]

Getting out of a deadly force encounter without litigation is VERY unlikely.

Actually, in Ohio as long as the ONLY person I shoot is/are my assailant(s) and it's ruled justifiable, it's a certainty.

Here we've decided that having failed in your attempt to unlawfully harm someone, you shouldn't be permitted to profit from your own incompetence.

 

[cshoff]

I recommend to my students that the minimize their liability on everything over which they have control BEFORE any incident occurs; that would include careful consideration on things like equipment selection, caliber selection, ammunition selection, modifications to carry weapons, training, regular practice, etc.

Once the bad guy confronts you with a deadly threat, you won't have the time or the presence of mind to worry about whether you've chosen the right ammunition or whether or not your "shade tree mechanic" trigger job is going to cause you undue legal grief down the road. By minimizing legal, tactical, and moral liabilities BEFORE the fact, we should be better able to mentally and physically prepare for the act of actually winning the fight when the SHTF.

 

[sheriffoconee]

"and it's ruled justifiable"
which doesn't ALWAYS come without a cost, lawyers,missed work, having your rights read to you, etc.....

 

[cmort666]

"and it's ruled justifiable"
which doesn't ALWAYS come without a cost, lawyers,missed work, having your rights read to you, etc.....

I read the previous statement to which I responded as relating specifically to civil litigation.

You can be stopped or arrested for anything or nothing at all. I've seen it. That's not going to deter me from defending myself from an unlawful deadly force attack. Of course I've actually seen people say that that IS a reason to meekly submit to a deadly force attack. But then I've seen people say a LOT of stupid things in 52 years.

I'm fortunate enough to live in a state that:

1. Generally views clear cut acts of self-defense favorably.
2. Views violent criminal acts and post-facto attempts to profit from their failure VERY negatively.

That's why I'm glad I moved out of Illinois over twenty years ago and will never live there or any place like it again.

I keep to myself and avoid a "fast" crowd. Choosing your friends and acquaintances carefully will obviate much of the need to use deadly force in self-defense and removes most of the ambiguity when the need does arise.

 

[GHG]

Use a frangible round. The only way you will get collateral damage is if you miss your intended target. They offer a wide assortment of frangible rounds these days.