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Old April 20, 2011, 02:18 PM   #1
imp
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Court Case Evidence.

Normally, I don't stray into this section of TFL, but just to satisfy personal curiosity, I thought I would ask if anyone has documented, available information of court cases won or lost because of some gun owners firearm type or ammunition selection.

I keep hearing "don't use reloads, dont use hunting ammo, dont use a single action, dont use a semi-auto rifle, or you wind up in jail" type statements from well meaning folks who have not one scrap of evidence to back it up.

If you can help their case, please let us know.
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Old April 20, 2011, 02:21 PM   #2
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Guess I should clarify just a little bit. I'm asking about self-defense shootings where the shooter actually got in some type of trouble due to equipment they used, rather than reason for the shooting or result of the shooting.
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Old April 20, 2011, 02:30 PM   #3
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If you'll run a search in this forum on "reloads," you'll find a few threads on this. Those threads will almost certainly contain other links to other discussions of this.

I don't have time to dig up all the cases, but I do recall that one case in particular involved a man named Daniel Bias. There's a post in one of the other threads by fiddletown in which he put a link to Mr. Bias' story.

The objection to reloads is not that someone gets into trouble for using them per se, but that their use unduly complicates an already perilous situation.
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Old April 20, 2011, 02:30 PM   #4
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The Harold Fish defense was made much more difficult due to his decision to carry a 10mm firearm rather than a 9mm or .45 cal. The state argued that he chose this chamber size to kill a human not for use against wild animals in the area which was why he claimed to carry on these hikes/walks/jogging excursions.

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Old April 20, 2011, 02:35 PM   #5
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Yep, folks - the best answer is to search on this debate. Also, if you go to Glocktalk - Mas Ayoob moderates an expert forum - under the GATE set that has loads of this.

So, I beseech posters to spare me the cliched responses. We have a firm base of all the past arguments.

Someone might post the threads here and elsewhere. Fiddletown has written some excellent summaries.
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Old April 20, 2011, 02:39 PM   #6
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This has been discussed, both here and on other forums, innumerable times. One of the problems with asking for "proof" in the form of case citations is that cases become citable precedent only when they have gone through the appellate level. And appeals may be based on technical issues rather than a factual issue such as what kind of ammo was used and how the way that information was presented may have influenced a jury.

The Harold Fish case was one where it is known that ammunition choice played a part in his conviction. There is another case, the name of which escapes me, in which a man was convicted of shooting his wife. His defense was that she committed suicide. The defense attempted to introduce an expert witness to testify about powder residue evidence. The problem was, the man reloaded his own ammo and the gun used in the homicide was loaded with handloads, not factory ammo. The prosecution was able to bar the expert testimony on the basis that there would be no way to document that any ammo the expert tested would be the same as what was in the gun at the time of the shooting.

There is an attorney who posts here (I think) and on other forums as "fiddletown." He has written extensively on the evidentiary problems created by the use of handloads.

I'm not a lawyer. I'm, also not wealthy. I reload for practice and competition, but for self defense carry I use factory ammo. I don't shoot much of it, so the out-of-pocket cost compared to handloading premium JHP bullets is negligible, especially compared to the peace of mind it buys.
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Old April 20, 2011, 02:47 PM   #7
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Apparently, I couldn't resist a quick search. Here's a fairly recent thread on this: http://thefiringline.com/forums/showthread.php?t=444604

Dig through it and you'll find links to old threads, as well as the arguments on both sides of this issue.

Edited to add: AB, the suicide case was Daniel Bias. In the thread I linked, fiddletown provided a link to an article on it by Ayoob.
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Old April 20, 2011, 03:09 PM   #8
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Quote:
Originally Posted by Spats McGee
Edited to add: AB, the suicide case was Daniel Bias. In the thread I linked, fiddletown provided a link to an article on it by Ayoob.
That's the one.

Thank you.
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Old April 21, 2011, 02:30 PM   #9
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Quote:
Posted by imp: Guess I should clarify just a little bit. I'm asking about self-defense shootings where the shooter actually got in some type of trouble due to equipment they used, rather than reason for the shooting or result of the shooting.
I presume that you do not mean that you are asking about shootings in which the shooter is charged with weapons violations after having used used an NFA firearm or an illegal import or a weapon that he has stolen...

