reloads and the law

[FTG-05]

My mom never said that.

Well... that partially explains you.

 

[Massad Ayoob]

Mas, as a member of Mr. Bias' defense team, I wouldn't even ask you if he were guilty or not, the same goes for his attorneys or even the prosecution. Unfortunately, the same goes for opinions or information about the case because the result will be the same as the trial, there are two sides to every story.

Actually, there were three sides to this one: the defense case, which was the same from beginning to end; the state's original case of cold-blooded murder; and the state's theory in the final case of manslaughter due to negligent discharge. It's no secret that when the prosecution completely changes its theory of the case, it casts some doubts on the validity of the prosecution's case in its entirety.

Over the years, I've turned down more cases than I've taken. I took this one after review of the evidence showed virtually everything was consistent with Bias' account, except that there should have been GSR on the body if she was shot with a 158 grain Federal +P from the distance involved. Testing with replication of Bias' very mild handloads showed it was entirely possible that no GSR would be present from that distance. Unfortunately, the defense was not allowed to introduce that evidence, and I still think it's more likely than not that an innocent man was convicted.

Most clients of most criminal defense lawyers are guilty, and when they are convicted and the lawyers are asked for comments, they generally give boiler-plate replies like "the jury has spoken and we have to respect their verdict." In this case, both of Bias' lawyers seemed convinced that they were speaking for the rare, wrongly accused innocent man, and I respect that.

But, back to the topic at hand: Don't feel bad about not finding a case where the handloader's data was accepted as evidence. I haven't either. That's the point. I don't want to see anybody else end up where Bias did, and that trap remains open for any handloader who has to fire in self-defense under circumstances where, as is common, gunshot residue becomes a critical determinant of actual distance and whether the shooter is telling the truth or not. Remember, the rules of evidence will be the same in a self-defense shooting as they were in the Bias case.

 

[Jc85]

I found a really nice outdoor range but its close to 40 minutes away from my house, I wounder if its worth getting the membership. I wounder if anyone else had this predicament

 

[mod29]

Mas has been on several gun forums, providing his experience free of charge, receiving little or no thanks. I, for one, would like to say thank you! His credentials speak volumes.

He has been very consistent in his recommendation to carry factory ammunition in your defensive weapons. He has stated over and over again that it can potentially complicate your defense if you have used reloaded ammunition in defensive shooting.

We're of course free to listen to experienced advice, or ignore it.

Me, I carry factory Winchester or Remington ammunition in my carry weapons.

Thanks again, Mas, for your time and suggestions. For many of us, your words are the extent of our knowledge of the inner workings of a court room, especially in self-defense cases.

-Jim

 

[Jellybean]

Mas, after I wrote the "two sides to every story" I thought it over and remembered that in a court of law there are three sides to every story. The prosecutions, the defenses and the truth.

The prosecution didn't change their theory entirely, from what I can tell. They claimed murder from start to finish, the only thing that changed was intent. The evidence for motive was never revealed in anything that I could see so it's hard to tell what happened. From what I have read I would take a guess that that was the reason the first murder conviction was overturned, the jury didn't understand the whole charge and felt one murder charge was the same as another. His final conviction was appealed and lost, that means a lot.

I've been reloading for 30+ years and have never seen a load that could kill someone not leave some form of GSR at suicide distances. That was probably the first red flag that went up and that would also explain why the defense tried to attack it. I'm sure there was a whole lot more evidence involved that we weren't priviledged to hear, except maybe the part about him admitting to shooting her and that he was very intoxicated. If the lack of GSR was the only thing that got him convicted, as his attorney told you, it should have been easy for the attorney to introduce reasonable doubt. Since it was a murder trial and the burden of proof is on the state, and all the state had for evidence was that there was no GSR on her hands or body, I doubt it would have even been tried.

Of all your vast files, is there no other case where an unquestionably innocent person was found guilty by the lack of exemplar evidence? How many cases have you had where any party was known to have used handloads and what were the particulars of those cases? It may just be that there are no cases where a court accepted what was in a handloaded round because there was never a case where a handloaded round was questioned. I'm going to go out on a limb here and say that Bias would have been found guilty even if the firearm were loaded with a factory round, so what he used wasn't a factor and that was why it wasn't that big a deal.

