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Thread: Defense loads and the law

  1. #71
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    Quote Originally Posted by tattedupboy View Post
    Well, as I've said repeatedly on this thread, they should remember who the criminal is and who the victim is and act accordingly. Prosecute based upon intent, not based upon the caliber used.
    I agree that they should prosecute based on intent. Here's an example on how caliber may be used to demonstrate intent. Suppose you have an average citizen who has a modest firearms collection, has several revolvers that he uses for "home protection". We'll call this citizen "Joe". Joe has his primary personal protection revolver that's a .357 magnum S&W 686, and his other home defense revolvers are .38 special made by various manufacturers. One day Joe hears someone fumbling around down stairs around 3am. He picks up his flashlight and his S&W 686 to see what's going on. He sees the shadows of what appears to be either very small men or 12 to 13 year old youths. At this point, he figures that they're unarmed, so he goes into his gun safe and retrieves his Sig Sauer Mosquito. He figures that he could use the .22 cal Mosquito to defend himself if necessary, but not necessarily kill the youths because they're young and have a long life ahead of them. He gets down stairs and the youths rush him. Feeling threatened, he unloads the 15 round magazine into the three youths. One youth bleeds out and dies while waiting for an ambulance, a second youth is critically injured due to a bullet to the head. The third youth manages to escape and check himself into a local hospital with a couple of bullets in his backside. Police arrive and question Joe, who states to the police that he would like to cooperate, but would like his attorney present before answering any questions.

    Few hours later, attorney arrives at the police station and the police question Joe. He answers questions that his attorney advises him to, and cooperates to the best of his ability with the police. He's released pending further investigation. The police take his Sig Mosquito into evidence.

    During the police investigation they discover that Joe has many firearms registered. The detectives wonder why he would use a .22 rather than his primary defensive firearm. Keep in mind that he never states anything to the police about wanting the youths to live a long life, or anything that would incriminate him. So far all he's stated was that he saw multiple BG in the house, retrieved his firearm, then was rushed by the youths while he attempted to get to the phone to call 911 (cell phones don't work where he lives, his only phone is in the kitchen).

    Based on the fact that Joe had access to firearms that would have been able to stop the threat of three BG with knives rushing him, and the fact that he grabbed his .22 when he would have normally used a .357 mag or .38 spc, the police determine that the shooting wasn't justified and turn the case over to the prosecutor's office for review. Prosecutors determine that the guy had used a caliber that was inadequate for self defense due to the other options that Joe had. They charge him with negligent homicide (for the guy who bled out while waiting for an ambulance), and first degree assult with a deadly weapon (for the two youths that didn't die, but got shot), and reckless endangerment (for discharging a firearm in a residental neighborhood).

    This case would have been a lot different if the guy didn't decide to in essence try to "scare" the youths. He should have used the adequate force necessary to stop the threat. In this case the police and prosecutors can argue that a .22 is not adequate to stop a threat. If Joe owned only a .22 caliber pistol, he could argue that this was his best (and only) option with regard to use of firearms. However, since he had other pistols that would have been adequate, the prosecutors can use that fact against him and argue that he did intend to "scare" the youths, but was overpowered by them while they tried to get away.

    I'm not trying to start an argument or debate here, simply trying to show that there are times when police and prosecutors will come up with all kinds of theories that could put your average gun owner in jail. We as firearms owners need to be aware of the serious consequences of our actions. This is why I strongly recommend to all of my students that they should pick an appropriate caliber for their home defense pistol. There are some states that don't allow certain calibers to be carried for defensive purposes. I'm sure that we could find many cases that have gone to court if we looked hard enough.

    Bottom line is that we should all be pro active in chosing what we carry. Consult competent legal counsel and familiarize yourself with the laws of your state and the states where you'll be traveling.



    gf
    "A few well placed shots with a .22LR is a lot better than a bunch of solid misses with a .44 mag!" Glock Armorer, NRA Chief RSO, Pistol, Rifle, Shotgun, Muzzleloading Rifle, Muzzleloading Shotgun, and Home Firearm Safety Training Counselor

  2.   
  3. I think many of you should read up on some actual cases of justifiable use of deadly force. How after BG's were still not down after being shot several times with .45. I know of one case where a guy was sitting on a bench waiting for police, still able to move, and still alive with 6 rounds in him.

    You must realize the moment that you choose to carry a firearm that you open yourself up to all kinds of potential legal issues. This has been my point from the beginning. You either have the mindset or you don't.

    How about the scenario where the BG did not go down after 2 thoracic shots, so a head shot was employed. I can assure you that when the State Attorney looked at the case, the last thing that he was concerned with was what caliber was used. They were more concerned with whether the victim was excessive in placing one in the head.

    Most of us who are trained, or train on a regular basis are taught to shoot to end an attack. How you shoot and how many shots you fire may come into play way before caliber does.