Assuming that the answer is "no, of course not", then more clarification would ordinarily be necessary. How could the type of weapon be of any importance if the shooting was justified?

The real issue is weather the equipment used could influence, one way or the other, the judgment of those charged with investigating a shooting, or with deciding at trial whether it was justified.

To answer that, and to address your original question,
Quote:
I thought I would ask if anyone has documented, available information of court cases won or lost because of some gun owners firearm type or ammunition selection.
one cannot draw any really valuable conclusions from looking at actual cases. For one thing, there aren't that many self defense cases tried, and the number of variables with the potential to influence the outcome each one prevents one from reliably ascribing the outcome to any one factor--there are just "too many unknowns and too few equations", as it were. For another, each case is decided upon the basis of the totality of the evidence, and no one can interview each and every juror in a sufficient number of trials to try to find out how and to what extent each piece of evidence may have influenced his or her judgment.

But there is another way to assess the influence of equipment type on jurors' thinking: simulation. That's how strategies and methods are developed for complex systems and process where the number of actual occurrences is insufficient to enable the separation of the effects of multiple variables.

This has been done for the subject at hand as it concerns the type of weapons used, using mock juries. See this. My non-scientific synopsis is that "mean looking guns" are unlikely to benefit a defendant in court. Perhaps Glenn E. Meyer has other material on it. I believe that that kind of study is much more useful than looking for "evidence" among anecdotal accounts of court cases.

Regarding handloads, this has been covered ad nauseum, but the subject is complex, technical, and to some, quite confusing. For your convenience, I'll try to distill it to the very basics.

Whether or not to use hand loads for self defense is a personal decision, pure and simple. In a nutshell, here are two primary aspects.

One has to do with whether one wishes to choose to accept or to mitigate the risk of being denied, on the basis of certain very basic principles having to do with the admissibility of scientific forensic trace evidence, gunshot residue evidence that, in some instances, could prove to be critical exculpatory evidence in a trial involving a shooting in which other evidence is sparse. The likelihood that that risk will materialize is low, but the potential consequences are extremely severe. The cost of mitigation is nil. There is plenty of in depth discussion on the subject, for those who want more detail, but that is the crux of the matter.

The other has to do with the possibility that hand loads may be used by the prosecutor as an indication of state of mind. The fact is, even some kinds of factory ammunition carry the same risk. It is difficult to assess that risk, and unlike the first aspect, this one can be argued in court should the need arise. But--as in the case of Glenn E. Meyer's study of the different types of weapons used, a jury may nonetheless be influenced adversely.

The consensus recommendation of the legal experts on the better gun boards, and in the literature, on the first risk is to not use hand loads. The most common recommendation on the latter is to use the same ammunition that is used by the local police, if one can.

I hope this proves helpful.

Last edited by OldMarksman; April 21, 2011 at 02:54 PM. Reason: Clarification and completeness
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Old April 21, 2011, 06:02 PM   #10
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I carry and use what I think is best, and I am not in the least worried about lawyers or a court. Although it has or might have been brought up in one case I am persuaded that a good defense attorney can deflect those arguments. Fish just had a lousy attorney.

I personally know experts whose testimonies would shoot down such arguments regarding mods and ammunition.

However, if it is a concern then act accordingly.

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Old April 21, 2011, 06:18 PM   #11
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Quote:
Posted by JerryM: Although it has or might have been brought up in one case I am persuaded that a good defense attorney can deflect those arguments.
First, what may or may not have been brought up in prior cases is not a measure of what may influence future cases.

Second, you apparently put little stock in Glenn Meyer's mock jury experiments; one can argue the merits about an M4 carbine lookalike if the opportunity presents itself, but if a sinister looking "black rifle" is entered into evidence as the "murder weapon", and if the prosecutor says nothing about it other than to ask about ballistics evidence, that "good defense attorney" will have no "argument" to "deflect"-- the jury will draw its own conclusions.

Third, no attorney can cause to be admitted scientific forensic trace evidence that does not meet the rules for admissibility.
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Old April 21, 2011, 06:24 PM   #12
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I have a thread up on Glock Talk right now asking for only specific case examples of where a 4-4.5 pound Glock trigger used in a justified self-defense shooting resulted in a civil judgment.

