Defensive Handgun Blog e-mails to highlight a post about whether the AR is a decent for home defense, pointing to the Harold Fish case as an example of any gun that can be successfully demonized.  He highlights two cases, one where someone was prosecuted for a case self-defense because he used a machine gun to kill his attacker. He was ultimately acquitted by a jury, but not until after spending a small fortune to defend against a politically motivated prosecution focusing heavily on the machine gun. The second case is that of Harold Fish, who was convicted of murder after a prosecution that focused on his 10mm pistol being too powerful and on his hollow point ammunition. Fish was ultimately convicted largely because he shot an unarmed man under dubious circumstances, however, not because of his gun.
I think it’s probably good advice to keep in mind that you’ll ultimately be judged by a jury of your peers if the state attorney for your jurisdiction decides to bring charges. The prosecutor, in addition to generally being an elected office, is going to have an idea of what a jury in his area will and won’t convict on. If you live on a ranch on the border with Mexico in Arizona or Texas, I’m pretty sure you could get away with defending yourself with light artillery if you had to. If you’re living in a townhouse in Alexandria, you might be complicating your defense if you shoot an attacker with an AR.
The Armed Citizen actually had a label for assault weapon defenses–and we had at least six such incidents we recorded.
Maybe while Sebastian is gone, I’ll tell the story of the weekend that the Night Stalker was killing people within a couple of miles of our home. Everything came out for home defense that night.
The examples given notwithstanding, I suppose if one is really worried about such prosecution, one would not defend themselves at all. Right?
It’s easy to over-think this kind of thing, to over-prepare like some super-duper over-trained mall-ninja, or whatever. I suspect rather than over-thinking all the details like these (what kind of ammo, what kind of trigger, what kind of accessories, what caliber, what size magazine, ad nauseam would be the least likely to turn up an eyebrow of a potential juror) … our reaction should be “if it’s a defensive arm, then it’s appropriate for defense.”
I know it’s different for those living in rural Kentucky than for those living in Queens. But at some level, an arm is an arm, and lawful defense is lawful defense.
As an aside … I get some of these same feelings when I read over at Volokh. It’s as if every issue is being “over-lawyered.” We need sensible and common-sense boundaries around laws and the prosecutions for violations thereof. It seems that there are altogether too many people “gainfully” employed in the business of splitting the sub-atomic components of each and every statute or court case. Enough already.
[dismounts soapbox]
I’ve generally always agreed with you. My sentiments have been dramatically enhanced on this subject by recent actions. Is there a case for allowing lawyers in a civilized society at all?
Unfortunately, I am not worried about a jury of those I actually consider my peers. I’m worried about a jury made up of losers. I always do my best to get picked when summoned, since I see it as my duty. The times I have served jury duty, I have been singularly unimpressed with the intelligence of the jury pool. You add in the prosecution doing their best to pick those most easily swayed to their thinking, and you have a recipe for an idiotic conviction.
Actually if your living in a townhouse in Alexandria an AR-15 just might be your best choice. From all the tests done with 223, 9mm, 40S&W, 45 ACP and shotguns the 223 penetrated walls the least So you could argue that you wanted to minimize the chance of a bullet leaving your townhouse.
Count me as someone who is proud to do my duty as a juror. That having been said, you’re not guaranteed a jury of your peers anyplace I can find. I think that’s a holdover from english common law in respect to Peers…
Fish’s attacker wasn’t unarmed- he had a concealed screwdriver. He had also been previous accused of rape. The jury was not allowed to learn either of those facts before convicting Fish.
“Is there a case for allowing lawyers in a civilized society at all?”
Everybody says that until they get indicted.
Unless he was convicted of rape, I can’t see that it’s something the jury should hear. The screwdriver info would depend on whether it was apparent to Fish or not. I’m presuming it wasn’t, otherwise that would have been an element of his defense (a screwdriver is a for-real deadly weapon if wielded with intent).
If you shoot someone who, after the fact, turns out to have been armed but you were unaware of that; it’s not a relevant fact. Remember, I’m saying this as someone who does not believe in proportionality of force arguments; if you are justified if using force to defend yourself, you should be justified in use of any level of force, since (IMHO) there is no level of force that cannot be deadly, and certainly that cannot be escalated to deadliness. I’m just saying that if Fish didn’t know the other guy was armed or an accused rapist, those facts could not have informed his decision, and therefore should not inform the jury’s. Just as the dead goblin being a choir boy and volunteering after school shouldn’t make a difference when he waves a gun at you, nor the fact that the “gun” was a dysfunctional airsoft with the red tip painted over; this guy’s being an accused rapist and having a concealed screwdriver shouldn’t matter to the actions taken by Fish. Either he was justified in shooting the man based on his actions, or he wasn’t. His previous history and carrying of a concealed item don’t factor.
The case for allowing lawyers is the same one for allowing any other professional. I don’t have TIME to learn the intricacies of statute law, case law, and regulatory law. The lawyer does. The Founding Fathers wrote the right to Assistance of Counsel into the Bill of Rights – they seemed to think that having someone to help you navigate the rocks and shoals of law was a Good Idea.