I had a college professor that gave a great talk on scientific theories and how and why some people try to deceive the scientific community. During this talk he said that earthworms came from rocks. To prove it he walked out into his yard and put a rock where there were no earthworms, then several weeks later he lifted the rock and there were several earthworms there. The lesson to be learned was anyone can make a theory, but look at the proof with great scrutiny or you may be fooled.

I understand what you are saying, but so far it's still just a theory.

 

[kraigwy]

But there are two glaring problems. First, with handloads you don't have the benefit of a factory backing you with experts to testify about ammunition behavior and that leaves the door open for a prosecutor or an attorney in a civil case to portray you as some sort of vigilante cowboy who is acting recklessly and needlessly endangering the public.

Can't you say the same thing for Magnums, Hollow Points, Police Ammo, FMJ, etc.

Every case I've seen where "reloads" come into play has so many other problems it wouldn't matter what ammo you used. Never heard of a case where reloads alone was a desiding factor.

I think you're best bet is carrying what you practice with. Lets look at it this way, I've carried the same bullet (Lyman 358477, LSWC), in a Model 28 when I was in LE, I now carry the same bullet in my 642 now that I'm retired, I fired 100s of thousands of rounds using that bullet, practice, competition.

I would feel much more comfortable in trying to justify that reloaded bullet then some store bought ammo I fired a few rounds to see what it does, the loaded the defence revolver.

I've been in the game a long time, (in court, LE Firearms Instructor, U_CSI, etc) I have no doubt I wouldn't have any problem in court if it's a ligit shooting.

My contention is, and the recommendation I make is: Shooting, regardless of the game is 90% plus mental. Your head has to be in the game whether its SD, Competition, or just plain practice. If its not you shooting WILL BE AFFECTED. The same thing is involved in Self Defence. Your head has to be in the game. If at the instent you have to worry about "what effect will my ammo have in court" while your making a life or death situation, you got problems. "What Ifs" will get you killed.

If you feel comfortable and justified carrying reloads, do it, if you don't don't.

The problem will come up in civil cases more then criminal, simply because its not illegal to carry and use reloads. But Lawyers like to muddy the waters, its their job, they throw in doubt to the jury ("reasonable doubt" is differant in Criminal & Civil Cases". That muddying of the waters will come up regardless whether you are using Reloads, Hollow points (dumm dumm bulltets) Magnum, FMJs,(remember the movie) or Police ammo, or ammo you carry but don't shoot much because its too expensive.

The answer is like Wyoming, (and other states) where if you car involved in a ligit SD case, you can not be sued in civil court.

If your state does not have such a law, get on the ball and push to get the legislation introduced and passed.

 

[Massad Ayoob]

Mas, after I wrote the "two sides to every story" I thought it over and remembered that in a court of law there are three sides to every story. The prosecutions, the defenses and the truth.

The prosecution didn't change their theory entirely, from what I can tell. They claimed murder from start to finish, the only thing that changed was intent. The evidence for motive was never revealed in anything that I could see so it's hard to tell what happened. From what I have read I would take a guess that that was the reason the first murder conviction was overturned, the jury didn't understand the whole charge and felt one murder charge was the same as another. His final conviction was appealed and lost, that means a lot.

I've been reloading for 30+ years and have never seen a load that could kill someone not leave some form of GSR at suicide distances.

Jellybean, I totally agree with you on one point, respectfully disagree on some others.

We agree that Bias had no motive to murder his wife. On the other hand, she had a history of attempting suicide and of mental illness.

The reason the single argument of the GSR carried so much weight is that juries have always tended to see forensic evidence as hard science that is more reliable than testimony. With no testing in to show that Bias' loads would not have left GSR at the distance in question, they apparently believed that the crime lab (which tested with much more powerful ammo) had proven him a liar. Bias' loads were so weak that the death bullet barely made it into her brain, not something an experienced shooter/reloader would use on someone he INTENDED to kill.