Despite my repeated admonitions, I had a few wise-guys chime in with the same old arguments we've all heard again and again. No-one could provide a single example, except one guy who named some case out of FLA by the name of Stevens vs Pulins. I have no details on that case, however. I suppose I would need a PACER account to search for it.

Bottom line, it is an oft-debated subject with strong opinions on both sides. My own view is that the best way for me to avoid liability is not to shoot anyone that isn't threatening innocent life in the first place, and not to make any mistakes in the process should that dreadful day ever come.

For me, that means having a roughly 4-4.5 pound trigger. Quite simply, I am more accurate and, in my view, more safe that way.

Last edited by maestro pistolero; April 21, 2011 at 06:29 PM.
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Old April 21, 2011, 09:14 PM   #13
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Stevens vs Pulins

I will try to check PACER tomorrow. I can't remember my password right now, but I have it at work. Nothing's coming up on Westlaw for me, though.

Edited to add: OldMarksman has summed the issues up nicely.
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Old April 22, 2011, 12:28 AM   #14
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Thanks. I'm curious about it.
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Old April 22, 2011, 08:40 AM   #15
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I can't find it in PACER. I've run it under "Pulins," and "Pullins." I did not run it under "Stevens," just because that's such a common name, and because PACER returns both plaintiffs and defendants, so it shouldn't matter which I put in. I couldn't find any more information on it in in the GlockTalk thread to help me, either.

Assuming the name of the case is right, Stevens v. Pulins, it's a civil case. Could be civil rights, given the issue we're discussing. Could also be in state court. I'll search there next.

Edited to add: No luck in the Florida State Courts, either.

Last edited by Spats McGee; April 22, 2011 at 08:58 AM.
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Old April 22, 2011, 08:44 AM   #16
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Quote:
Originally Posted by JerryM
. . . .I personally know experts whose testimonies would shoot down such arguments regarding mods and ammunition.
Only if they're allowed to testify.
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Old April 22, 2011, 08:55 AM   #17
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I personally don't think the Bias case is a terribly good example. His wife had previously attempted to commit suicide, and was mentally unstable. His defense was fairly implausible in my opinion, GSR tests or no GSR tests, and I don't think the jury verdict was inconsistent with the evidence. Bias, in a light most advantageous to him, committed an act of grotesque negligence in not securing his firearms from his wife. One could very reasonably argue that he backed into his story of reduced handloads only after realizing that he had failed to anticipate the police would conduct GSR tests and having to concoct a rationalization for why his wife had none on her hands.

That being said, I fail to see any particular advantage in using handloads for self defense and wouldn't even consider using them in that context. I wouldn't use a firearm that doesn't function reliably with a wide variety of factory ammunition and have yet to see any evidence whatsoever of any terminal ballistics advantage of reloaded cartridges over factory loadings. And even if you concede that reloaded ammunition *may* have a slight advantage in accuracy over factory ammunition, any shooting at which the accuracy of the ammunition is a factor is going to be hard-pressed to be described as a "self-defense" shooting.
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Old April 22, 2011, 10:24 AM   #18
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Quote:
Originally Posted by imp
...I thought I would ask if anyone has documented, available information of court cases won or lost because of some gun owners firearm type or ammunition selection....
[1] The legal issues regarding the use of handloads for self defense have been discussed here. See:

http://thefiringline.com/forums/showthread.php?t=423771

http://thefiringline.com/forums/showthread.php?t=391656

http://thefiringline.com/forums/showthread.php?t=394682

http://thefiringline.com/forums/showthread.php?t=397127

[2] If you're going to need to tell your story to a jury, in my view, certain types of modification, basically things like disabling a safety device, could make things tougher for you. These issues have been discussed at great length on this board. See the following threads:

http://www.thefiringline.com/forums/...d.php?t=372759

http://www.thefiringline.com/forums/...d.php?t=366434

http://www.thefiringline.com/forums/...d.php?t=388901

http://www.thefiringline.com/forums/....php?p=3586536

Quote:
Originally Posted by imp
....I keep hearing "don't use reloads, dont use hunting ammo, dont use a single action, dont use a semi-auto rifle, or you wind up in jail" type statements from well meaning folks who have not one scrap of evidence to back it up...
The threshold question is always whether any of these factors (e. g.,modified gun, handloaded ammunition, etc,) were even present in past cases. How often have certain guns (or handloaded ammunition) been used in an incident in which self defense was claimed and which went to trial?

