9 ways your firearm can be attacked in court

Discussion in 'Legal and Activism' started by opaww, Aug 28, 2013.

  1. opaww

    opaww New Member

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    http://www.secondcalldefense.org/se...firearm-can-be-attacked-court?affiliate=20007

    To most level-headed people, a gun is a gun is a gun. So the equipment you own or carry shouldn't matter if you find yourself in court after a self defense shooting.

    After all, when your life is on the line, you're going to use whatever weapon you have at hand.

    But as crazy as it seems, some prosecutors will do anything to get a conviction, and that includes trying to turn a jury against you based on the specifics of the firearm or ammo you used to defend yourself.

    Read the list at the link
     
  2. mountainman13

    mountainman13 New Member

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    Be prepared for an onslaught of "show me the court case" comments man.
     

  3. CrazedJava

    CrazedJava New Member

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    Those are all plausible attacks from a prosecutor. They are also all fairly weak. Really it depends on your area. In Texas, most of those would be laughed off by any jury outside of Austin.
     
  4. j4454

    j4454 New Member

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    Sounds like hearsay. Or opinion at best. I'm not sure why all the talk about guns in court has taken off lately without being substantiated. I have to imagine even if this is somewhat true it would completely depend on you state/county/DA
     
  5. CrazedJava

    CrazedJava New Member

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    Part of it is reaction to the prosecutor in the Zimmerman case making a big deal about carrying with a round in the chamber.

    That sounds real bad if your experience with firearms is entirely from movies or TV. I imagine it took less than 5 minutes for the defense to explain why that was a proper way to carry a self defense weapon. Considering the outcome, whoop dee do.

    If you have a completely ignorant jury who is predisposed to hate firearms, like say Chicago, then these arguments may actually have some weight. However, they are still fairly weak. Most of them are easily argued against if you have a halfway competent defense. None of it really displays intent, which is what will be important in a murder case.
     
  6. therewolf

    therewolf New Member

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    "Why did you use handloads? Weren't the store loads deadly enough?"

    A:"I use less powder in MY bullets. It's more accurate, when shooting at

    the range."

    In court, a calm demeanor, and a Defense Attorney who's going to

    call objections to leading questions, is important...
     
  7. John_Deer

    John_Deer New Member

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    The article is an infomercial designed to scare people into taking lessons, it is not a reliable source. When you get a reliable source posting this information I would welcome it. This is why we have so much misinformation in internet forums.

    This thread should be closed and deleted.
     
  8. alsaqr

    alsaqr Well-Known Member Supporter

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    If a shooter finds himself/herself in court charged with murder or manslaughter he/she has big troubles:

    1. The police did not believer his/her story.
    2. The prosecutor did not believe his/her story.
    3. The judge who ordered the defendant bound over for trial or the grand jury did not believe his/her story.

    There is a very good chance the jury will not believe his/her story.

    IMO: The handloads thing is much overblown despite the fact that Mas Ayoob often harps on this one. Handgun editor Sheriff Jim Wilson and a retired federal judge searched for a case where the use of handloads in a righteous shooting made any difference. They could not find one such case.
     
    Last edited: Aug 28, 2013
  9. opaww

    opaww New Member

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    http://www.gunforums.net/forums/gen...andloads-caused-problems-court-mas-ayoob.html

    Cases Where Handloads Caused Problems in Court

    As promised, here are the sources for records for any who feel a need to confirm the cases I have referenced previously where handloaded ammunition caused problems for people in the aftermath of shootings.

    As I have noted in this thread earlier, and as the attorneys who have responded to this matter have confirmed, local trials and results are not usually available on-line. However, in each case, I have included the location where the physical records of the trials are archived.

    NH v. Kennedy

    James Kennedy, a sergeant on the Hampton, NH police force, pursued a drunk driver whose reckless operation of the vehicle had forced other motorists off the road. The suspect ended up in a ditch, stalled and trying to get underway again. Advised by radio that responding backup officers were still a distance away, and fearing that the man would get back on the road and kill himself and others, Kennedy approached the vehicle. At the driver’s door, the suspect grabbed Kennedy’s Colt .45 auto and pulled it towards himself. It discharged in his face, causing massive injury.