Between the first trial and the third, the prosecution did in fact make a huge sea change, from a theory of cold-blooded murder to a theory of accidental discharge. You said, "The only thing that changed was intent." Malicious intent is a key ingredient in a murder charge.

Finally, while you may be right in some cases about three stories in the courtroom (the prosecution's, the defense's,and the truth), the fact is that in a huge number of cases, the prosecution DOES have the truth and ends up convicting a guilty person who deserves it. This was one of the rare but real cases, in my opinion, where it was the defendant who was telling the truth...but because his handloads weren't allowed as evidence, couldn't prove it.

On the other hand, I've seen lots of cases where GSR testing of factory ammo proved in court the good guy was telling the truth about the shooting and the bad guy was lying. That's something I want to have on my side, and it's why I use factory ammo for defensive purposes.

 

[parabarbarian]

I use commercial ammo these days for my SD guns so I don't really have a dog in this fight. I did find it interesting that the judge refused to allow the potentially exculpatory testimony on the reloads in the Bias case. In truth, I found it a little scary but consistent with my own observations that -- at least some -- judges don't really like or trust juries and may feel a need to guide them to the "correct" verdict.

 

[John Ross]

Serious question for Massad Ayoob: What, in your opinion (and for the courtroom purposes being discussed here) constitutes "factory ammo"? Specifically, what about smaller manufacturers such as MagSafe, Black Hills, etc.?

Do you think that the only (potential) problem is when the shooter HIMSELF loaded the ammo used in the shooting? As long as he got it from some entity that has a federal ammunition manufacturer's license, is this issue off the table?

 

[Rule3]

It would be very "interesting" to hear a Prosecutor cite Buffalo Bores description of their ammo.

Picked 380 at random:

380 Auto +P Pistol & Handgun Ammunition




Made it to page #10

 

[Massad Ayoob]

Serious question for Massad Ayoob: What, in your opinion (and for the courtroom purposes being discussed here) constitutes "factory ammo"? Specifically, what about smaller manufacturers such as MagSafe, Black Hills, etc.?

Do you think that the only (potential) problem is when the shooter HIMSELF loaded the ammo used in the shooting? As long as he got it from some entity that has a federal ammunition manufacturer's license, is this issue off the table?

The usual protocol is to determine the lot number of the ammo if possible, and if the lab doesn't have some in inventory, order it from the ammo maker. The major makers keep "exemplars" of every lot they produce. This is partly for quality control review, partly to cover their butts in case a customer says ammo from that lot blew up their gun and sues them, and partly in case of forensic requests such as we're talking about.

The customer needs to check with the small boutique makers to see if they're doing the same thing. If not, I'd shop elsewhere.

Over the years, the "common custom and practice" that has evolved is that the court assumes that ammo manufactured by a source uninvolved in the case is the same stuff. If the ammo was handloaded by the defendant, the problem is that as in the Bias case, opposing counsel can successfully argue that the defendant had the ability and the motive to "tweak" the ammunition to throw off investigators, and that his records and/or testimony as to what was in the loads cannot be trusted.

If the ammo was handloaded by a friend or brother in law, opposing counsel can argue that they're lying for the defendant.

Of course, none of that comes up if factory ammo exemplars are available for testing, and the same factory ammo was used in the shooting.

 

[P&R Fan]

Mas, I think most of us on here are only thinking about private citizens use of handloads. I recall a number of articles you've written over the years where you brought up cases where even LEOs have been excoriated for using them. If I recall you talked about it last March in Hiawatha Iowa at your MAG 20 class that I was honored to attend.
Mention some of those cases if you would.
Jim

 

[Massad Ayoob]

Jim, I may have mentioned NH v. James Kennedy. Jim was a police sergeant and firearms instructor charged criminally with agg. assault in the wake of an on-duty shooting. The prosecution made a huge deal about the fact that his duty weapon was loaded with .45 ACP handloads. "Why weren't regular bullets deadly enough for you," etc. His department at the time did not forbid handloads. Jim Cirillo testified brilliantly as an expert witness for him, and he was acquitted, though the case destroyed what had been a promising law enforcement career. The handloads, incidentally, were duplicates of the 200-grain Speer JHP police load, which was expensive and hard to get at the time...and which, IIRC, delivered less energy than the .357 Magnum carry loads of the detectives who investigated the shooting.

