Oft repeated legal myths

[bastiat]

I see the following claims made all the time at this and various other boards without ever seeing any backing information:

1. If you reload, don't use your reloads in your defensive / carry weapon or you'll be prosecuted by the DA / sued by your attacker because you used your own reloads. (Maybe they'll sue because your reloads were extr-ee powerful like.)

2. Don't use an AR or AK to defend yourself or you'll be prosecuted by the DA / sued by your attacker because of your choice of weapon. (So using a more politically correct gun in the same caliber will convince a slimy trial lawyer that he shouldn't try to bleed you dry. Or a politically motivated DA will say 'if only he had used an AR-15 instead of a mini-14, I could have brought charges against him! My career is ruined!'.)

The problem is I've never once seen any backing information posted to support these claims. No links to stories, cases, etc. Just armchair legal opinion that seems to be based on nothing more than urban legend.

Now I know people have been sued by their attackers, and people have been prosecuted for self defense. That's not the point here. The point is that even though no one can prove the choice of an otherwise legal defensive weapon or ammo has never been used as a determining factor in a civil or criminal self defense case, people still make the claim. And this isn't about performace issues like overpenetration or the reliability of your reloads, either.

Making claims like this doesn't help anyone any more than a gunshop commando claiming that a .45 acp round will knock a man clean off his feet if you hit him in the wrist. In fact, it may cause more harm than good.

So why do people make these types of claims???

[blades67]

So they can feel important?

[SteelyDan]

Can't objectively support my opinion at all, so feel free to ignore it, but I suspect there's a grain of truth in those "myths."

Jury trials (and especially jury trials in civil actions) are almost never "black and white;" instead, we're dealing with shades of gray. If they were black and white, they would settle and they wouldn't go to trial. Once a case goes to trial, however, jurors are influenced by subtle and possibly irrelevant factors. If a burglar/bullet-recipient sues you for shooting him, his lawyer will do everything possible to show that you were predisposed to using excessive force. I have no problem believing the lawyer's job would be made easier if you "specially" loaded your own hot loads, or if you used an evil assault rifle.

The reality is you're unlikely to end up with a jury panel consisting exclusively of TFLers, and most people will be influenced, to some degree, by such peripheral facts. So I suspect it's a bit of a trade-off: do you want to use the most effective weapon or ammo in a life-threatening situation, or would you give up a couple percentage points in effectiveness to minimize your own potential liability? All of which is a long-winded way of saying don't be too quick to discount the "myths."

At the risk of being even more long-winded, I just think it's more likely you would lose the case if you shot an intruder with an assault rifle firing your special home-brews than if you shot him with the old .38 using factory ammo.

[UnknownSailor]

I have read magazine articles by Massad Ayoob detailing folks who's case have been hampered simply because they used reloads in a justifiable shooting.

Frankly, I can see the point, especially WRT handloads in a self defense shooting. I wouldn't want "he was so bloodthirsty, he made his own, special type of cartridge, to produce the maximum amount of damage possible" ever crossing the lips of the prosecutor.

[Cosmoline]

I'm a blood sucker, so I guess I'll offer my two bits,

-The handload business is nearly all myth, and has no basis in any case law I know of. I ran a few Westlaw searches on several million cases going back to 1945 and came up empty. No competent judge would allow a "killer bullet" argument into a self defense case. All firearms are deadly weapons, and that's all the law is concerned with. The only question in a self defense case is whether the use of deadly force was justified. Whether or not your deadly force was "extra deadly" is just not going to be an issue, unless for some reason you claim you didn't think it would actually kill the guy or some other nonsense. Handloads also might play a role if you deny having anything to do with the killing and the DA has to link a particular bullet with your weapon. I suppose if you're going to murder someone, you'd want to use really common .22 LR ammo sold in the trillions, rather than some hanloaded cartridge that has the fingerprint of your press right on it. I assume nobody plans on becoming a murderer, though.