    The reload in the gun was a 200 grain Speer JHP, loaded to duplicate the 1000 fps from a 5” barrel then advertised by Speer for the same bullet in loaded cartridge configuration.

    This was the first case where I saw the argument, “Why wasn’t regular ammunition deadly enough for you,” used by opposing counsel. They charged Kennedy with aggravated assault. They made a large issue out of his use of handloads, suggesting that they were indicative of a reckless man obsessed with causing maximum damage.

    Defense counsel hired the expert I suggested, Jim Cirillo, who did a splendid job of demolishing that argument and other bogus arguments against Kennedy at trial, and Kennedy was acquitted.

    This case dates back to the late 1970s. The local courts tell me that the case documentation will be on file at Rockingham County Superior Court, PO Box 1258, Kingston, NH 03843. File search time is billed at $25 per hour for cases such as this that date back prior to 1988.

    NJ V. Bias

    This is the classic case of gunshot residue (GSR) evidence being complicated by the use of handloaded ammunition, resulting in a case being misinterpreted in a tragic and unjust way. On the night of 2/26/89, Danny Bias entered the master bedroom of his home to find his wife Lise holding the family home defense revolver, a 6” S&W 686, to her head. He told police that knowing that she had a history of suicidal ideation, he attempted to grab the gun, which discharged, killing her. The gun was loaded with four handloaded lead SWC cartridges headstamped Federal .38 Special +P.

    Autopsy showed no GSR. The medical examiner determined that Lise Bias had a reach of 30”, and the NJSP Crime Lab in Trenton determined that the gun in question would deposit GSR to a distance of 50” or more with either factory Federal 158 grain SWC +P .38 Special, or handloads taken from his home under warrant for testing after Danny told them about the reloads. However, the reloads that were taken and tested had Remington-Peters headstamps on the casings and were obviously not from the same batch.

    Danny had loaded 50 rounds into the Federal cases of 2.3, 2.6, and 2.9 grains of Bullseye, with Winchester primers, under an unusually light 115 grain SWC that he had cast himself, seeking a very light load that his recoil sensitive wife could handle. The gun had been loaded at random from that box of 50 and there was no way of knowing which of the three recipes was in the chamber from which the fatal bullet was launched.

    We duplicated that load, and determined that with all of them and particularly the 2.3 grain load, GSR distribution was so light that it could not be reliably gathered or recovered, from distances as short as 24”. Unfortunately, the remaining rounds in the gun could not be disassembled for testing as they were the property of the court, and there is no forensic artifact that can determine the exact powder charge that was fired from a given spent cartridge.

    According to an attorney who represented him later, police originally believed the death to be a suicide. However, the forensic evidence testing indicated that was not possible, and it was listed as suspicious death. Based largely on the GSR evidence, as they perceived it, the Warren County prosecutor’s office presented the case to the grand jury, which indicted Danny Bias for Murder in the First Degree in the death of his wife.

    Attorney John Lanza represented Danny very effectively at his first trial, which ended in a hung jury. Legal fees exceeded $100,000, bankrupting Danny; Attorney Lanza, who believed then and now in his client’s innocence, swallowed some $90,000 worth of legal work for which he was never paid.

    For his second trial, Bias was assigned attorney Elisabeth Smith by the Public Defender’s office. Challenging the quality of evidence collection, she was able to weaken the prosecution’s allegation that the GSR factor equaled murder, but because the GSR issue was so muddled by the handloaded ammo factor, she could not present concrete evidence that the circumstances were consistent with suicide, and the second trial ended with a hung jury in 1992. At this point, the prosecution having twice failed to convince a jury beyond a reasonable doubt, the judge threw out the murder charge.

    It was after this that I personally lost track of the case. However, I’ve learned this past week that the case of NJ v. Daniel Bias was tried a third time in the mid-1990s, resulting in his being acquitted of Aggravated Manslaughter but convicted of Reckless Manslaughter. The appellate division of the Public Defender’s office handled his post-conviction relief and won him a fourth trial. The fourth trial, more than a decade after the shooting, ended with Danny Bias again convicted of Reckless Manslaughter. By now, the state had changed its theory and was suggesting that Danny had pointed the gun at her head to frighten her, thinking one of the two empty chambers would come up under the firing pin, but instead discharging the gun. Danny Bias was sentenced to six years in the penitentiary, and served three before being paroled. He remains a convicted felon who cannot own a firearm.