Historical research is helpful only if there's sufficient historical data. If the question is something like, "Is a private citizen who shoots someone and claims self defense more likely to be charged if he used a modified, or certain type of, gun or handloads compared with a stock gun or factory ammunition?", or "Is a private citizen who shoots someone and claims self defense more likely to be convicted at trial if he used a modified, or certain type of, gun or handloads compared with a stock gun or factory ammunition?", the availability of useful data depends on (1) a large enough sample of private citizens having shot someone in claimed self defense; and (2) a large enough subset of those private citizens having used a modified gun, or a certain type of gun, or handloads. I suggest that the vast majority of people who keep guns for self defense aren't enthusiasts and use stock guns and commercial ammunition. Indeed, even many of the members here, who are enthusiasts, use stock guns and commercial ammunition for self defense.

Just because there is insufficient historical data doesn't mean that professionals can't draw reasoned conclusions about how likely a particular result might be under certain circumstance. Indeed, it often happens in the practice of law that a particular issue of interest has not previously been addressed by an appellate court, and one must make a reasoned judgment without the guidance of on point precedent.

Things that go on in trials don't routinely hit the legal publications. In general, only decisions of an appellate court get published. So it would be very unlikely to see a case in which an issue with a lightened trigger showed up in published reports of appellate courts. There are very few cases of self defense in which a gun is actually fired; and only a few of those involved a modified gun; and only a few of those wind up in trial; and only a portion of those go up on appeal.

However, we have reasons to believe that things like ammunition or type of gun used can have an effect on the way members of a jury will view matters and therefore on whether, or how, they can be convinced. For example:
  • From post verdict interviews of some of the jurors who convicted Harold Fish in Arizona, we know that the ammunition Fish used played a part in the jury verdict. (Fish did win his appeal, a new trial ordered, and the DA chose instead to dismiss the charges.)
  • Jury simulation studies as describe in this article suggest that the type of gun used can also affect the perceptions of a jury. (The author, Dr. Glenn Meyer, is a moderator here.)
  • I have personal knowledge, based on my participation in post verdict interviews of jurors, of how various things can affect how a juror views and evaluates evidence.

As Nassim Nicholas Taleb points out repeatedly in his books Fooled by Randomness, the Hidden Role of Chance (Random House, 2004) and The Black Swan, the Impact of the Highly Improbable (Random House, 2007), "Absence of evidence is not evidence of absence." Taleb, a securities trader and professor at the University of Massachusetts, provides some interesting and useful insights into strategies for dealing with rare events.

Quote:
Originally Posted by csmsss
I personally don't think the Bias case is a terribly good example. ... His defense was fairly implausible in my opinion, GSR tests or no GSR tests, and I don't think the jury verdict was inconsistent with the evidence...
One of the primary reasons Daniel Bias was convicted was that expert opinion he offered corroborating his exculpatory story wasn't accepted into evidence because the gun in question was loaded with his handloaded ammunition.

So let's take a look at Bias.

[1] The case of Daniel Bias deals with the admissibility of GSR test results. It was not a self defense case. But that doesn't matter for our purposes. What is significant to us in Bias is a matter of the rules of evidence, and those rules and their application are the same in all types of cases.

Daniel Bias was charged with, and ultimately convicted of, killing his wife. He claimed she committed suicide. Part of the prosecution's case was that test firings of commercial ammunition bearing the same headstamp as the round fired showed GSR deposits on the target at the distance from which Bias claimed his wife shot herself. There was, however, no GSR "tattooing" on Bias' wife's body, and the prosecution argued that showed that Bias' wife was shot at a greater distance than (1) Bias claimed; and (2) was compatible with suicide.

Bias claimed that the gun his wife used to shoot herself with was loaded with very light handloads he prepared for her self defense use. They were very light because Bias' wife was sensitive to recoil.