The problem is that while lawyers are necessary, at least part of why they are necessary is because (at least in civil matters), there are other lawyers looking for a way to make a buck. It doesn’t mean that there is no value to lawyers–but there needs to be some restraints that discourage the pirhanas. Perhaps making all lawyers who do civil cases be salaried government employees….
Only in criminal cases do you have a right to have an attorney paid for by the government.
I’ll be happy to explain to a jury, in great detail, why I defended my home with a short barreled suppressed AR15.
Sure beats being dead. (been there, done that)
One of the benefits of graduating from Ayoob’s Lethal Force Institute is the legal preparation for assuring that the jury can be compelled to take a 20-hour course on armed self-defense. They may start out as a carefully selected jury of NOT my peers, but they will be peers when presentation of discoverable evidenced is completed.
I wouldn’t say that the “answer” is more government employees with a monopoly on “helping” the public and no incentive to get you out of “the system”. Perhaps the solution might be to reduce the thicket of laws (both civil and criminal) whereby unscrupulous actors can ruin lives and fortunes?
ctdonath Said (August 18th, 2010 at 10:43 pm):
“I’ll be happy to explain to a jury, in great detail, why I defended my home with a short barreled suppressed AR15.”
You’d have to do very little explanation to convince me of a suppressed SBRs utility for defense of the home. But this brings up another question. If the test for protected arms is Heller’s “in common use for lawful purposes”, then what does that say about NFA-regulated arms. Some of the justices (during oral arguments) already questioned whether machine guns were protected given their less-than-common usage (decades of NFA regulation and the Hughes amendment notwithstanding). But what does this say about SBRs and suppressors … is it possible that some prosecutor would take the track that such weapons aren’t all that common, and cast doubt among the jury over whether they’re protected arms at all?
The problem with “in common use” is what frequency constitutes “common”, and what the boundaries of the category in question are.
AR15s are, without question, “common”. There are many millions of them around. Arguable that no other single design is more “common”.
That the government draws an arbitrary line on length in a category where mere barrel length ranges from 7″ to 24″ is not grounds for suppression of a right. That a 16.25″ is legal but 15.75″ is not is an absurdity in want of judicial review. That the arbitrary line causes an artificial depression of how “common” the sub-category in question is, is not grounds for suppression of a right. (This is where a good lawyer earns his keep: articulating the obvious. If a right may be suppressed because it is rarely exercised, and the right is rarely exercised because it is suppressed, why does the law suppressing the right still stand?)
So … SBRs should not be regulated, and the legal aspect of “too short” should not be at issue in a self-defense case.
Convincing a jury of the utility thereof should not be difficult. One reason handguns are popular for home defense is longguns are, indeed, too long. The hard-to-get SBR is a good balance of desired power with tolerable length.
Suppressors? Arrange for a “field trip” for the jury to experience, without hearing protection, how loud firing an unsuppressed .223 inside a home hallway is … and let the prosecution, or the court itself, argue that to do so brings undue medical risk. Then explain the infeasable nature of asking a home intruder to wait while various family members, dispersed thru the house, are fitted with earplugs.
This in turn further undermines the “in common use” argument: what if it isn’t, but should be? New technologies, or good technologies suffering a bad rap in popular media (suppressors), cannot become common without a legal means of doing so. Saying something isn’t common, because laws resist it from becoming common, isn’t fair.
Methinks the “in common use” clause must be shot down ASAP.
We might not be having this conversation using this medium if some legislative body deemed only speech-supporting media “in common use” was legal, prohibiting unlicensed publication on the back-then largely unknown “internet”. Imagine a world where copiers, computer printers, even radio was regulated into oblivion because, being not “in common use” at its inception and growth, was stifled by overbearing or prohibitive laws.
“In common use” is a judicial monstrosity. We will come to regret its inception.
+1 for Lethal Forces Institute training.
@ Carl -“If the test for protected arms is Heller’s “in common use for lawful purposesâ€, then what does that say about NFA-regulated arms.”
I would think that situation would bring up the opportunity to point out that NFA weapons are not in common use by virtue of too much government regulation, not because no one would own such a weapon.
Not that I think that argument would do any good, but it’s worth a shot.
@Ian Argent Comment #10: There are two things that have always bothered me about the “orange tip” requirement for toy guns:
First. It is trivial to add an orange tip to any real gun, thereby making it a “toy” gun. This alone makes the law stupid, because you still have to teach children to treat anything that looks like a gun as a real gun, until it’s clear otherwise that it’s not, and police still need to be cautious about any fool adult waving a gun-like object around.
Second. The use of deadly force only requires a reasonable belief that life and limb is in danger. If you pull a “knife” on someone, and that person responds by shooting you, or shoving you (thereby breaking your neck), or stabbing you with his own knife, or hitting you over the head with a chair, or what-not, it doesn’t matter if that knife turned out to be a tin letter-opener that could be bent by pushing the tip with your pinky-finger. If it looks like a knife, you have a right to defend against it!