    It is interesting to hear the advice of the attorneys who actually tried this case. John Lanza wrote, “When a hand load is used in an incident which becomes the subject of a civil or criminal trial, the duplication of that hand load poses a significant problem for both the plaintiff or the prosecutor and the defendant. Once used, there is no way, with certainty, to determine the amount of powder or propellant used for that load. This becomes significant when forensic testing is used in an effort to duplicate the shot and the resulting evidence on the victim or target.”

    He adds, “With the commercial load, one would be in a better position to argue the uniformity between the loads used for testing and the subject load. With a hand load, you have no such uniformity. Also, the prosecution may utilize either standard loads or a different hand load in its testing. The result would be distorted and could be prejudicial to the defendant. Whether or not the judge would allow such a scientific test to be used at trial, is another issue, which, if allowed, would be devastating for the defense. From a strictly forensic standpoint, I would not recommend the use of hand loads because of the inherent lack of uniformity and the risk of unreliable test results. Once the jury hears the proof of an otherwise unreliable test, it can be very difficult to ‘unring the bell.’”

    Ms. Smith had this to say, after defending Danny Bias through his last three trials. I asked her, “Is it safe to say that factory ammunition, with consistently replicable gunshot residue characteristics, (would) have proven that the gun was within reach of Lise’s head in her own hand, and kept the case from escalating as it did?”

    She replied, “You’re certainly right about that. Gunshot residue was absolutely the focus of the first trial. The prosecution kept going back to the statement, “It couldn’t have happened the way he said it did’.”

    The records on the Bias trials should be available through:
    The Superior Court of New Jersey
    Warren County
    313 Second Street
    PO Box 900
    Belvedere, NJ 07823

    Those who wish to follow the appellate track of this case will find it in the Atlantic Reporter.

    142 N.J. 572, 667 A.2d 190 (Table)

    Supreme Court of New Jersey
    State
    v.
    Daniel N. Bias
    NOS. C-188 SEPT.TERM 1995, 40,813
    Oct 03, 1995
    Disposition: Cross-pet. Denied.
    N.J. 1995.
    State v. Bias
    142 N>J> 572, 667 A.2d 190 (Table)
     
  10. opaww

    opaww New Member

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    TN v. Barnes

    The decedent attacked Robert Barnes and his young daughter with a large knife and was shot to death by the defendant with SJHP .38 Special reloads from a Smith & Wesson Model 36. The distance between the two at the time of the shooting became a key element in the trial, and a misunderstanding of that distance was a primary reason he was charged with Murder. The evidence was messed up in a number of ways in this case, and I do not believe the reloaded ammo (which the prosecution did not recognize to be such until during the trial) was the key problem, but it definitely was part of a problem in reconstructing the case. We were able to do that without GSR evidence, and Mr. Barnes won an acquittal. In this case, I believe the use of factory ammo, combined with proper handling and preserving of the evidence by the initial investigators, would have made the defense much easier and might well have prevented the case from ever being lodged against him.

    The records of TN v. Barnes are archived under case number 87297015 at:

    Criminal Justice Center
    201 Poplar
    Suite 401
    Memphis, TN 38103

    Iowa v. Cpl. Randy Willems

    A man attempted to disarm and murder Corporal Randy Willems of the Davenport, IA Police Department, screaming “Give me your (expletive deleted) gun, I’ll blow your (expletive deleted) brains out.” Willems shot him during the third disarming attempt, dropping him instantly with one hit to the abdomen from a department issue factory round, Fiocchi 9mm 115 grain JHP +P+. The subject survived and stated that the officer had shot him for nothing from a substantial distance away. GSR testing showed conclusively that the subject’s torso was approximately 18” from the muzzle of the issue Beretta 92 when it discharged. Randy was acquitted of criminal charges in the shooting at trial in 1990. Two years later, Randy and his department won the civil suit filed against them by the man who was shot.

