Think about it, friends.

[flop-shank]

Thank you for bringing this up, Lobo. There are things in your original post I intend to look into.

 

[BarbC]

Lobo, I appreciate your intelligent and wise posting. Thank you.

 

[LoboGunLeather]

Thank you, BarbC. Very kind of you.

 

[elcruisr]

One thing I will add. I talked with two criminal defense lawyers in my area about this subject. My concern, originally, was because I have a handicapped wife to defend as well as myself.

More than worth it folks. I got the full story on which way the local judges lean, prosecutors lean, police departments lean. What was black, white, and gray. If you carry and have not talked to a lawyer, do it. Never assume you know and never take an instructors, policemans, good buddy at the ranges word.

 

[MTKTM]

Unfortunately, it seems as though society in this country is rapidly approaching a point where there will simply not be a death without a lawsuit. Someone gets drunk and drives their car off the road and into a tree, a lawsuit is filed against the bartender and the state for designing the highway improperly. An 86 year-old man dies of natural causes, and the family sues the doctor or the hospital because they missed the tumor on his pancreas.

So.....when there is a shooting, a self-defense situation, you bet the law is going to come crashing down around the shooter's ears. Nothing surprising here. Good tips though.

 

[boomstick]

The prosecutor showed large pictures of the 10mm round in court. It was a major part of the case.

Any others? There are many. From ammo type and home loads, to accusations of revolvers being fired in single action. Anything presented in a court of law can turn out to be a "major part of the case." It shouldn't be discounted when your freedom and finances can be at risk.

whw


whw

Of course he did. It would have been stupid of him not to make the guy look like he was a "killer". That's his job. The guy shot an unarmed man three times and the unarmed guy never laid a hand on him. I've always said, you can't shoot everyone who punches you in the nose. Yeah I know, "I was in fear for my life". Good luck with that when you shoot some unarmed guy three times with ANY gun.

We'll just have to agree to disagree on this one. That guy was convicted for shooting an unarmed man three times, and because the judge wouldn't admit testimony or evidence to make the victim look as bad as the prosecutor made the defendant look. That guy was convicted because it was an unjustified shooting.

Can you cite any where someone was charged with a an otherwise justified shooting because of the type of gun or ammo he used?

 

[Dusty Miller]

Originally posted by Erich:

Massad Ayoob's new book on CCW

+1.

Mine came the mail today.

 

[Dusty Miller]

Originally posted by boomstick: The guy shot an unarmed man three times and the unarmed guy never laid a hand on him.

It was my understanding that he charged at Fish with a large club in his hand. Was I misinformed?

 

[Vanilla Gorilla]

Originally posted by Dusty Miller:

Originally posted by boomstick: The guy shot an unarmed man three times and the unarmed guy never laid a hand on him.

It was my understanding that he charged at Fish with a large club in his hand. Was I misinformed?

He had a screwdriver, I believe in his pocket. It was not in his hand. I also believe the information was not provided to the jury since Mr. Fish himself had no way of knowing the guy was armed, either.

 

[whw]

Originally posted by boomstick:


whw

Can you cite any where someone was charged with a an otherwise justified shooting because of the type of gun or ammo he used?[/QUOTE]

Exclusively? No. As a contributing factor, yes. The jurors in the Fish case did state that the the type of ammo had an impact on their decision to convict.

As for being justified, I have to say that two attack dogs and a 270 lb. angry man that is 15 years my junior, and also announced his intention to kill me, certainly falls outside the "punched in the nose" category.

This case has certainly made me consider the hierarchy of weapons. Pepper spray, stun guns, etc...

I enjoyed reading everyone's thoughts on this important issue.

whw

 

[boomstick]

and also announced his intention to kill me, certainly falls outside the "punched in the nose" category.

Who said he threatened to kill Fish? And how many dog bites did he have on him? And can you cite an article where the a representative of the jury said his bullet selection contributed to his conviction? Would he have been convicted without that particular bullet choice? Betcha he would have.

Folks ought to be trained in unarmed self-defense as much or more as they are in armed self-defense. Either that or they should be prepared to defend themselves against a murder charge if they need to shoot an unarmed man three times with a 10mm to stop him before he even lays a hand on them. Same goes for cops and non-cops alike.