    As a final note for me. I have never suggested that anyone carry over a .45, as most weapons of a higher caliber would not be concealable. I am not a hand loader, so this is not an issue for me either. I do not believe that I should have to limit the type of load I carry, and will continue to carry what I consider to be the best load to stop an attack quickly and effectively. The safety of my family outweighs my concern about liability.
    "Always at your command"
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  4. #73
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    You cannot determine a person's intent based upon the caliber used.

    I've never heard caliber being used as an aggravating factor (nor should it be) against a convicted killer; murder is murder and armed robbery is armed robbery whether it is committed with a .22 caliber pistol or with a .50 caliber rifle. Why should it be considered in self defense cases?

  5. #74
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    Quote Originally Posted by Glock Fan View Post
    I agree that they should prosecute based on intent. Here's an example on how caliber may be used to demonstrate intent. Suppose you have an average citizen who has a modest firearms collection, has several revolvers that he uses for "home protection". We'll call this citizen "Joe". Joe has his primary personal protection revolver that's a .357 magnum S&W 686, and his other home defense revolvers are .38 special made by various manufacturers. One day Joe hears someone fumbling around down stairs around 3am. He picks up his flashlight and his S&W 686 to see what's going on. He sees the shadows of what appears to be either very small men or 12 to 13 year old youths. At this point, he figures that they're unarmed, so he goes into his gun safe and retrieves his Sig Sauer Mosquito. He figures that he could use the .22 cal Mosquito to defend himself if necessary, but not necessarily kill the youths because they're young and have a long life ahead of them. He gets down stairs and the youths rush him. Feeling threatened, he unloads the 15 round magazine into the three youths. One youth bleeds out and dies while waiting for an ambulance, a second youth is critically injured due to a bullet to the head. The third youth manages to escape and check himself into a local hospital with a couple of bullets in his backside. Police arrive and question Joe, who states to the police that he would like to cooperate, but would like his attorney present before answering any questions.

    Few hours later, attorney arrives at the police station and the police question Joe. He answers questions that his attorney advises him to, and cooperates to the best of his ability with the police. He's released pending further investigation. The police take his Sig Mosquito into evidence.

    During the police investigation they discover that Joe has many firearms registered. The detectives wonder why he would use a .22 rather than his primary defensive firearm. Keep in mind that he never states anything to the police about wanting the youths to live a long life, or anything that would incriminate him. So far all he's stated was that he saw multiple BG in the house, retrieved his firearm, then was rushed by the youths while he attempted to get to the phone to call 911 (cell phones don't work where he lives, his only phone is in the kitchen).

    Based on the fact that Joe had access to firearms that would have been able to stop the threat of three BG with knives rushing him, and the fact that he grabbed his .22 when he would have normally used a .357 mag or .38 spc, the police determine that the shooting wasn't justified and turn the case over to the prosecutor's office for review. Prosecutors determine that the guy had used a caliber that was inadequate for self defense due to the other options that Joe had. They charge him with negligent homicide (for the guy who bled out while waiting for an ambulance), and first degree assult with a deadly weapon (for the two youths that didn't die, but got shot), and reckless endangerment (for discharging a firearm in a residental neighborhood).

    This case would have been a lot different if the guy didn't decide to in essence try to "scare" the youths. He should have used the adequate force necessary to stop the threat. In this case the police and prosecutors can argue that a .22 is not adequate to stop a threat. If Joe owned only a .22 caliber pistol, he could argue that this was his best (and only) option with regard to use of firearms. However, since he had other pistols that would have been adequate, the prosecutors can use that fact against him and argue that he did intend to "scare" the youths, but was overpowered by them while they tried to get away.

    I'm not trying to start an argument or debate here, simply trying to show that there are times when police and prosecutors will come up with all kinds of theories that could put your average gun owner in jail. We as firearms owners need to be aware of the serious consequences of our actions. This is why I strongly recommend to all of my students that they should pick an appropriate caliber for their home defense pistol. There are some states that don't allow certain calibers to be carried for defensive purposes. I'm sure that we could find many cases that have gone to court if we looked hard enough.

    Bottom line is that we should all be pro active in chosing what we carry. Consult competent legal counsel and familiarize yourself with the laws of your state and the states where you'll be traveling.



    gf

    You couldn't possibly be serious, right? Let's not forget that in the example you provided, these young punks broke into the guy's home. They had no right to be there, and when you consider that plus the fact that they rushed at him, it simply is not conceivable that he would get prosecuted.

  6. #75
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    Quote Originally Posted by tattedupboy View Post
    You cannot determine a person's intent based upon the caliber used.