Test firings by an expert engaged by Bias of ammunition that Bias claimed matched the loading of the round that killed his wife showed no GSR deposits on the target at the critical distance. However, the judge would not allow those test results to be entered into evidence on the grounds that there was insufficient foundation to establish that the ammunition tested did indeed match the death round.

[2] The lesson for us from Bias is that if we fire a gun in self defense and it becomes necessary or desirable to our legal defense to look to GSR test evidence to help corroborate our story, e. g., our distance from the alleged assailant when we fired, we might be out of luck if we used handloaded ammunition.

That might not come up in every self defense case, but we have no way of knowing in advance if it might come up in ours, if we're ever unlucky enough to be in that position. But it does come up as shown in this post on another board by Marty Hayes (who's a member here as well).

[3] The result in Bias is actually consistent with basic evidentiary principles.

Say you may want to introduce GSR evidence to corroborate your story about how the event took place.

You therefore engage an expert to conduct tests reproducing the circumstances of the event. You want the test results to validate your story of how things took place. If you're claiming self defense, you're hoping that your expert witness can take ammunition which can be established to be substantially identical to the ammunition you shot the alleged attacker with under conditions replicating the shooting as you have contended it took place and produce GSR similar to the GSR produced at the scene. And that will, you hope, allow your expert to testify that in his opinion the shooting took place as you had described it.

That can only work, and you can get the sort of expert testimony you need in your defense, if the judge can be satisfied that the ammunition tested by your expert was substantially identical to the ammunition with which you shot the guy you claim attacked you.

If you used handloads, the only evidence you can offer to support the claim that the ammunition tested was substantially identical to the ammunition used in the claimed self defense event will be your testimony to that effect. Your testimony on that point would be suspect because you are vitally interested in the outcome and there can be no independent corroboration of your claim as to what was in the ammunition you used to defend yourself with.

On the other hand, if you had loaded your gun with Federal HST, 230 grain, .45 Auto, identifiable from the fired cases, the rounds remaining in the gun, recovered bullets and the partially used supply at the defendant's residence, the you could show that Federal Cartridge Company manufactures large quantities subject to certain quality controls to a certain degree of uniformity. In addition, Federal Cartridge Company is a non-involved third party making ammunition for sale to the general public. That would most likely establish an adequate foundation to secure admission into evidence of GSR test results of exemplar Federal HST, 230 grain, .45 Auto ammunition in support of your expert's opinion.

It's all about being able to perform a test under conditions that a judge can be convinced mirror the event sufficiently to permit an expert to draw valid conclusions about the event from the test results.

Quote:
Originally Posted by JerryM
...Although it has or might have been brought up in one case I am persuaded that a good defense attorney can deflect those arguments...
Glad you have so much confidence in attorneys. But I need to tell you that there are at least two attorneys in this thread who understand that, "Though I speak with the tongues of men and of angels, ..." sometimes the jury will not be moved.

Making a good argument and having it accepted by a judge or jury are two different things. The only argument that is sure to "win" is the one I don't have to make.
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Old April 22, 2011, 10:27 AM   #19
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Quote:
Originally Posted by imp
I keep hearing "don't use reloads, dont use hunting ammo, dont use a single action, dont use a semi-auto rifle, or you wind up in jail" type statements from well meaning folks who have not one scrap of evidence to back it up.
First of all, the evidence you are asking to see would be extremely difficult to collect. Most of the issues you've raised would only come up during the actual trial, so they won't show up in Westlaw or Lexis-Nexis searches that only deal with appellate cases. Second, most of the cases are prosecuted by the state rather than the Feds, which means that they won't show up in PACER either. Third, many of the issues would be motions and evidentiary issues that you could basically only find by going to the specific courthouse and searching the court records yourself.

So unless you actually happen to be working the particular case where the issue comes up or it is a case that gets intense media attention (like the Harold Fish case), you are unlikely to even hear about it or be able to find it in a database.

And even when it does appear in the database, the information you are looking for isn't always there. For example, in the Daniel Bias case, we know that handloads being excluded from evidence was an issue because Massad Ayoob worked on that case and wrote about it. However, when I put "Daniel Bias" into a database of legal opinions, all I get is State of New Jersey v. Daniel Bias, 704 A.2d 1297 (N.J. 1998). The entire contents of that case are: "Leave to appeal is granted, and the matter is summarily remanded to the trial court to set terms and conditions on bail pending appeal."