Throughout my years as a cop there was one saying heard frequently on these subjects: It is far better to be judged by twelve than to be carried by six.

A hackneyed cliche to be sure and I've heard that one more than once from guys trying to rationalize a questionable or BAD shooting. And I don't doubt that in the quiet honesty and hindsight of a state or federal prison cell while doing 12-20 for second degree murder, there may be more than a few people who would have preferred to have taken a little more risk of being carried by 6 than tried by 12. It's all about risk vs. reward. I'd much prefer use my experience, training and intuition to do what I can to avoid both.

Shooting an unarmed guy 3 times with a ANY gun is a good way to tilt the scales in favor of prison. Cop or no cop, if you're going to carry a gun and use it to kill unarmed people by shooting them three times, you'd best be able to show a reasonable detective, prosecutor, judge and jury that you needed to do it. You guys who think you can do that, fire away. Me? If I shoot an unarmed guy I'm going to at least be able to describe why I thought he was armed and about to kill me or why I needed to kill an UNARMED guy before he even touched me or took a swing at me. Fish wasn't able to pull it off.

 

[whw]

Originally posted by boomstick:

and also announced his intention to kill me, certainly falls outside the "punched in the nose" category.

Who said he threatened to kill Fish? And how many dog bites did he have on him? And can you cite an article where the a representative of the jury said his bullet selection contributed to his conviction? Would he have been convicted without that particular bullet choice? Betcha he would have.

Look for a podcast called Proarms. They have a segment on the Fish case. One of the investigators walks you through the details. It is very interesting. The warning shots Mr. Fish fired as the dogs tried to attack saved him from the being bitten.

Folks ought to be trained in unarmed self-defense as much or more as they are in armed self-defense.

I think Mr. Fish was 57 at the time. I know my martial arts skills have degraded over the years due to arthritis and old injuries. Like it or not, this formula always applies; The older I get, the larger the number of people that can kick my butt.

Hopefully, none of us will have to encounter the set of circumstances that Mr. Fish encountered that day. Maybe he could have used pepper spray first?
Only thing for certain is that a lot of lives were ruined in a short period of time. That is usually the case when any gun is discharged in a self defense situation.

whw

 

[boomstick]

Look for a podcast called Proarms. They have a segment on the Fish case. One of the investigators walks you through the details. It is very interesting. The warning shots Mr. Fish fired as the dogs tried to attack saved him from the being bitten.

I'll take your word for it. Who said the guy attacked Fish, and who said the dogs attacked him and would have chewed on him but for the warning shots?

As far as self defense, if he's healthy enough to hike at 57, I bet he was healthy enough to lock his gun into his waist with his gun hand and at least make SOME contact with the guy before he shot him. But like I said before, if you want to shoot a guy for a threatened unarmed assault, go ahead, but be prepared for what Fish went through. I've never in my life considered shooting someone who was not armed, not going for what I thought was a gun, or not actively engaged in taking my gun away from me.

 

[tanksoldier]

Originally posted by LoboGunLeather:
Not only do I carry a pistol, I also carry a cell phone with my lawyer's number on speed-dial. As I tried to point out, I not only wish to survive PHYSICALLY, I wish to survice mentally and financially.

Your point is valid... up to a point.

The problem with it, and with Massad Ayoob, is that too much focuses on AFTER the fight... before you've even survived the shooting. If you die there will be no lawsuits, homes bought for your kids or anything else.

Live thru the shooting part THEN worry about the rest.

I'm wearing a Colt Series 70 loaded with Federal Classic 230gr JHPs as I write this. Any lawyer worth his salt can make an issue out of anything (.45 instead of 9mm? Did you WANT to make sure you killed somebody? : 9mm? Isn't that the same caliber the MILITARY uses?).

Originally posted by boomstick:
I've never in my life considered shooting someone who was not armed, not going for what I thought was a gun, or not actively engaged in taking my gun away from me.

When you carry a gun every fight you are in is a gunfight.

