If a plaintiff’s lawyer was suing you because your dog bit his client, don’t you think he’d play up the fact that your pet was a pit bull instead of a miniature poodle? Why would anyone think it would be any different in a case involving the use of a gun?
The attacks on your choice of gun and ammo aren’t based on black letter law; there are no statutes or codes that say you can’t carry a gun whose manufacturer named it the Killer Kommando Special, or one with a very light trigger pull. Interestingly, the City of San Francisco, California, at this writing has an ordnance which bans hollow point bullets, and a State of New Jersey law prohibits the handful of concealed carry permit holders there from carrying hollow points, though they can have them at home and police are exempt.
The attacks come from trial tactics, not taught in law school or available on .gov websites. They’ll come from unscrupulous — or sometimes clueless — attorneys who are strongly motivated to paint you as bloodthirsty or negligent or both to a jury of lay people expressly selected by those lawyers during the voir dire process for their lack of knowledge about weapons and self-defense. Some of those attacks are easy for the knowledgeable defense team and defendant to defeat with logical explanations for the choice. And some are hard to win, making them battles best avoided by choosing different equipment beforehand.
Arguments We Can Win
“He chose an especially powerful gun and loaded it with extra-deadly hollow nosed dum-dum bullets, ladies and gentlemen of the jury. Bullets designed to rend and tear and cause cruel and unusual pain and suffering. And oh, how many bullets he had, enough to slaughter a dozen and a half people! What but murderous malice could have motivated him?”
That’s the kind of argument you can expect. A computer search will get you to the case of Arizona v. Harold Fish, in which a retired schoolteacher shot and killed a paranoid schizophrenic who violently attacked him in the desert. Look for the Dateline TV episode on the trial, in which some of the jurors who convicted him explain how they bought the prosecution’s argument that his use of a 10mm pistol and hollow point ammunition was indicia of malice. His conviction was later overturned on appeal over another issue. When Harold Fish died, he still owed half a million dollars in legal fees to the defense attorney who failed to defeat that argument.
Powerful firearms are defensible. I often carry .357s and .45s on my own time. When I had time to hunt, I used a .44 Magnum Smith & Wesson with 4-inch barrel, which doubled as a defense gun during deer season. I’ve carried a .45 more than anything else when on duty as a police officer. If asked why I carried “such a powerful gun” – and, yes, I’ve seen that argument come up with all those calibers – my answer would be that more powerful calibers have historically stopped gunfights faster, and the sooner a gunfight stops the fewer innocent people get hurt or killed.
The research of Dr. Glenn Meyer, a psychologist and professor from Texas who works a lot with mock juries to determine how various issues impact jurors, has done studies which determine that deadlier-seeming “assault guns” make jurors more hostile toward defendants who use them.
No surprise: the jury pool is the general public, and the general public for generations now has been bombarded with “assault weapon” propaganda by media and politicians. Does this mean that you should not use an AR15 for home defense? No, it means that you should be able to articulate that you used that light, easy-to-shoot rifle with its telescoping stock because your petite wife and your grandmother could handle it far more easily and confidently than almost anything else if they needed to shoot to save their lives and the lives of their family. It would be worth your time to explain that it’s the most popular sporting rifle in America right now, advertised in every hunting periodical on the magazine rack.
Also Check Out:
When in states where there are magazine capacity limits, I stay within the limit and simply carry more magazines. I often carry a 20-shot Springfield XD(m) 9mm, with a spare magazine. If asked why I chose to carry that many rounds, I would explain (as I already have in Federal court) that the latest study from NYPD showed that 3% of the time their officers needed more than 16 rounds, and the one from LAPD showed 5%.
Citizens arm themselves for protection from the same criminals the cops face. 3% and 5% don’t sound like a lot, until you ask yourself, “Would I want to be in a situation where there was a 3% or 5% chance that I need this thing to save my life, and NOT have it?” And of course, many more situations go beyond 10 rounds, or six.
The history of fighting armed criminals is that many of them can absorb multiple solid hits before ceasing hostility, sometimes from state of rage, sometimes because drugs or alcohol have anesthetized them against pain, and sometimes because they’re moving fast in the dark and taking effective cover while they shoot at innocent people. We have more bad guys wearing body armor than in the time of John Dillinger, and that can soak up a lot of ammo before the good guy shooting back realizes it’s time to change point of aim.
In the next part of this series, Ayoob defends the use of hollow point bullets and explains some of the common tactics and arguments used against them. Click here for Part II
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