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Old March 27, 2015, 02:35 PM   #51
Frank Ettin
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Quote:
The argument is that using a scary gun could land a person in jail. This argument cannot be true unless it has happened....

Two hard facts remain:

STILL no one has been able to point to a case where a person acted legally in home defense but was nevertheless convicted because of their gun....
You have cautioned readers about opinions by people who "do not have a clue." You obviously do not have a clue, and so far two attorneys and one professor of psychology who has studied juror perception have explained why you do not have a clue.
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Old March 27, 2015, 03:05 PM   #52
Andrew Wiggin
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Theohazard,

Yeah, I hadn't seen their posts yet. I stand by my statements, though.

In Arizona and other Castle Doctrine states, people just don't often go to trial in home defense cases. Could a scary gun influence a jury? Sure. But to get to trial in the first place, one needs to be involved in a questionable use of force in some states. In other states, even obvious defense shootings go to trial.

There are obviously rational arguments on both sides of this, and your decision will likely be influenced by your location. I don't consider the added risk of driving a red car to be enough to convince me to get a color I don't like (I actually prefer gray) nor am I convinced that the small risk of a negative perception to a jury that I'll probably never see justifies the use of a less effective defense tool.
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Old March 27, 2015, 03:32 PM   #53
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Of course, any competent defense attorney will have no trouble turning those claims right back around on the prosecutor: “Ladies and gentlemen, my colleague has chosen to insult your intelligence by playing on your emotions and attempting to frighten you with a simple tool. I know that you are intelligent and rational and you are not inclined to be manipulated so easily. You heard the judge’s instructions, and you are fully aware that the only matter at issue in this court is whether my client acted in a legal manner.” Or something to that effect, anyway. I’m certainly no attorney myself.

More importantly, your case has to make it to a court room before you can worry about what the prosecutor will say. For that to happen in most districts, the shooting has to be somewhat questionable. In most jurisdictions the law is very clear that you have a right to defend yourself within your own home. If you shoot someone who broke into your home and you don’t go and make some stupid statement to the police it is unlikely that the state will even pursue charges, let alone secure an indictment.
1st Paragraph - there is clear evidence that a defense lawyer trying to make an excuse for a negative characteristic may in fact enhance the prosecution's argument in the juror's mind.

2nd quoted paragraph - how in the world can you guarantee that a shoot won't be questionable? We have cases where the defendant claims that he or she thought the action was reasonable but then they went to court. When they go to court, the case is definitionally questionable. Then the jury factors (see referenced book) click into the decision process. Telling a jury that the prosecution is trying to manipulate them but you are not. See a problem with this. Do you have any idea of what juries take away from lawyer's statements and judges' instructions? You would be horrified.

To our humble readers - please take advantage of numerous professional resources on jury decisions and self-defense law. It may be reasonable to use X, Y and Z but you need a lawyer who understands the processes Frank, Spats and I discuss. A throwout argument like in the OP is not a sure fire fix to your problem.

Check out the Armed Citizen's Legal Defense Network for instance.

http://armedcitizensnetwork.org/
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Old March 27, 2015, 03:56 PM   #54
Andrew Wiggin
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Glenn, remember the context is home defense, not armed personal defense in public. There are certainly some jurisdictions where a person is very likely to see a trial if they offer any resistance whatsoever to a crime, even in their home. Most home defense shootings in the free parts of the country never even make it to trial. The ones that do usually involve actual wrongdoing or grievous mistakes at the very least.

You're right that the aspartame of a fun can influence a jury but a competent attorney can address those concerns. If you find yourself at trial, though, you are likely to be more concerned about the facts that put you in that court room to begin with.

Use a legal weapon and act in a legal manner. Don't ever talk to cops. Train to survive, no matter what to you choose.
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Old March 27, 2015, 06:39 PM   #55
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Quote:
Originally Posted by Andrew Wiggen
The argument is that using a scary gun could land a person in jail. This argument cannot be true unless it has happened.
However, that isn't the proposition to which you've found opposition here.