 

[flop-shank]

Originally posted by tanksoldier:

Originally posted by boomstick:
I've never in my life considered shooting someone who was not armed, not going for what I thought was a gun, or not actively engaged in taking my gun away from me.

When you carry a gun every fight you are in is a gunfight.

Sometimes. I'm 5'7"/200 lbs., a guy Kuenzli's size has a huge size advantage over me. He's unarmed until he overpowers me and takes my weapon. It's highly likely that my empty handed skills won't carry the day, especially when I don't know what his are. He's getting shot. It's called disparity of force, and justifies shooting an unarmed aggressor. A crazy, unarmed 80 year old man who weighed 120 lbs. would not be justified because I could overpower him easily.

 

[boomstick]

I thought Fish was about 5'10 and 200 pounds. That's a huge advantage over you?

If you're ever charged, it might be a good idea to take the stand in your own defense, unlike Fish. I think the fact that the defendant didn't take the stand to tell the jury his side of the story had more to do with his conviction than the type of bullet he shot the guy with. I think he was afraid and he over reacted.

 

[BarbC]

I think the concern about legal liability is the back-of-the-mind brake that will keep some people from escalating a verbal exchange into a shoot-out, or avoid other such scenarios where fault-doubt hangs in the air.

No matter what the initial provocation of the shooting, there will be an inquisition. You need to have full justification behind you to avoid criminal and civil penalties sticking to you. You clearly better have had no alternative but to take a life in order to defend yours. You don't want to be portrayed as the aggressor or the escalator in a shooting situation, or even as a fearful over-reactionary. It's the "reasonable man" test, in conjunction with the actual laws of your state.

 

[user]

Originally posted by LoboGunLeather: ...The object of the exercise is LEGAL survival to this point. ... The object of the exercise now is financial survival. The advice is (a) lawyer-up immediately, say nothing to anyone other than your lawyer, express no opinions or thoughts on the matter except as directed by your lawyer; and (b)call your liability insurance company (most homeowners insurance policies contain personal liability coverage, ...

Thanks for that; but I'd make one point about the homeowner's insurance. They have a stake in your defense, as their pocketbook could be on the line if there's a finding of civil liability due to your negligence. They're not liable if your acts are "intentional", as opposed to "negligent".) They're going to hire their own attorney, ostensibly to represent you, and that attorney is going to enter an appearance as your attorney, and is ethically on the hook to represent you. But as a practical matter, that attorney really represents the insurance company, and will sacrifice you to the wolves if that's best for the company. He knows which side of the bread his butter's on. That means you need your own attorney; you're entitled to have your own attorney, and you really do need your own attorney, especially in a serious case like that; you'll have to have one, anyway, if there are criminal charges against you, as the insurance company won't defend you on criminal charges.

Originally posted by LoboGunLeather, continued: ... Certain to receive great scrutiny will be your selection of sidearm, your firearms training and experience, your selection of ammunition, your method of carrying and concealing your weapon.

I genuinely sympathize with the poor SOB who selected a weapon based upon its lethal capabilities, or the dumb SOB who has had his pistol modified in any way/shape/form from the way it was manufactured, or the nutcase who chose ammunition that is significantly greater in lethal effect than some other ammunition that was readily available (especially anything with "magnum", "+p", "high velocity", "hollow point" or other red flags for that nice liability lawyer to grill him about on the witness stand.
...

I strongly disagree on this point. I've been doing defensive litigation for about twenty years, and as a NRA certified instructor, I give the lecture in courses about what the legal context is for ownership, possession, and use of handguns. And what I tell folks is essentially this (though this is scaled back somewhat, and of course does not represent legal advice):

1) Unless you're a cop and have to execute search warrants at oh-dark-hundred, you have absolutely no reason for the offensive use of a firearm. The only people who need to pull guns in anticipation of trouble or for intimidation are either in the military/tactical/police category or the bank-robber category. You, as ordinary folks considering self defense and defense of loved ones, are strictly defensive users of firearms. That means you should NEVER EVER pull your gun out of its holster unless and until you've ALREADY got a good, legally excusable reason to shoot someone dead, dead, dead.

