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9/22/2017 12:11:25 AM
Posted: 7/18/2002 10:25:35 AM EDT
[Last Edit: 7/18/2002 10:26:42 AM EDT by bastiat]
I'm posting this to the boards I frequent in the hopes of either killing or proving these claims... If you've ever visited a firearms discussion board, you may have heard one of these sayings spouted as gospel: [i]"If you reload, don't use them for self defense or you will be sued or prosecuted by the DA."[/i] OR: [i]"I wouldn't use an AK-47 or AR-15 (or other 'assualt rifles') for self defense if I were you - you could be sued or prosecuted because of the weapon you used"[/i] I've seen these claims, too. But I've never seen any actual court cases to back up the claims. So I'm issuing the following 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 with an AR-15. I need an example of a clear cut case of self defense that went against the victim because of his weapon or ammo choice. And this doesn't apply to places where owning such a weapon was illegal in the first place, either. The first person to come up with a real case with documentation can have their choice of a [url=http://www.flashbunny.org/store/futureproducts.html]'I am not armed - Please don't hurt me' or "Your rights are like your muscles - exercise them" hat or shirt.[/url] This will be a gift from me to the person who provides the firearms community with an actual case that can be cited when making these claims.
Link Posted: 7/18/2002 10:31:26 AM EDT
Link Posted: 7/18/2002 10:49:54 AM EDT
[Last Edit: 7/18/2002 11:01:39 AM EDT by Aimless]
Link Posted: 7/18/2002 10:53:04 AM EDT
That's why I'm looking for actual cases. If people are making these claims, they should be making them based on something concrete. If they don't have an example of a case that proves this, the claim is false either false or an urban legend. It's the boils down to 'well it could happen'. If they say 'well, they may have settled because of it', they still have no proof. Just another claim.
Link Posted: 7/18/2002 10:59:52 AM EDT
The primary source of which I am aware for comments such as those you refer to is Massad Ayoob. He has made those statements in print several times. Since he spends a fair amount of his time serving as an expert witness at trial, I'm going to suggest that he's a well-qualified expert witness on the subject. And even if he is wrong, and only once in a blue moon is it an issue, why in the name of common sense do YOU want to be the guy with his tail in the crack? I'm sure that you could ask Mr. Ayoob by sending a letter to any of the magazines he commonly writes for, or through LFI in New Hampshire. Ask where he gets these ideas. My take on it is this: He might well be wrong, but he COULD be right. If he IS right, surely there are hundreds of guns available and hundreds of loads available to do the job without opening you up to this kind of emotional manipulation of the jury. So give it some thought, pick a nice All-American, patriotic, sincere gun, loaded with a powerful factory load with an innocuous name, and hope that when you are second-guessed at trial by 12 people that know NOTHING about guns, or self-defense, that you haven't done something stupid to make them less sympathetic. It's cheap insurance, and if he's wrong, it has cost you very little.
Link Posted: 7/18/2002 11:01:57 AM EDT
Originally Posted By Aimless: -I could shoot someone who broke into my house tonight w/ an AR -I get charged w/ a crime -the jury sees that I used an AR -the DA never mentions that I had an AR -the jury goes in the jury deliberation room and some dirty gun grabbing commie says "That damn Aimless he was just waiting to kill of some poor misunderstood burglar w/ his AR, string him up -jury comes out and says "Guilty!"
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You know, I'd be happy just to get a case where someone using an AR/AK in self defense was convicted or lost a case. At least that would be a start. But I have never seen one of those, either.
Link Posted: 7/18/2002 11:04:55 AM EDT
My only case to reference is where it didn't matter. But this is Texas and we have better laws here. Some guy in Dallas somewhere (just before the CCW laws were passed so that gives me a reference point to look this up if you really want to,) shot up a bunch of kids stealing his rims and tires in the middle of the night with what the news reported as an AK-47, more likely a SKS or Mak-90, but still the media made a big deal over it and how they should hang the guy because he emptied a big mag like 35 or more rounds into one kid. But they no billed him because in Texas you can shoot at night no questions asked. All the gun grabbers were real pissed about that one. So I know at least here what you chose to defend yourself or property with doesn't matter. California however I wouldn't try it.