-The "nasty gun" business is a very real concern in standard murder cases. I know of several cases where DA's have marched around with mean-looking assault rifles in the hopes of scaring the jury. HOWEVER, in a pure self defense case the weapon used should not be at issue at all. You have conceded the fact that you did indeed shoot and kill so-and-so, which leaves only the justification issue to be tried. The weapon of the dead guy may be a very big issue, but your weapon should not come into play. This one is a little less certain than the handload issue, however. Beyond the courtroom, though, a levergun or other "friendly" firearm is less likely to make cops nervous if they see it in your truck.

[KSFreeman]

You're looking for an objective answer to a completely subjective question?

It all depends on a bunch of factors. Done more than a few SD cases, those two matters have never been at issue. (Prosecutors/juries want to know "why", not with what). However, I can see where it COULD.

[Al Thompson]

I think a lot of it depends on where you live. Here in SC that would not be as big a problem as it would in Mass or PRNJ.

Ayoob has some very good reasons for recommending no handloads. Off the top of my head, the one that stood out was the need for exemplars - one of his cases had a question about the distance of the shooter/shootee. Problem was that the reloaded cartridge had a very different powder than was usually used in commercial ammo. The crime lab had the distance wrong and that lead to some confusion.

I also recall that a lot of the problems that arose were in civil procedings as opposed to criminal. That may affect a Nexus/Wesllaw search.

[buzz_knox]

Digging up a dead horse, aren't you? Okay, I'll bite again.

1. Reloads: use reloads all you want. The threat is less that a lawyer will argue that you tried to make an even more dangerous bullet but will instead argue that you were such a gunnie, as evidenced by manufacturing your own ammo, that you were looking for a fight. That may be enough to convince lay people that a good shoot was somehow your fault.

Also, and more importantly, you are giving up the ability to have experts accurately reconstruct the shooting. Unless you roll your own perfectly, keep accurate records and retain sealed exemplars of each batch, there will be no way to test your rounds for powder residue results, etc. as there would be with factory loads (where rounds from each batch are kept as exemplars for such situations). If you're round has a lower than normal powder residue, you're close range shoot may start to look like it was a bit farther away than you claimed. That could make you look like a liar and a murderer.

2. Choice of weapon. Everything, and I repeat everything, will be thrown at you at trial. Some of it will be blocked by the judge but not all of it. Remember O.J.'s dreams of killing his wife? That was let in even though it was patently inadmissible. The key to everything is to have a true explanation

Why did you use an AR-15? I have studied articles that indicated the .223 is effective in stopping an aggressive intruder but is less likely to penetrate walls and harm bystanders. The weapon is easier to handle in some situations than a pistol, so if I am stressed, I am less likely to have an accident. Etc. Etc.

Anticipate the attack and be prepared to deal with it before it's made.

As for the so-called lack of case law, Westlaw does not pick up plea bargains coerced by a DA threatening these tactics. Westlaw does not list settlements forced by civil attorneys doing the same. And Westlaw does not include all cases. I've got several decisions on my desk, some of which should have been reported, but which you will never find on any database because the judge decided not to publish it. I don't base my decisions on Westlaw searches. I'm familiar with the concept of a test case and I don't want to be one.

[lonegunman]

I think Steely Dan is right. The plaintiff's attorney will try to do anything he thinks might make you look bad.

As a case in point, I was once involved in a malpractice case (from which I was ultimately dismissed, I might add), and the plaintiff's lawyer asked me in a deposition, "Are you a member of the Country Club?". I told him I was not.

Now why would he ask that question? Certainly it had nothing to do with the case.

The reason was to make me look like some kind of upper class fat cat with lots of money to spare; to make me look like somebody the people on the jury could not relate to.

Whether or not the "reload" or "evil gun" ideas are grounded in law doesnt matter. It doesnt really even matter if the judge strikes it from the record. After the lawyer makes the point in front of the jury, the damage is done.