2) If you find yourself in court because you've hurt someone with your gun, and you followed rule 1 above, then you've got a good defense; that is, you were faced with an immediate and real threat of serious bodily injury or death because of an attacker. It doesn't matter whether you were afraid, angry, or what other emotional reaction you may have had. What matters is that you "apprehended", or were aware of, the threat. The reason that part is in the definition of the defense, is that it's no good to have imagined a threat, or considered that there may have been a threat. On the other hand, a good faith belief that there was a threat, based on objective facts, is sufficient, even if it turns out that there never was a "real" threat (the cops use this angle all the time). The threat has to be immediate, not a threat about what will happen tomorrow, or even two minutes from now. In other words, you're justified in not just shooting, but in actually killing another human being, if and only if doing so will prevent that person from doing you or another person serious bodily harm.

3) Ok, so if rules 1 and 2 are satisfied, and you still find yourself in court, then IT DOESN'T MAKE A SPIT'S WORTH OF DIFFERENCE WHAT YOU USED TO KILL THE ATTACKER. If you used the broken leg of a chair to stab him with, or a Desert Eagle .50 with armor piercing explosive shrapnel-producing bullets. Your defense is that if you hadn't killed him, he was going to do you serious bodily harm, and that you absolutely did kill him, you meant to kill him, and if it happened again, you'd do exactly the same thing. You used the most lethal force you could get because the result was supposed to be the death of another human being. And, if the prosecutor is dumb enough to start in on how you must have been planning to kill someone because you had Federal HST's in your reduced-trigger weight .44 Magnum six-inch model 29 with the CT laser grips, my response would be to thank the prosecutor for bringing that up. Because the answer is, "YES!", absolutely, my client envisioned the possibility of the use of lethal force to stop an attack, he/she planned well, and that is why he/she is alive today and the attacker is dead, and everybody ought to plan exactly the same way. How many of us have smoke detectors? That's exactly the same kind of planning. Does it prove that you intend an act of arson? That is exactly the same kind of silly conclusion the prosecutor wants you to come to today. Ok, so I'm getting into the excitement of closing argument, but you get my drift.

You do have to plan to use lethal force, and the more effective it is, the better; but you must always remember rules 1 and 2. Keep your gun in its holster unless and until you've already got a good reason to kill another human being; and the only good reason is to disable the immediate threat of serious bodily injury to yourself or another person. (Defense of property is never a good reason - special rules about "castle doctrine" and burglary have to do with the implied threat of bodily harm to residents of the home, not defense of property.)

Originally posted by LoboGunLeather, continued: ... Document all of your training, along with the certifications and qualifications of instructors. Keep a record of your practice sessions (a simple notebook can work, with dates and total times, number of rounds consumed, etc).

I have to disagree with that one, too. That stuff will all become discoverable evidence, and other than documents certifying that you've had training, don't keep any of it, at least not for legal defense purposes.

Originally posted by LoboGunLeather, continued: ... And I hope that I have remembered to say "LAWYER-UP" and "KEEP YOUR MOUTH SHUT".

Right. Really. Absolutely. Respond to questions by the police with polite but firm and insistent refusals to discuss the matter without your lawyer present. You have to give them your full name and address, but that's it. But be polite, don't just act like an idiot and not say anything at all. "I prefer not to discuss it without my lawyer." is best. And when they start in with something about how you must be guilty and have something to hide if you feel you need a lawyer, you can say, "You guys are cops, right? And you want to ask me questions? Then I must need a lawyer." Because LoboLeather is absolutely right, the policeman is not your friend; he's a professional in the paid employment of the state and sworn to do his duty. Which is to find a reason to put you away if he can.

Originally posted by LoboGunLeather, continued: ... Being under psychological treatment yourself for post-traumatic stress related to the incident FORCED UPON YOU by the dead/injured party may not be a bad idea. ...

Watch out how that's characterized though. "Counseling" won't make you ineligible to be in lawful possession of a handgun; a diagnosis of, and treatment for, a mental deficiency, disease, or defect will. Going to the shrink could turn you into a felon. Just because you've got a concealed carry permit, once you've been diagnosed as having a mental instability, become subject to a restraining order involving domestic violence, etc., it will become unlawful for you to be in possession of a firearm.