So as you can see, even though this is one of the few cases we know about where getting expert witness testimony of gunshot residue for handloaded ammo was an issue, you wouldn't necessarily know it from looking at the database. And you can see the difficulty Spats McGee is having finding a case that he DOES have a name for.

The best way I know of, short of going to the courthouse and sitting through a several thousand "I didn't do nuttin'" cases in order to hear the one self-defense case that interests me, is to listen to guys who do that for a living as expert witnesses in firearms related matters like Marty Hayes or Massad Ayoob. I may not always agree with their analysis of the issues; but they at least know where to look since they were there when that issue came up.

Quote:
Originally Posted by cssmss
I personally don't think the Bias case is a terribly good example.
People get wrapped around the issue of whether or not Bias was guilty; but from a legal perspective (particularly a handloads in self defense perspective), that isn't relevant at all. The key point is whether Bias could get his own expert witness testimony regarding his handloads admitted into evidence - and he couldn't. And the reason he couldn't was because the use of handloads gave the judge a good legal basis to exclude that evidence.

At that point, the only question is whether it seems reasonable that GSR testing may be an important factor in a self-defense shooting.
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Old April 22, 2011, 10:46 AM   #20
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Quote:
Originally Posted by fiddletown
....there are at least two attorneys in this thread who understand that, "Though I speak with the tongues of men and of angels, ..." sometimes the jury will not be moved....
Now that Bart has joined the thread, there are three.
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Old April 22, 2011, 01:14 PM   #21
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As this issue seems to come up quite regularly, should we create a thread (to be stickied) for a "Reloads, Handloads, and GSR Evidence in SD Shootings?" We could just archive links to all of the relevant threads in one spot that way.
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Old April 22, 2011, 02:25 PM   #22
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Pulins vs stevens probably is a civil case as that's what I was asking for. He mentioned FLA. Thanks
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Old April 22, 2011, 02:33 PM   #23
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[First, what may or may not have been brought up in prior cases is not a measure of what may influence future cases.

Second, you apparently put little stock in Glenn Meyer's mock jury experiments; one can argue the merits about an M4 carbine lookalike if the opportunity presents itself, but if a sinister looking "black rifle" is entered into evidence as the "murder weapon", and if the prosecutor says nothing about it other than to ask about ballistics evidence, that "good defense attorney" will have no "argument" to "deflect"-- the jury will draw its own conclusions.

Third, no attorney can cause to be admitted scientific forensic trace evidence that does not meet the rules for admissibility.]

I still think it is hokey, but each do as he will. I am not going to worry about it.
I have carried handloads because they got the velocity with the bullets I wanted to use. Never worried about lawyers or courts. I don't let folks like Massad Ayoub cause me any concern. He just needs to wow the folks who read him.

Regards,
Jerry
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Old April 22, 2011, 02:33 PM   #24
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Quote:
Originally Posted by maestro pistolero
Pulins vs stevens probably is a civil case as that's what I was asking for. He mentioned FLA.
I just tried searching Fastcase, to which I subscribe, and came up empty. I searched both all courts nationally and just Florida state courts. My search would have picked up either civil or criminal cases.

It's possible that this was a trial court case that never made it to a court of appeal. In general, only matters reaching a court of appeal are reported in these national data bases. Purely trial court matters are difficult, if not sometimes impossible, to track down.
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Old April 22, 2011, 02:46 PM   #25
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Quote:
Originally Posted by JerryM
...Never worried about lawyers or courts....
Good for you. Whether or not you want to bother learning about how the legal system works and whether there are things you can do to avoid unpleasant results if you happen to get involved with the legal system is entirely up to you. Of course, folks who carry or have guns for self defense probably are a little more likely than most other folks to come into contact with the legal system. But in any case, it won't be my problem.

I know that a number of my colleagues made a good deal of their money trying to sort out messes for folks who never worried about lawyers or courts -- messes, and legal expenses, that perhaps could have been avoided or minimized with a little care or attention. But at least that lack of care and attention helped enrich my colleagues.
Frank Ettin is offline  
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