The scary gun itself will not land you in jail. After a shooting, you may come into contact with POs, prosecutors and assistant prosecutors, a judge and jurors. The perceptions and judgments of each of them may influence your fate.

Quote:
Originally Posted by Erich, more than six years ago
Former prosecutor, longtime defense lawyer here.

First of all, I'm not able to see your photo on this machine and thus am commenting in general and not on your specific weapon.

It depends on who catches the case. Some cops are offended by "tactical" weapons, as are some prosecutors and grand jurors. The attitude of the cops and prosecutors involved in reviewing your shooting will certainly be reflected in the treatment that your case receives. Your appearance, the part of town in which you live, your connection to the person who was shot, the weapon that you used, your profession, your employment status, your attitude, and all the information about the person shot - these are all things that will be in the background when the state actors review your case and decide how to handle it. So will the overall political climate of your locale - this will also affect how the grand jury views your case after the shooting.

Your use of a "tactical" gun is not likely to affect a defensive shooting case in which Charles Manson bursts into your five-year-old's birthday party in the middle of the afternoon wielding an RPG and singing "Helter Skelter." But, in my considerable experience working on homicide cases, things are rarely so clear. Like Mas Ayoob advises regarding the use of handloads in defensive weapons, it behooves one to think before adding in another potentially detrimental variable.





I own EBR-type things, but my "house rifle" is a lovely walnut-stocked Navy Arms 92 short rifle levergun . . . a "cowboy gun." Concern over appearances played a part in my selecting that gun for that role, even though I'm in a fairly gun-friendly area and defensive shootings with AK-47s have been no-billed by local grand juries. You may come to a different conclusion, but you are wise to consider this issue in making your determination of what's right for you.

As far as "how to deal with the issue in a hypothetical homicide trial"? No one can answer that, as the relevant variables in play aren't yet before us. You are wise to have the ability to coherently and reasonably explain the need for any additions to your base gear and your rationale for selecting that base gear. You would be wise to be prepared with the contact information for a good criminal defense attorney (how to find this has been discussed here many times) in the event that - God forbid - you would ever need one.
That is a point on which you concur just a few posts up.

Quote:
Originally Posted by Andrew Wiggen
Could a scary gun influence a jury in a complicated case? Absolutely. If you hesitate to call police or make a statement without an attorney or tamper with evidence or make any number of other mistakes, you could find yourself in a situation where every little thing matters, including the scariness of your gun.
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Old March 27, 2015, 07:08 PM   #56
Andrew Wiggin
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Maybe we're splitting hairs, then.


Everyone has to assess risk for themselves. In my own assessment, the perception of the tool is at pretty much the bottom of the list. I wouldn't use an illegal weapon unless I lived in a place where I simply did not have legal access to an effective weapon. I also wouldn't use something in a legal gray area like a pistol with a Sig brace. Otherwise, my first concern is to choose the most effective tool for the job and train to the extent of my ability. My second concern is to act within the limits of the law.
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Old March 27, 2015, 07:18 PM   #57
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One argument for suppressor is hearing damage based on low med high. Has there been any objective assessment done? Ive fired my m16 with no earplugs and still have good hearing...minus the tinnitus at times. Just wondering what the actual decibel of 9mm or 5.56 going off in a home is and if it is highly likely to caude oermanent hearing damage.

My ear testing facility also told me that if you get to them jn 72 hours they can mostly reverse it. Id just like to see some objective standarda and results on hearing put forth by the OP
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Old March 27, 2015, 07:23 PM   #58
Andrew Wiggin
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Wow. I'd never heard that hearing damage could be reversed.