Link Posted: 7/18/2002 11:05:32 AM EDT
Someone on TFL cited ayoob. However, forensics miscalculated the shooting distance based on a factory load as compared to a handload. It wasn't a case of 'the evil reloader made his rounds extra powerful because he has a thirst for blood' - it was a technical error. Heck, if I made the claim that I got 4500 fps out a 4 inch .45acp, would people go around repeating that claim, or would they ask for proof?
Link Posted: 7/18/2002 11:17:40 AM EDT
[Last Edit: 7/18/2002 11:18:39 AM EDT by DScott]
Re: Ayoob, ask him here: ayoob@attglobal.net Or better yet, buy his stuff here and find out for yourself: [url]http://www.shooterstore.com/acb/webpage.cfm?WebPage_ID=32&DID=122[/url]1
Link Posted: 7/18/2002 11:24:14 AM EDT
The issue was never that the gun made you guilty. The problem is that defense attorneys will do whatever they can to "muddy the water" and distract the jury from the matter at hand. If they can shift the issue from "my client is a criminal" to "your client is an irresponsible gun nut wacko", then his work here is done. As far as the civil suit goes, all he has to do is convince the jury of your intent. Every time he convinces them that the "assault weapon" or "hollow point dum-dum bullets" were unreasonable, you can move the decimal point one place to the right, when it comes time to write the settlement check. None of this will ever see the light of day in case law summaries. It will, however, be found in the human skin bound book that attorney's consult on how to win cases. I believe that the publisher was B. Elzebub and Sons.[:(!]
Link Posted: 7/18/2002 11:25:00 AM EDT
Originally Posted By Andrewh: My only case to reference is where it didn't matter. But this is Texas and we have better laws here. Some guy in Dallas somewhere (just before the CCW laws were passed so that gives me a reference point to look this up if you really want to,) shot up a bunch of kids stealing his rims and tires in the middle of the night with what the news reported as an AK-47, more likely a SKS or Mak-90, but still the media made a big deal over it and how they should hang the guy because he emptied a big mag like 35 or more rounds into one kid. But they no billed him because in Texas you can shoot at night no questions asked. All the gun grabbers were real pissed about that one. So I know at least here what you chose to defend yourself or property with doesn't matter. California however I wouldn't try it.
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35 rounds into one kid? what kinda boat-load drum magazine did he have?
Link Posted: 7/18/2002 12:02:25 PM EDT
I agree with Aimless. I think you will be hard-pressed to find that sort of a case where you can concretely say that the person lost [i]only[/i] because of the weapon/round used. The problem is that in a state/locality where it is legal to posess the weapon/round used, the jury could not say "we found guilty because he used an eeeevil gun". I am assuming that the person in the scenario you are looking for is on trial to determine whether or not the shooting was justified/defensable, not for any firearms violation. The use of weapon/round may have swayed the jury one way or another, but I don't think it would be documented that a person was convicted [i]only[/i] because he used an un-PC weapon that is perfectly legal to posess. What I'm trying to say is that if you shoot someone and the use of deadly force is completely defensible (and for argument's sake also assume only two shots to center mass), then the outcome of your trial should be the same whether you use an AR or a .38 revolver. Take note of the word [b]should[/b]. Take that for what it's worth...I'm only an armchair lawyer. Thanks for bringing this up though, it's an interesting and important topic.
Link Posted: 7/18/2002 12:12:49 PM EDT
Originally Posted By Andrewh: But they no billed him because in Texas you can shoot at night no questions asked.
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Uh, Andrew, you might want to invest in a little legal advice regarding the Texas penal code before you start randomly blasting bad guys @ night. Unless you want a large situationally gay cellmate.
Link Posted: 7/18/2002 2:47:06 PM EDT
Originally Posted By Andrewh: My only case to reference is where it didn't matter. But this is Texas and we have better laws here. Some guy in Dallas somewhere (just before the CCW laws were passed so that gives me a reference point to look this up if you really want to,) shot up a bunch of kids stealing his rims and tires in the middle of the night with what the news reported as an AK-47, more likely a SKS or Mak-90, but still the media made a big deal over it and how they should hang the guy because he emptied a big mag like 35 or more rounds into one kid. But they no billed him because in Texas you can shoot at night no questions asked. All the gun grabbers were real pissed about that one. So I know at least here what you chose to defend yourself or property with doesn't matter. California however I wouldn't try it.