The "regular bullets weren't deadly enough for you" argument also comes up with hollow points. Both arguments can be defeated. I think factory hollow points give enough better performance than non-expanding bullets to make that argument worth fighting in court. Handloaded ones, not so much, since there are more arguments to fight and no provable performance gain over factory HP. But this argument does not concern me nearly as much as the inability to replicate ammo for GSR testing to show distance between the two parties, which often becomes an issue in court, and can be a cornerstone for determining who seems to be telling the truth, as it was in the Bias case.

 

[blujax01]

What I'm hearing is that we would be advised not use handloads for SD.
How often does this come up? How does the knowledge get revealed? I mean, there's what's left of several 158 grain pieces of lead in the BG and there's Federal or Winchester or whatever cases left in my revolver. Do the forensic guys in Columbus or Paducah or Omaha or wherever really look to see if the brand of lead matches the brand of case and that these match up to factory lab retains? In the above case, how did they know it wasn't Speer 200 JHP to begin with? I figure unless I say "Man oh man, that homebrew do some rightful damage, eh?" no one is the wiser.

 

[Massad Ayoob]

blujax, it's routine for Firearms & Toolmark Examiners to go over the gun and ammo with a fine-toothed comb after a shooting. It's part of the evidence, after all. As others have noted, incongruity between casing and primer or any of several other factors can tip off the evidence examiners.

In a self-defense shooting, which tends to be an affirmative defense, it's normally wise for the defendant to take the witness stand. (Who else can really tell the truth of what happened, or explain why you the shooter did what you did?) Expect the question of ammo to come up. You'll have to tell the truth: I'm sure John Ross in this thread (if he's the John Ross I think he is) or any of the several other attorneys who participate at S-W Forum will tell you that it's the kiss of death to lie on a witness stand.

Gunshot residue testing to determine distance is routine, and becomes an issue with a frequency that surprises some, because so many self-defense shootings are at literally "powder burning distance." It's logical to expect it to come up, and be prepared for it.

 

[blujax01]

I am not suggesting anyone lie. I was just curious how the issue would come up if the shooter didn't mention it. The answer I glean from your response is that under examination, one might be asked "where did the ammo come from?" in which case it is revealed that the ammunition is hand loaded. Thank you for lending your considerable expertise to this conversation.

 

[Jellybean]

It's funny, they make you swear to tell the truth and nothing but the truth and then won't believe you if you tell them what you used for a handload. Even if your freedom, and maybe even life, depends on it.

Jellybean, I totally agree with you on one point, respectfully disagree on some others.

We agree that Bias had no motive to murder his wife. On the other hand, she had a history of attempting suicide and of mental illness.

The reason the single argument of the GSR carried so much weight is that juries have always tended to see forensic evidence as hard science that is more reliable than testimony. With no testing in to show that Bias' loads would not have left GSR at the distance in question, they apparently believed that the crime lab (which tested with much more powerful ammo) had proven him a liar. Bias' loads were so weak that the death bullet barely made it into her brain, not something an experienced shooter/reloader would use on someone he INTENDED to kill.

Between the first trial and the third, the prosecution did in fact make a huge sea change, from a theory of cold-blooded murder to a theory of accidental discharge. You said, "The only thing that changed was intent." Malicious intent is a key ingredient in a murder charge.

Finally, while you may be right in some cases about three stories in the courtroom (the prosecution's, the defense's,and the truth), the fact is that in a huge number of cases, the prosecution DOES have the truth and ends up convicting a guilty person who deserves it. This was one of the rare but real cases, in my opinion, where it was the defendant who was telling the truth...but because his handloads weren't allowed as evidence, couldn't prove it.

On the other hand, I've seen lots of cases where GSR testing of factory ammo proved in court the good guy was telling the truth about the shooting and the bad guy was lying. That's something I want to have on my side, and it's why I use factory ammo for defensive purposes.

Mas, I don't know what motive Bias would have had, if any, as my source of information is quite lacking, but that's the internet for you.