Regardless of the permanent damage, discharging a firearm in a confined space can have a severe temporary impact on your hearing, making it difficult to communicate with your family, 911, and police.
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Old March 27, 2015, 07:43 PM   #59
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Quote:
Originally Posted by Massad Ayoob

Every case I've seen of a shooting with a lawfully owned Class III weapon has gone to a Grand Jury. Some of those grand juries have indicted.

However, every time it was provably self-defense, the subsequent Petit jury has also acquitted the shooter. Still, such trials are extremely expensive for the defendant.
Personally, I would take the advice of the foremost expert in legal uses of deadly force, and the thoughts of a PhD who studies jury behavior, over the musings of some dude on the 'net.

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Old March 27, 2015, 08:09 PM   #60
Andrew Wiggin
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So affording to that Ayoob quote, it is extremely unlikely that you will be convicted if you act lawfully, even if you use a machine gun. So the argument comes down to how much money you are willing to spend to defend your family.
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Old March 27, 2015, 08:35 PM   #61
Frank Ettin
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Quote:
Originally Posted by Andrew Wiggin
...it is extremely unlikely that you will be convicted if you act lawfully, even if you use a machine gun.....
Whether or not you acted lawfully will be determined by others after the fact and considering all factors, including the type of weapon you used. If the matter goes to a trial jury, you can expect your legal expenses to run between $50,000.00 and $150,000.00, or perhaps even more. Those will be your costs whether you are convicted or acquitted.

Quote:
Originally Posted by Andrew Wiggin
...Don't ever talk to cops....
So says a non-lawyer. Let's see what an actual lawyer, Andrew Branca, has to say on the issue:
  1. (emphasis in original)
    Quote:
    ...The “say nothing until lawyer” advice is based on the reality that anything you say to police can and may be used against you. It’s certainly true that the only 100% certain way to avoid saying anything incriminating is to say nothing at all.

    Rarely mentioned, however, is that what you DON’T say can also be used against you. Sure, you have a Constitutional right to remain silent, and once you’ve asserted that right your silence cannot be used against you.

    But this privilege applies post-arrest. Your silence before then can certainly be used by the Prosecution to infer guilt—an innocent person would have mentioned self-defense at the time, they’ll argue, and the fact that you did not do so suggests you only fabricated your story of self-defense after the fact to avoid criminal liability....
  2. (emphasis in original)
    Quote:
    The 911 Call: Be the Complainant, Not the Respondent

    A huge problem for Michael Dunn in his claim of self-defense was the considerable consciousness of guilt evidence he provided to prosecutors. In particular, his flight from the scene well beyond the need to secure his safety and his failure to ever report the shooting to law enforcement before he was arrested at gun point on a murder warrant. This conduct was far more consistent with the behavior of someone who believed he’d “gotten away with it,” than it was with the behavior who believed they’d acted in lawful self-defense. This was especially damaging given that the only evidence of self-defense came from Dunn’s own testimony in court....
  3. (emphasis in original)
    Quote:
    ...Let’s assume for purposes of this post, then, that you buy into the value of being the complainant rather than the respondent, and you therefore are the first to call 911.

    Taking the “say nothing until I talk to my lawyer” advice literally, exactly what are you going to say when the dispatcher answers your call? “I will say nothing until I’ve spoken to my attorney.” Really? When they ask “what’s your emergency?” surely that statement can’t be your reply. Rather, you’ll necessarily provide some description of what’s happened and the location to which you’re asking law enforcement (and ambulance) be sent.

    So, you’re ALREADY speaking with the police. And as long as you’re doing so, my advice is to get your claim of self-defense into the evidentiary record as soon as possible. You were attacked, you were in fear for your life, you were forced to act in self-defense. Of course, all of this will be recorded, and that recording will be admissible in court. As a result, the jury will get to hear your claim of self-defense in your own words and voice, with all the stress of the moment that such an event necessarily brings with it....

Quote:
Originally Posted by Andrew Wiggin
...The argument is that using a scary gun could land a person in jail....
No one has claimed that. What we are challenging is your glib, fatuous dismissal of the possible legal implications of using certain weapons in self defense.