[HankB]

Also, and more importantly, you are giving up the ability to have experts accurately reconstruct the shooting.

This could be a two-edged sword. If they can't reconstruct the shooting accurately to clear you, then they can't reconstruct the shooting accurately to hang you, either.

Given a competent attorney, by the time the investigation reveals you've used handloads - assuming they actually look for this at all - you'll be well-prepared with a legal strategy to defuse this issue.

I've read a bit on this, weighed the opinions and have come to the conclusion that in a criminal case, given your use of a competent attorney, the use of handloads will have little or no impact if it's a good shoot. The use of handloads may have an impact in a subsequent civil action.

If the local authorities decide it's a bad shooting, you're in a world of hurt anyway.

FWIW, Yes I handload, and no, I carry top quality factory loaded ammo. Why cede anything - even theoretically - to the other side when you don't gain anything in return? Unlike, say, the 1950's when ball ammo or lead RN/SWC ammo was all that was available, today there are PLENTY of good handgun rounds on the market. IMHO a handloader cannot noticeably improve on the best factory loads for most gun/cartridge combinations.

[Blackhawk]

The lawyer's job is to persuade others to favor his client's position.

People are gullible.

[WyldOne]

I don't know anything about reloads--please don't yell at me, I just don't know. So I'm not gonna say anything about that.

Also, I don't know anything about case law, and I've never sat on a jury before, but I do know a lot about what it's like to think like an anti. I have to say, that if I were sitting on a jury on a case where someone used one of those scary (yes, they are scary! ) guns, I would be more inclined to rule against you. Probably not now--but almost definitely before.

I wish I could explain exactly why I would feel that way. It makes the you (the defendant) look more aggressive. It would probably even make me doubt your story that you were attacked. And what if your attacker happened to be nonwhite? I'd probably think you were racist, looking for someone to blow away.

And I'd probably think about the last scene in Training Day, with the machine gun and Denzel Washington.

[M1911]

1. If you reload, don't use your reloads in your defensive / carry weapon or you'll be prosecuted by the DA / sued by your attacker because you used your own reloads. (Maybe they'll sue because your reloads were extr-ee powerful like.)

2. Don't use an AR or AK to defend yourself or you'll be prosecuted by the DA / sued by your attacker because of your choice of weapon. (So using a more politically correct gun in the same caliber will convince a slimy trial lawyer that he shouldn't try to bleed you dry. Or a politically motivated DA will say 'if only he had used an AR-15 instead of a mini-14, I could have brought charges against him! My career is ruined!'.)

Actually, I think you are exaggerating peoples arguments in order to make them easier for you refute.

I've never heard anyone say that you would be prosecuted or sued if you used reloads and/or an ugly gun but would not be prosecuted or sued if you had only used factory ammo and/or a pretty gun. What I have heard people say is that 1) if you are prosecuted and/or sued and 2) used reloads and/or an ugly gun, that you may have given the opposing attorney (either prosecutor or plaintiff) more ammunition. They will do everything they can to make you look bad -- that's their job. And if you live in an anti-gun area like I do, where few know the difference between an AR15 and an M16 or even that you can reload, then you've may have given him the ammunition to paint you as some 'gun-nut soldier-of-fortune wannabe' who wanted to kill someone.

Is that likely to get you convicted or a judgement against you in a clean cut case of self defense? Probably not. Is the fact that you used Grandpa's double-barreled skeet gun going to keep you out of the bokey in a clean cut case of a murder? No.

But in a case where the facts aren't clear cut, the jury may well be going on gut feel. And if they are already anti-gun sheep, reloads and/or an ugly gun might just tip them over the edge. Why give the prosecutor and/or plaintiff's attorney any extra ammuntion, when perfectly fine factory ammuntion is available?

M1911

[Blackhawk]

That's interesting, WyldOne. It's also a window to unequal justice due to regional sentiments.