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I remember that case because I was in TX at the time. The way I remember it is that in TX you can use deadly force to protect your property at night, even hubcaps. These guys were stealing his hubcaps, he comes out with a Mini14 and shoots and kills one and shoots up the car with the other guys in it. He even left the scene himself and was arrested when he came back or when they caught up with him. Still, no billed. The other case that stands out was the first CCW shooting where a delivery driver has a mirror bump with a guy and starts wailing on him at a traffic light. One shot, guy dies, no bill. jd1
Link Posted: 7/18/2002 2:47:33 PM EDT
[Last Edit: 7/18/2002 2:49:00 PM EDT by Andrewh]
texasshark- Well not just for anything, but here is the law he got off on. A person is justified in using deadly force against another to protect land or tangible, movable property: (1) if he would be justified in using force against the other underSection 9.41; and (2) when and to the degree he reasonably believes the deadly force is immediately necessary: A.to prevent the other's imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or (B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and (3) he reasonably believes that: (A) the land or property cannot be protected or recovered by any other means; or Valkyre- I don't remember, heck he may have even reloaded. I just remember it was more than one of my mags for my AR into one kid.
Link Posted: 7/19/2002 3:42:48 AM EDT
[Last Edit: 7/19/2002 3:44:34 AM EDT by texashark]
Andrewh: You hit the nail on the head with your research. Texas is pretty generous about what a property owner can do at night. However, there are some limits as you can see. You have to "reasonably believe" deadly force is necessary to protect your property. But, I'd rather have a good jury behind me than all the law in the world. Take care, griff btw andrew, where in Texas are you located? I'm in Gilmer, in East Texas.
Link Posted: 7/19/2002 4:28:47 AM EDT
You want to read Aayob, he is the professional witness you want in a shooting. As for reloads, it was a question of comparison. You can not compare as there is no proof of uniformity. Also he says to keep 5 rounds of the box you use in your weapon. that can be used to calculate the range etc. Also it is the stupid things that give you the most headache. There was one that the showed a cop said jokingly'I am going to kick some ass tonight' He gets in a fight charged with excessive use of force and they bring up that statement. He gets it for intent. As an assault rifle, it is used by the prosecution, to show you wanted to kill lots of people, one shot was not enough, blank blank. Remember that in most places the jury is not going to understand assault rifles. Also you put more on the head of your lawyer. Having to prove everything. I was in a suit that we had lots of good stuff abainst the defendent, but it was so complex and overwhelming it would have drug the case out longer than 3 weeks it ran and confused the jury.
Link Posted: 7/19/2002 5:44:28 AM EDT
Bastiat, you beat me to it, though I wasn't going to offer a prize. Every week there are various posts that caution against using re-loads, certain types of hollow point ammo, and AR type rifles (or even having NRA stickers on your car). The prosecutor will nail you...the jury will find you guilty...you will have to pay huge civil fines. They also neglect to provide any evidence that this happens. Aimless is right, a lot probably dpends on where you are, who the prosecutor is, and who the judge is. There is no absolute consistency. That being said, I am kind of tired that these kinds of things are constantly repeated. I know that Mas Ayoob has participated in numerous trials as an expert witness, but he is not the only authority on this subject. I am sure that a prosecutor or plaintiff's attorney will use all sorts of tactics to paint a negative picture of the defendant. Hopefully, the defendant's attorney will use the same tactics to counteract this. Consdier the following totally made up example: The prosecutor points out that the defendant was using an AR "assault rifle" with "nasty" .223 FMJ. The defense attorney counters with how much research the defendant did into finding a weapon for home protection that would be effective and also not overpenetrate...how much concern he had that his neighbors not be put at risk. It is all a matter of perception. The jury will hopefully look at the entire circumstances. This makes it critical that someone involved in a shooting hire a good defense attorney, preferably one that has handles this type of case. They will be able to bring in all sorts of experts.
Link Posted: 7/19/2002 6:46:54 AM EDT
texashark- I am about 30 min north of dallas. Never heard of Gilmer, but I have only passed through east Texas.
Link Posted: 7/19/2002 7:29:02 AM EDT
Fian, I really don't think I'm ever going to have to give out the free stuff anyway. These claims have been going around for years, you would think there would be at least one case to cite by now. Maybe I need to open an 'urban legends' section of my site...
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