The reality is that you simply don't have the professional qualifications to responsibly opine on such matters, and the issues are more complex than you guess.

There may indeed be practical reasons to use of a suppressor on a home defense gun, for example. But you don't understand the legal issues, nor do you have the education, training, and professional experience to actually have the "clue" as to such matters which you, yourself, have told us in necessary to make an opinion on such things meaningful.
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Old March 27, 2015, 08:54 PM   #62
Andrew Wiggin
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Quote:
You were attacked, you were in fear for your life, you were forced to act in self-defense.
Of course you should give your name and inform responding officers that you live in the home (if that's the case). You should also offer your ID and CCW if you have one and point out any physical evidence. You should not attempt to make any statements about your actions.

I honestly didn't expect that you would take my post about not talking to police so literally, nor did I expect that you would consider a blog post by a lay person to be legal advice. I never claimed to be an expert and I thought that the line about opinions should be a clue that the article is worth every cent you paid for it.

Let's see what another attorney and a police officer has to say about taking to police: https://youtu.be/6wXkI4t7nuc
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Old March 27, 2015, 09:25 PM   #63
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Quote:
That's okay, you could just cite a case where ANY scary gun resulted in a conviction.
That is not the only issue because a conviction is not the only way to lose in court. Civil cases don't result in conviction but can certainly ruin a person's life. In addition, it is generally much easier to lose a civil case as the defendant because the standard of proof is much lighter for the plaintiff to satisfy.

A light trigger, or firing a large number of shots(as might happen with a full auto firearm)--particularly if there's any way to make one or more of the shots look accidental--will make a very attractive set of circumstances for a civil case against a homeowner. If there is any way to convince a jury that the injury/death was accidental, then the homeowner's insurance becomes liable and that can create the potential for a very large payout.
Quote:
That's okay, you could just cite a case where ANY scary gun resulted in a conviction.
This combines a number of fuzzy thinking errors.

1. The fact that the current audience can't come up with a concrete citation of an incident doesn't mean it has never happened. It just means that the current audience can't come up with a concrete citation of such an incident.

2. The fact that concrete citations of a certain type of event are hard to come by doesn't mean that a particular incident is impossible. It might mean that it is improbable but that's not the same thing.

3. The fact that something is improbable doesn't mean that it's unlikely to happen GIVEN THE PROPER CIRCUMSTANCES; it might just mean that the proper circumstances occur rarely. For example, it's rare to be struck by lightning, but if you stand on a high hill with no trees on it while holding a long iron pole in a thunderstorm THEN it becomes pretty likely you'll get struck. Why don't we see lots and lots of stories about people getting struck by lightning while standing on hills in thunderstorms and holding long iron poles? Because people very, VERY, rarely do such things.

4. The fact that something happens rarely doesn't mean that this is proof that setting up the circumstances under which it might reasonably be expected to occur is a good idea.

For example, let's say that a 65 year old female rocket scientist were to publicly express a desire to go nude bungee jumping using old and frayed bungee ropes. She would likely be assailed by advice claiming that such an escapade would be a bad idea.

Using your logic, she could justify her actions by requiring someone to cite a case where an elderly female rocket scientist has ever been injured while bungee jumping in the nude.

Of course, such a cite would be extremely difficult to find because ANY incidents involving elderly female rocket scientists engaging in nude bungee jumping with old bungee ropes are extremely rare--perhaps non-existent.

Clearly the rarity of such an event (and therefore the difficulty in finding a citation) doesn't make engaging in the activity a good idea. In fact, its rather obvious inadvisability may be one reason it's so rare.

In similar fashion, the use of NFA items in self-defense cases is quite rare and therefore ANY cases (let alone cases involving convictions) are hard to find. As far as I know, there are only two publicized cases.