The prosecution would be doing everything possible to get people with that attitude ON the jury while the defense would be trying to keep them OFF the jury. Each side has only so many jurors they can eliminate without cause, and the defense would be hard pressed to select a gun tolerant jury.

If that anti attitude is more prevalent in, say NYC or Boston, the defendant would seem to have a greater risk of being convicted than if the jury was from gun friendly rural Texas.

[bastiat]

This thread has been kind of funny.

The original post was about hypothetical legal opinion being expressed instead of actual fact. And then for almost every post, hypothetical legal opinion was given as the reason for justifying the hypothetical legal opinion. The other post was about a handload that was not to spec and confusing to the forensic folks.

So I guess I'm still justified in saying there has been no proven cases of handloads or weapon choice being used as the determining factor against a person who has had to defend themselves with a firearm???

People can make these claims all they want, just like gun shop commandos can make magical stopping power claims about their favorite gun. But many members or lurkers may be reading this advice and take it as gospel. That's where the danger comes in.

[braindead0]

I think my biggest concern with handloads would be in the likely civil case. Juries are easy to sway, especially when all they'd be doing is costing you money (of course they don't see the connection between money and life)... Less guilt for them...

[Futo Inu]

What SteelyDan said.

Shades of gray in both a jury's decision to convict and in a prosecutor's decision to prosecute. Depending on the juror and prosecutor, said factors could be infintessimable (sp?), or negligible, or significant. Even if negligle, though, could be just enough to get the decision "over the hump" and unfavorable to you, the shooter. Suspect that there IS much evidence somewhere in trial transcripts of defendant's being blackened (or at least an ATTEMPT to blacken) by the prosecutor or plaintiff's lawywer due to these factors. Probably enough trial transcripts involving the subject to sink a battleship, if you're willing to obtain them and pore over them (or watch enough court TV). Not nearly as easy to research though (trial transcripts) with electronic searches as are appellate opinions or newspapaper/online media clippings. You can bet your life these factors COULD make a difference. Likely though to be extremely SMALL factors in the grand scheme of things in the criminal charge decision, for the average, sensible DA (as well as the jury's decision). Far more important are the other factors of reasonable threat of imminent bodily harm, etc. Extremist, anti-gun DA - different story. Plaintiff's lawyer in the civil case - different story. Every little bit helps. This is the reason I use .45 over 10mm for CCW. And I don't even have a lot of stuff to protect in a civil suit. Also, I might point out that jurors and prosecutors don't always express the precise reasons WHY they made the decisions they did. You'd have to interview the jurors and prosecutors, and try to get them to be honest (no way to force them to be honest about what influenced their decision either). So, it's EASY to research whether verdicts were guilty or not guilty or whether the decision is prosecute or not (and fairly easy to find out the type of gun used), a little harder to research in the trial transcripts whether the DA or plaintiff's attorney used the factors in trying to paint the defendant in a bad light, and nearly impossible to research whether the DA or jury used the factor in their decision.

[buzz_knox]

bastiat, do what you want to. I could care less. But once again, if you're relying on the lack of case law to justify your position, you're in for a rude awakening as to how the law really works. As an example, I had a case that revolved heavily around one issue: whether one guy cussed as opposed to another. We were able to convince a jury that the decedent's grandfather had confused our guy (who didn't cuss) with the decedent's employer (who did cuss). As a result, we got off the hook on a multimillion dollar wrongful death suit. Care to try and find case law that would support that decision?

I will say this. I'm a litigator by profession, focussing on defense work. But I know how to work a jury and I just about guarantee I could make use of handloads an issue that would survive long enough to get to the jury. And I could probably convince even some gunnies that the issue was relevant.

[fix]

When seeking legal advice, consult an attorney. We just heard from two.

Nuff said.

[EnochGale]

There are other lists besides TFL. On some of them, some experts who know
about jury simulation research have quoted studies that mock trials have
demonstrated that kind of weapon and presentation of weapon can influence
the jury.