Be sure to talk to your lawyer about it first.

Now I want to handle the "you're just plugging lawyers 'cause you have an interest in generating exorbitant legal fees" issue. Most lawyers have more work than they can handle. Most people can't pay, and most lawyers don't charge, exorbitant legal fees. I charge a lot of money for something like defending someone against serious felonies. Of course, lawyers are like people in any other profession: some are really good, some are really bad, and most are average. If you're threatened with twenty years to life in prison, I should think you'd want someone who's really good. Average isn't going to cut it, unless you're defending against a speeding ticket.

And also, what if you did something stupid? What if you killed someone because you thought her baby's pacifier was a deadly weapon and that the baby was a bomb? What if you pulled your gun out just to scare someone and it wasn't an attacker, it was a disoriented Alzheimer's victim who wanted directions and you scared the aged dame into a heart attack in the presence of credible witnesses?

That's why God invented the plea bargain. You still need to be able to persuade the state's prosecutor that you are ready, willing, and able to go to trial and do well there and at sentencing, in order to get a reasonable deal. That's because plea bargaining really is like horse trading. They charge you with five times what they think they can actually prove, in hopes that you'll plead guilty to something less than that. People always get railroaded in these situations because they're afraid and uncertain. You need the best defense you can get, just so things will be fair. In a situation like that, you're going to be found guilty, and it becomes an issue of damage control. A traffic-ticket or divorce lawyer is not what you need in a situation like that. Find someone with experience defending serious felonies.

So LoboLeather is right, the time to start finding a good lawyer is now. You're going to have to take what you get if you wait until the last minute. Find people who are likely to know who the good lawyers are, like other lawyers, court reporters, bailiffs, newspaper reporters, etc. And find someone who's good at defense in both serious criminal and civil cases - that's not always the same person. And when you find someone, contact them, buy a half-hour of their time just to chat and get comfortable (and to make sure you've got the right person), and tell them why you intend to keep their card in your wallet and make sure that whenever you call them, they're going to help you.

 

[flop-shank]

Originally posted by boomstick:
I thought Fish was about 5'10 and 200 pounds. That's a huge advantage over you?

If that is Fish's height weight, IIRC he's giving up height, weight and age to Kuenzli, and not any of them in small ammounts. Combined, the physical difference is huge.

If you're ever charged, it might be a good idea to take the stand in your own defense, unlike Fish. I think the fact that the defendant didn't take the stand to tell the jury his side of the story had more to do with his conviction than the type of bullet he shot the guy with. I think he was afraid and he over reacted.

Good point. Honestly, Fish ran into Murphy's law on a nuclear level. It was such a crazy convoluted case where nothing seemed to go right for him that it's probably a once in a lifetime deal. I won't change any of my carry doctrine based on that case. I don't think Fish lost for any one reason. It was multiple things that shot him down. If one or two things had gone differently, my guess is that he'd be free. A witness would be a good example. Unfortunately for Fish there are only three who were there to see what happened and two aren't going to say much (they are dogs

) and the third is Fish, an interested party. Another thing would have been the admission of evidence of Kuenzli's mental instability issues, acts of prior violence and general craziness. I don't believe much, or any, of that evidence was admitted. No one but a crazy person would attack a man with a full size pistol drawn. It would be hard to believe Kuenzli would be that nuts unless one saw the evidence that he in fact was.

 

[tanksoldier]

Originally posted by flop-shank:
A crazy, unarmed 80 year old man who weighed 120 lbs. would not be justified because I could overpower him easily.

So you can't shoot somebody until AFTER they have your gun? Interesting logic.

Using your logic that unarmed 80 year old could simply walk up and take your weapon. He hasn't actually assaulted you until he touches you, so you are obviously unable to defend yourself against him until he does something illegal.

To my mind anyone who attempts to close within grappling distance of me is a deadly threat. Even a person older or smaller than me can still get my weapon away without winning a wrestling match.

This is a situation, like somebody closing with a knife, where you might draw and warn them off but if they continue to close it is obvious THEY think they can win the gunfight with their bare hands... safer for you if you believe them.