The rarity (or perhaps absence) of convictions where NFA items were used in self-defense doesn't make using NFA items for self-defense a good idea any more than the rarity (or absence) of incidents involving elderly female rocket scientists who nude bungee jump with worn ropes makes engaging in such activity advisable.

It's also worth pointing out that searching for self-defense convictions involving NFA weapons isn't likely to produce many results. People aren't convicted of "self-defense". They are convicted of murder or assault with a deadly weapon. So there aren't any "self-defense cases" involving NFA weapons where the defendant was convicted. If the defendant was convicted then the case is a murder case or at least an assault with a deadly weapon case even if the defendant tried to claim self-defense.
Quote:
The argument is that using a scary gun could land a person in jail. This argument cannot be true unless it has happened.
This claim is a major fail. Just a very little thought will demonstrate that if the claim were true then nothing (absolutely nothing) ever happens.

The claim implies that unless something has happened before, an assertion that it could happen in the future must be false.

Since everything that happens must have once happened for the first time--it must have once happened at a time when it had never happened before--the claim can not possibly be true.
Quote:
My ear testing facility also told me that if you get to them jn 72 hours they can mostly reverse it.
I have read that early and aggressive treatment with steroids can often prevent hearing damage from becoming permanent.

http://www.ncbi.nlm.nih.gov/pmc/arti...MC3102156/#R92
"Combined treatment with a steroid (prednisolone) and the nootropic drug piracetam also appeared to rescue subjects from noise damage by gunshots"
Psillas G, Pavlidis P, Karvelis I, et al. Potential efficacy of early treatment of acute acoustic trauma with steroids and piracetam after gunshot noise. Eur Arch Otorhinolaryngol. 2008;265:1465–1469. [PubMed]
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Old March 27, 2015, 09:48 PM   #64
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We're running in circles here. There don't appear to be any citable cases that directly address this, but that doesn't eliminate the possibility. Credible and experienced attorneys have demonstrated potential risk.

Should we ever get a test case, we can revisit the issue. In the meantime, this one has run its course.
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Old March 27, 2015, 10:54 PM   #65
Frank Ettin
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I'm going to jump in here to make a couple of comments to rebut some questionable statements by the OP in post 62. If the Andrew Wiggin wishes to answer my comments, he can PM me, and I'll re-open the thread for him.

Quote:
Originally Posted by Andrew Wiggin
...I honestly didn't expect that you would take my post about not talking to police so literally...
Why not? You wrote in post 54:
Quote:
Originally Posted by Andrew Wiggin
...Don't ever talk to cops....
That's a pretty clear and direct statement without any room for interpretation. Is there some reason we weren't supposed to believe that's what you intended to say? What else have you written that we're not supposed to take literally?

Quote:
Originally Posted by Andrew Wiggin
...nor did I expect that you would consider a blog post by a lay person to be legal advice....
Except you made comments on legal matters. Were people supposed to not take those comments seriously? How were we supposed to know that? If you didn't expect to be taken seriously, why would you have written what you wrote?

Quote:
Originally Posted by Andrew Wiggin
...I never claimed to be an expert and I thought that the line about opinions should be a clue that the article is worth every cent you paid for it....
In other words, you wrote an entire article which people were not supposed to take seriously? What other articles have you written that we shouldn't be taking seriously?

Quote:
Originally Posted by Andrew Wiggin
...Let's see what another attorney and a police officer has to say about taking to police: https://youtu.be/6wXkI4t7nuc
Yes, most of us are familiar with the video. The lawyer and police officer are discussing police contact in general. Here we've been discussing specifically a police contact following an incident in which you've used violence against another person and intend to claim that you were legally justified in doing so. That makes a difference, and the difference was alluded to in the Andrew Branca article I linked to in post 61.
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Old March 28, 2015, 12:02 AM   #66
Frank Ettin
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I've heard from the OP, and he is content for the thread to stay closed. And so it shall.
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