There is a technical literature on this outside of Westlaw but in the human behavior and
law journals.

Judges would not rule on the sheer appearance of a gun. But it seems that
the appearance can influence the jury. Of course, the jury would see the gun.

IIRC correctly the effects are powerful in cases where the shooting is
iffy.

I would sugest a search or consultation with behaviorial experts who know this
sort of thing before leaping to conclusions. I don't mean just Ayoob but scholars.

[BigG]

This an example of the coulda shoulda woulda stuff that Mas Ayoob and others have been using to sell articles for years.

How many angels can dance on the head of a pin? Makes as much sense.

[bastiat]

Could. Possibly. Might. Maybe.

This is what the thread was about. And I am talking about actual cases in a court of law, not settlements or something we have no access to either way.

It's amazing that that you can ask almost any firearms related question here or on other good boards and get an answer. That's why I really like this place. How many people with a registered NFA weapon have used it in a crime? Get the answer here. Person defending themselves with a subgun? Get the answer here.

However, and I feel like one of my favorite talk show hosts here, ask a question about any concrete examples of reloads or 'assault weapons' being used as the determining factor in a self-defense case, the respons is the same conjecture I mentioned in the first post. I don't mean to slam or insult anyone who responded in any way, but most of the responses illustrate my initial post.

So here's my challenge:

Find me one case, civil or criminal, where the defendent has lost because they chose to use otherwise legal reloads or an 'assault rifle'.

I'm looking for any decided case where it can be shown that the reason the defendant lost an otherwised justifiable shooting case can be traced back to their choice of a legal weapon or ammo.

Not a case that was lost because he shot the attacker in the back seven times with reloads, or shot at a trespasser from 300 yards away. I need an example of a clear cut case of self defense that went against the victim because of his weapon or ammo choice.

First person to come up with a real case with documentation can have their choice of a 'I am not armed - Please don't hurt me' or "Your rights are like your muscles - exercise them" hat or shirt. A gift from me to the person who provides the firearms community with an actual case we can cite when we make these claims.

Why am I dong this? I'm not trying to insult anyone's opinion. I just don't think self-defense choices should be based on what people assume to be actual cases but really don't exist.

[fix]

I'm looking for any decided case where it can be shown that the reason the defendant lost an otherwised justifiable shooting case can be traced back to their choice of a legal weapon or ammo.

...and what our two esteemed colleagues have tried to explain to you is simple. You can't prove that beyond a shadow of a doubt by looking up the case. You would have to interview all the jurors to determine whether or not the prosecutor, waving the evil black rifle around the court room, influenced them. Even then, you can't be sure that the jurors were even aware that they were being influenced by it. Sheesh!!!

[bastiat]

fix, I can comprehend what they wrote. It's crystal clear.

However, people have been making claims based on their feeling and personal opinions.

Would you accept that from an anti-gunner position? Or would you want proof?

Me, I'd prefer the proof to conjecture. That's just me, I don't like being swayed by something that I don't know to be true.

That's why I'm making this offer. Heck, just give me one case where a person using a legal AR/AK or reloads in self defense lost their case. We can go from there.

When belleisles wrote 'arming america', we demanded proof. When VPC claimed barrett was shipping .50 bmg rifles to al queda, we demanded proof.

When someone on our side makes a claim, are they to be beyond asking for proof? Or should we just accept what everyone says because they're "good folks"? And then we can all repeat something someone else has claimed, until it becomes accepted as the truth, even though there was nothing to back it up??

[fix]

Not just because they are "good folks" , but because what they say makes sense. There are millions things that have never actually happened, but that does not eliminate the probability of them happening. Common sense dictates that in today's society, the use of evil black rifles for any purpose will, in a great number of cases, subject you to unfair treatment by the media, prosecutors, jury, etc, etc. It's just the way it is. Should it be that way? No. However, OJ shouldn't have gone free either.