    I've never heard caliber being used as an aggravating factor (nor should it be) against a convicted killer; murder is murder and armed robbery is armed robbery whether it is committed with a .22 caliber pistol or with a .50 caliber rifle. Why should it be considered in self defense cases?
    It weighs into malice. If malice is proven you almost certainly will lose the civil trial and may, depending upon the jurisdiction, the criminal. Not all States have a castle doctrine much less a stand your ground statute. Again, this will not be an issue in stand your ground States with statutory civil suit immunity but it may be an issue elsewhere.
    Know the law; don't ask, don't tell.
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  7. #76
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    Quote Originally Posted by tattedupboy View Post
    You couldn't possibly be serious, right? Let's not forget that in the example you provided, these young punks broke into the guy's home. They had no right to be there, and when you consider that plus the fact that they rushed at him, it simply is not conceivable that he would get prosecuted.
    This poster is in HI with is not a right to carry State and to my knowledge has no castle doctrine or stand your ground statute. It's also one of the reasons I won't visit HI. FL gets my vacation dollars.

    If you're in AK or another wilderness or rural area where you have to deal with the threat of medium to large animals as well as products of a correctional system, carrying a 10mm, .44 magnum all the way up to a .500 S&W would be much more reasonable in the eyes of the investigating LEOs, prosecution and jury. It would not be reasonable in HI so the shooting would be placed under a greater scrutiny.

    Part of the factor of how the case goes down is where the incident takes place. If the incident happens in an anti-2A jurisdiction then you may lost your freedom and the farm in the process.
    Last edited by netentity; 08-18-2008 at 09:49 AM.
    Know the law; don't ask, don't tell.
    NRA & UT Certified Instructor; CT, FL, NH, NV, OR, PA & UT CCW Holder
    Happy new 1984; 25 years behind schedule. Send lawyers, guns and money...the SHTF...

  8. #77
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    Quote Originally Posted by Palmach View Post
    I think many of you should read up on some actual cases of justifiable use of deadly force. How after BG's were still not down after being shot several times with .45. I know of one case where a guy was sitting on a bench waiting for police, still able to move, and still alive with 6 rounds in him.

    You must realize the moment that you choose to carry a firearm that you open yourself up to all kinds of potential legal issues. This has been my point from the beginning. You either have the mindset or you don't.
    Again, no denying that. I also mention that fact when I teach.

    Most of us who are trained, or train on a regular basis are taught to shoot to end an attack. How you shoot and how many shots you fire may come into play way before caliber does.
    Apparently it doesn't in HI. You could be charged for using too small of a caliber as well as too large. You were waiting for your example, we now have one where a HI DA does instruct his staff to place a homicide case under greater scruntiny if a caliber other than what the local LEOs use is involved in the shooting. Also remember what Evan Marshall of handgun stopping power fame has said, 'Even if the situation is exactly as it appears and you’re even in accordance with the law, you need to understand one simple fact-the law is what the local prosecutor says it is. Do you really want to spend 7 years in jail waiting for an appeal to be heard and your conviction overturned?" The reciprocal argument could be used for a caliber too large. Again, it may not be an issue in your jurisdiction if you have a stand your ground statute with civil suit immunity.
    Last edited by netentity; 08-18-2008 at 09:53 AM.
    Know the law; don't ask, don't tell.
    NRA & UT Certified Instructor; CT, FL, NH, NV, OR, PA & UT CCW Holder
    Happy new 1984; 25 years behind schedule. Send lawyers, guns and money...the SHTF...

  9. #78
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    Quote Originally Posted by netentity View Post
    This poster is in HI with is not a right to carry State and to my knowledge has no castle doctrine or stand your ground statute. It's also one of the reasons I won't visit HI. FL gets my vacation dollars.
    We need folks to testify that they won't visit PRHI due to the "anti-gun" laws. Tourism, along with the economy is taking a serious dive. If many folks like yourself would help us by letting the lawmakers know that you elect to vacation elsewhere, it will greatly help our quest to change the CCW laws.



    gf
    "A few well placed shots with a .22LR is a lot better than a bunch of solid misses with a .44 mag!" Glock Armorer, NRA Chief RSO, Pistol, Rifle, Shotgun, Muzzleloading Rifle, Muzzleloading Shotgun, and Home Firearm Safety Training Counselor

  10. #79
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    Quote Originally Posted by Glock Fan View Post
    We need folks to testify that they won't visit PRHI due to the "anti-gun" laws. Tourism, along with the economy is taking a serious dive. If many folks like yourself would help us by letting the lawmakers know that you elect to vacation elsewhere, it will greatly help our quest to change the CCW laws.
    PM me or post with where to send such testimony and I'll be happy to e-mail or FAX it to them or perhaps you could post it on the HI State section of this site. I have trips planned for FL, TX and WA in the next few months; all right to carry States. I enjoy traveling, but I will not travel anywhere I cannot legally carry.
    Know the law; don't ask, don't tell.
    NRA & UT Certified Instructor; CT, FL, NH, NV, OR, PA & UT CCW Holder
    Happy new 1984; 25 years behind schedule. Send lawyers, guns and money...the SHTF...

  11. I really dont believe it would go down this way.Even in the state that brought us obma. The appeal would overturn it.

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