    I use this case when discussing handloads because it is a classic example of how the replicability of factory ammunition, in the forensic evidence sense, can annihilate false allegations by the “bad guy” against the “good guy” who shot him. The records of State of Iowa v. Corporal Randy Willems are archived in the Iowa District Court in Scott County, Davenport, Iowa. Those from the civil suit, Karwoski v. Willems and the City of Davenport, should be at the Iowa Civil Court of Scott County, also located in Davenport, Iowa.

    A final word: I did not research the above and place it here to placate lightweight net ninjas. I did it because three recent Internet threads led me to believe that a number of decent people had honest questions about the real-world concerns about using handloads for self-defense, and were possibly putting themselves in jeopardy by doing so. For well over a decade, certain people have been creating an urban myth that says, “No one has ever gotten in trouble in court because they used handloads.”

    This is now absolutely, and I hope finally, refuted.

    Respectfully submitted,
    Massad Ayoob

    Source - http://www.thehighroad.org/showpost....&postcount=140

    There was three other cases one in Ca. just a few years ago that they tried to prove reloads were the cause of the death from someone who used them to defend against a criminal if I run across them I will post them
     
  11. opaww

    opaww New Member

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    I know of no cases where the modification of a weapon was used by an attorney to make someone look guilty, but it does not mean it has not or can not happen with the mentality of the anti-gun bottom feeders anything is possible.

    It is something that people should be ready to defend against if they are brought to trial for such as this
     
  12. alsaqr

    alsaqr Well-Known Member Supporter

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    Mas Ayoob talks all around this stuff. Yep, show me where the use of handloads in a righteous self defense case where a civilian killed an attacking perp made any difference in the outcome of a criminal trial.
     
  13. opaww

    opaww New Member

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    All I see in all this is the anti's using anything they can use to make gun owners and the gun out as the bad guy
     
  14. FullautoUSA

    FullautoUSA Welcoming Committee/ Resident Pellet Gunner Lifetime Supporter

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    You have a point there, the anti's will be saying that "we need to ban hand loading equipment, hollow points, and lasers because they make it easier for those gun nuts to kill people" and that type of crap.
     
  15. Axxe55

    Axxe55 The Apocalypse Is Coming.....

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    some very good posts Opaww.

    i see it this way, it should not matter one iota what firearm or ammo is used as long as they are legal if the shooting is justified and righteous.

    but, in this day and age, all it would take an overzealous, gun hating, liberal prosecutor with a burr under his saddle to want to make a case a precident and make an example for future cases of justified SD shootings.

    IMO, a shooting is either justified or it isn't. if the facts and evidence bear out the situation that took place, then the firearm and ammo should be irrelevent and not a factor that should ever be considered.

    a person should never have to make a decision on the firearms or ammo they want to use to protect themselves, based on what liberal gun haters might think or say.
     
  16. DeltaF

    DeltaF New Member

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    ...blah blah blah. If your life or someone else's life is obviously in danger the justification for lethal force is there in most states, and it doesn't matter if you use hand loaded ammo, a vehicle or a baseball bat if you can prove that you did what was necessary for a reasonable person to stop the threat you'll be clear. I'm sure those arguments have been used before and will be used again.

    Show me one where it resulted in a jury swinging from not guilty to guilty and I'll pay attention to it.
     
  17. Axxe55

    Axxe55 The Apocalypse Is Coming.....

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    nobody is saying that it has happened in a justified or righteous Sd shooting, but, that it could happen, if the wrong prosecutor and the wrong jury is sitting in that particular day in court.

    i agree, it should have no bearing whatsoever, but there always is the possibility that it could happen.

    in most instances, as long as the shooting is justified, it will probably not be and issue. but i personally would not want to roll those dice and come up wrong and my freedom being held in the balance.
     
  18. opaww

    opaww New Member

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    I really don't give a **** if you pay attention or not
     
  19. DeltaF

    DeltaF New Member

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    If the shooting is justified and the jury swings for one of these rediculous reasons, and it doesn't get thrown out in the appeals process, then we might as well start either turning in all our firearms or hunkering down in homemade bunkers because the great American gun grab will have begun and it will be the EOTWAWKI.
     
  20. DeltaF

    DeltaF New Member

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    Carry a squirt pistol. Then the attorney won't have any dumb arguments about your deadlier than deadly force.