Similarly, it doesn’t matter if you’re carrying a cap-gun. If you pull out a gun and say “Your money or your life!” it doesn’t matter if you were joking: if the person reasonably believes it’s a real gun, and you’re really trying to rob him, and shoots you, he’s only acting in self defense.
To require orange tips on guns trivializes this reality. It’s as though our Congress is trying to tell us “it’s ok to threaten to use deadly force, or to pretend to use it–even when the ‘victim’ doesn’t know it’s pretend–because we’ll make sure every toy gun has an orange tip on it, just for your safety.”
“Suppressors? Arrange for a “field trip†for the jury to experience, without hearing protection, how loud firing an unsuppressed .223 inside a home hallway is … and let the prosecution, or the court itself, argue that to do so brings undue medical risk. Then explain the infeasable nature of asking a home intruder to wait while various family members, dispersed thru the house, are fitted with earplugs.”
Thing is, that you would not even be allowed by the court to get to the point of argueing this. The jury would not hear of your suggestion for a field trip, and certainly would not be told anything about why it was denied. If you tried to mention it in open court you would be immediately charged with contempt and removed from the courtroom if you persisted. The game is rigged bubba.
Oh, just as a question. Would anybody here use home reloads for their regular everyday defensive carry ammo? Would you risk that being brought up in court?
@Alpheus: +1 on that whole thing.
I disagree on the orange tip requirement for toys as being essentially pointless, because of the ease of faking it one way or another.
If it looks like a weapon, and appears to be used as a weapon, it is a weapon for the purposes of responding in self-defense.
I was pointing out that if the screwdriver was not evident to Fish, then it should have no more bearing on the case than if he had shot someone menacing him with what later turned out to be a “toy”. IOW, in my hypothetical, the jury would be told that the “choir boy” threatened the hypothetical Fish with a gun, and the “choir boy’s” defense that it was a “toy gun” would be suppressed as irrelevant. In fact, I suspect the gun in question would be entered into evidence and the jury would get to decide if the “toy” would be viewed by the mythical “reasonable person” as a weapon under the circumstances. If Fish wanted the screwdriver in evidence, he should have said he saw it (if he could do so without perjuring himself).
This all goes to the foolishness of blaming the tool for the actions of the user. A screwdriver, or a knife, or a firearm, they’re not threats, they provide capability. Intent and action of the wielder, those are threats.
If I were confident my reloads were superior to retail products I would not hesitate to load ’em up for home defense. I would also not be surprised if it came up in court, and I would have a plan in place for dealing with it.
I’ve talked to Ayoob, the alleged starter of this “don’t use reloads for defense because the prosecutor will hang you with it” controversy. He is just pointing out that it could become an issue (it could) and you should be aware of that when making the decision of what ammo to use; he says if you weigh the issues and decide to use handloaded ammo for defense anyway, that’s fine by him.
Ok, no field trip. In-court demo using blanks.
The Dateline piece on the Fish conviction interviewed the jurors. At least one woman on the jury stated explicitly that it was the choice to carry 10mm hollowpoint ammunition that convinced her of his guilt (demonstrated his blood-thirstiness, or something). Fish must have had a crap lawyer to let that impression stand.
This is why I carry what my local PD carries. It won’t stop the accusations of excessive deadly force (that being force which is MORE deadly, apparently) but it provides a reasonable affirmative defense.
“Would anybody here use home reloads for their regular everyday defensive carry ammo? Would you risk that being brought up in court?”
It depends whether we can prohibit lawyers or not. :-)
Even I see the value of criminal defense attorneys not working for the government.
Sounds likethat juror would have found something to get Fish on, I guess.
Civil lawyers have value too – I’d not care to try and press a lemon law suit against a car dealer
“Sounds likethat juror would have found something to get Fish on, I guess.”
Ian, that’s precisely my point. When people are going to be looking hard, it’s best not to give them a reason–especially when the gain is so marginal (factory vs. handload). Does an AR have defensive utility? Absolutely. Am I more likely to be convicted (in my state) if I use one in self-defense? Possibly, but there’s no real way of knowing. If something less risky does the job then why assume the added risk?
Preparations should be to the most reasonable extent possible, where “reasonable” is contingent on the disposition of a likely jury, peers notwithstanding. If, God forbid, you’re ever attacked then all bets are off–do the most damage as quickly and decisively as possible with whatever you’ve got to stop the attack.
“If, God forbid, you’re ever attacked then all bets are off–do the most damage as quickly and decisively as possible with whatever you’ve got to stop the attack.”
Aye, there’s the rub.
“Whatever you’ve got” is now less than the best only because you’re afraid of the ill-informed opinions of a few people you might face after someone tries to kill you.
The odds of the objecting juror harming you are, by definition, much less than the odds of facing a lethal attacker. You must first encounter the latter, and survive, for even the chance of the former arising.
Sure, if there is no discernible practical difference between weapon X and weapon Y, but Y has greater chance of getting you incarcerated should you use it, then go with X. Duh. But if you DO see a benefit to Y over X, choose it – you can’t address the legal problem until you survive the assault.