The information I had says that the only difference between the first two and third trials was his culpability, which sounds like everything was exactly the same except that maybe when he pointed the pistol at her and pulled the trigger instead of intending to shoot her he was only intending to scare her or maybe even, since it was at the back of her head he was only acting out what he wanted to do and really believed that the pistol was empty or that the hammer would fall on an empty chamber.

Even if the prosecution did make a big change in their "story" there could have been a reason for it, such as new evidence that was uncovered between trials, looking at the old evidence in a different manner while examining new motives, or just trying to keep the defense from arguing double jeopardy. While some evidence may be unwavering others may be quite vague and not so easy to put in rigid terms. But even though all the words in their story may have changed, the elements could still be satisfied with the same answers.

From all of our previous discussions of this case, and the information from you alone, it seems he could have been found guilty of premeditated murder just by placing a loaded firearm by her bedside, after two previous suicide attempts, and loading it with special ammunition to help her with her sensitivity to recoil.

But even with the given facts that the state had absolutely no evidence except the lack of GSR on the deceased, and then they wouldn't allow any evidence that could possibly show the accused was innocent, if it existed, his conviction should have been overturned on appeal. Also, while the ammunition he loaded would be destroyed if shot for testing, it could be completely disassembled, examined and put right back together as if nothing had ever happened to it. I can see such incompetence and ignorance happening in one court, but two is pretty rare. And if that was the case, then my opinion of selecting the proper attorney is more important then choosing factory ammo sounds more reasonable.

Besides, most people that handload ammunition for self defense load it pretty close to factory specs so I believe if it was claimed by the state to be some factory round it won't make a lot of difference. Different types of powder do give varying results, but there are factors that can affect GSR "distance" results and they are usually given as estimates instead of written in stone figures. Also, labs do examine ammunition used in shootings very closely if there is any suspicion and if they find the ammunition used wasn't the ammunition tested and lie about it, they are in just as much trouble as the defendant, and may suffer more serious consequences.

This has been a nice diversion from beating the horses from the other same old questions to death, but we're pretty much back at the same old place we've always ended. Like many theories, (such as evolution), this one will probably never be proven and will only lead to an endless debate, but at least jack won't have to learn how to do a search just yet.

 

[Massad Ayoob]

It's funny, they make you swear to tell the truth and nothing but the truth and then won't believe you if you tell them what you used for a handload. Even if your freedom, and maybe even life, depends on it.



Mas, I don't know what motive Bias would have had, if any, as my source of information is quite lacking, but that's the internet for you.

The information I had says that the only difference between the first two and third trials was his culpability, which sounds like everything was exactly the same except that maybe when he pointed the pistol at her and pulled the trigger instead of intending to shoot her he was only intending to scare her or maybe even, since it was at the back of her head he was only acting out what he wanted to do and really believed that the pistol was empty or that the hammer would fall on an empty chamber.

Even if the prosecution did make a big change in their "story" there could have been a reason for it, such as new evidence that was uncovered between trials, looking at the old evidence in a different manner while examining new motives, or just trying to keep the defense from arguing double jeopardy. While some evidence may be unwavering others may be quite vague and not so easy to put in rigid terms. But even though all the words in their story may have changed, the elements could still be satisfied with the same answers.

From all of our previous discussions of this case, and the information from you alone, it seems he could have been found guilty of premeditated murder just by placing a loaded firearm by her bedside, after two previous suicide attempts, and loading it with special ammunition to help her with her sensitivity to recoil.

But even with the given facts that the state had absolutely no evidence except the lack of GSR on the deceased, and then they wouldn't allow any evidence that could possibly show the accused was innocent, if it existed, his conviction should have been overturned on appeal. Also, while the ammunition he loaded would be destroyed if shot for testing, it could be completely disassembled, examined and put right back together as if nothing had ever happened to it. I can see such incompetence and ignorance happening in one court, but two is pretty rare. And if that was the case, then my opinion of selecting the proper attorney is more important then choosing factory ammo sounds more reasonable.

Besides, most people that handload ammunition for self defense load it pretty close to factory specs so I believe if it was claimed by the state to be some factory round it won't make a lot of difference. Different types of powder do give varying results, but there are factors that can affect GSR "distance" results and they are usually given as estimates instead of written in stone figures. Also, labs do examine ammunition used in shootings very closely if there is any suspicion and if they find the ammunition used wasn't the ammunition tested and lie about it, they are in just as much trouble as the defendant, and may suffer more serious consequences.

This has been a nice diversion from beating the horses from the other same old questions to death, but we're pretty much back at the same old place we've always ended. Like many theories, (such as evolution), this one will probably never be proven and will only lead to an endless debate, but at least jack won't have to learn how to do a search just yet.

Jellybean, I hear ya. Responding to your points in order:

1. I agree on your first point. When we are accused, we become suspect. We can't expect our word to be taken for anything. The burden of proof will be upon us, like it or not, to show that we're telling the truth.

2. Everything I know, including discussions with the attorneys who handled the case, indicates there was no new evidence between trials. The state simply changed their "theory" and proceeded with their trump card, the ballistics evidence.

3. Y'know, I almost didn't take the case for the reason you described: I thought leaving a loaded gun in the bedroom of a person who had been suicidal verged on sufficient negligence to sustain a manslaughter conviction. But the more I thought about it, the more I realized it's human nature. When someone we love has weirded out from alcohol, drugs, or in this case mental illness, when they appear to have returned to normal we're so grateful we want to believe they're recovered for good. I think this is what was going on with Danny Bias when, after being released from mental health institutionalization and home for a while, his wife told him she'd feel safer if they had the gun back in the bedroom.

Human nature: we believe what we want to believe as opposed to unpleasant realities. How many times have we seen that just on internet threads...including this one?

4. I would have been all for disassembling the remaining cartridges for analysis. However, another argument by the prosecutor remained: "Your honor, since HE loaded the cartridges, how do we know the FIRED one has the same characteristics as the ones that remained unfired in the cylinder?"

The sad fact is, the presumption of innocence is sometimes an illusion. Hell, we're seeing it here. A jury made up of S-W Forum members who participate in the Reloading section would theoretically have been a dream jury for Bias...yet look how many were ready, willing, and able to throw him under the bus and automatically assume him guilty.

Jelly, I too found it an interesting discussion. You deserve a lot of credit for keeping it civil, and I thank you for that.

Cordially,
Mas

 

[John Ross]

You'll have to tell the truth: I'm sure John Ross in this thread (if he's the John Ross I think he is) or any of the several other attorneys who participate at S-W Forum will tell you that it's the kiss of death to lie on a witness stand.

I'm Tim Mullin's friend, and have spoken to you several times on the phone, but have never had the pleasure of meeting you in person, unfortunately.

You seemed to give me a law degree in your post, and that is something I have not earned. I am not an attorney, although I am sometimes called in as a consultant for the defense here in St. Louis when local trial lawyers get cases involving gun issues, particularly Title II stuff.

 

[Forrest r]

Years ago I was befriended by several different law enforcement employees that I met at bowling pin shoots & was given advice from sheriff's deputies & police officers from different agencies/towns at different times. They all pretty much said the same thing about what they look for & what will be determining factors on how they proceed.

Make no mistake about it; you're a suspect until proven otherwise.
Never use reloads or any ammo that is known to be excessive in the damage/carnage it creates.
The best ammo to use is any factory ammo that says target on the box & only use full boxes. An example of full boxes, don't buy a box of ammo & shoot 44 rounds out of it & use the last 6 in a revolver for sd. Buy a box of ammo & load 6 in the revolver & have a box with 44 shells left in it so they can clearly see what you were using.
Never discuss what happened without your attorney present.

If you ever have to shoot someone:
Call 911 & let them know there's been a shooting. Touch nothing, do not unload the weapon, put the safety on & set the weapon down away from everyone in plain view. Get the rest of the full box of ammo & set it next to the weapon you used. When the law gets there simply state that you feared for you & your families lives. You are extremely shaken up over this & think its best that you talk to an attorney before answering any questions because you're afraid of being sued.

They couldn't stress enough that perception is everything & that I should use that to my advantage. Their advice influenced my choices in what I use for SD to this day.