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LEGAL REPORT

Table of Contents

Introduction

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3

Delta Media, LLC

Use of Deadly Force

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Joe Kalil

When is it Universally Justifiable to Use Deadly Force?

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Key Words 21 Foot Rule: How Close is Too Close? Disparity of Force

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Escalation

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4

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of Force .

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5

What About Retreat?

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5

Researching Self-Defense Laws Aftermath of a Shooting

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Some Things to Remember

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6

It Doesn’t Have to Make Sense: It’s Just the Law –

 

Statements

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7

K.L. Jamison

It Doesn’t Have to Make Sense: It’s Just the Law –

 

Ammunition Law

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10

K.L. Jamison

After the Smoke Clears

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13

RK Campbell

LEGAL REPORT

Introduction

Delta Media, LLC

  • I t is unlikely that there is anyone reading this that has not heard that ignorance of the law is no excuse. One cannot stand before

a judge and simply declare he had no idea there was even a law

covering whatever crime he may be accused of committing. Un- derstand that not only can a crime be committed by doing some- thing, but also a crime may occur by not doing something thus rendering the one who failed to act guilty by omission.

When it comes to the legal issues of self-defense using firearms, it is obvious to most that there will likely be legal ramifications for shooting someone, no matter the circumstances. Many fail to realize that long prison terms and civil suits that wipe out every penny for a lifetime can occur in an instant for failing on one simple point of law.

On September 24, 2008 an Austin, Texas police officer left his gun in the public restroom of a courthouse. Things happen even to those with police training! Fortunately for this police officer, the gun was not taken or used to hurt anyone. If that gun would have been used to kill someone, even though the officer did not actually pull the trigger, he would have allowed it to happen by failing to properly secure the gun.

A considerable segment of the over nine million US citizens li- censed to carry a concealed firearm are better trained in the tactics of defense with a firearm than average patrol officers. Some law enforcement agencies only require annual re-qualification with duty side-arms. Private citizens who carry firearms are taking ad- vanced courses of self-defense tactics or at least learning funda- mentals from DVDs and books prepared by industry professionals.

Citizens are going back to the fundamental fact that defending against the acts of sociopaths is accepting that the “self” in self- defense is paramount. It is personal responsibility that needs to be taken seriously by every decent human being. The Supreme Court has declared the police are not under obligation to save individual citizens from crime. Law enforcement leaders across the nation are advising citizens to take steps to protect themselves, especial- ly in light of the economic downturns decimating the amount of law enforcement officers on active duty.

More law abiding citizens are carrying guns every day. More of those citizens are exceeding the amount of tactical firearms training and experience using firearms than many sworn police officers. They are very well equipped to handle themselves in a tactical situation where a sociopath is trying to rape, maim or kill them. However, there is concern over the amount of training those citizens have when it comes to law.

The point of carrying a gun is to survive a violent encounter with a sociopathic individual intent on raping, maiming, or killing. Whether the gun is used to defend in the home or out in public, there can be serious consequences of using a firearm in defense. Any little word or interesting tidbit surrounding the shooting, whether from the one who used the firearm in defense or from witnesses, can interest a prosecutor who has the resources to go after anyone his radar hones in on.

Answering a question wrong can decide whether or not one may be sleeping behind bars for the next few decades. Unfortunately there is a fallacy of confidence that permeates the minds of those who choose to go armed. They think that they will not answer any question wrong if it should happen that their time comes to have need of using a gun to defend life.

Realize that the right to remain silent is a friend in time of stress, such as when one just shot another human being to defend life. There is great debate if it is even appropriate to say something such as, “He attacked me. I was afraid for my life.” Some suggest advising law enforcement on the scene that questions will be an- swered when one’s attorney is present and offer no further infor- mation or answer any questions. That is except for giving identify- ing information required when questioned by a police officer.

To survive the aftermath of an incident where a firearm was used to protect the life of one or more victims, it is of vital importance to prepare the legal defense now before it is ever required. It is too late to go hunting for adequate legal counsel after an incident, and turning one’s future over to a poke-and-hope hit in the Yellow Pages is foolhardy. Train better than most cops on how to run that gun. Train the mind about the laws of using a firearm.

Establish a relationship now with an attorney trained in defending those who legally go armed, and continue reading material like this special report on Legal Defense. Do not be ignorant. It is not a defense.

LEGAL REPORT Introduction Delta Media, LLC I t is unlikely that there is anyone reading this
You become aware of a threat. You react in the process of defending yourself. Knives are

You become aware of a threat.

You react in the process of defending yourself.

Knives are very easy to conceal. Photo on left shows the author in close proximity, apparently unarmed. But, photo on right shows he is ready to attack with a knife. This knife is a Kershaw 1660CKT. It is very small, light and extremeley sharp.

treat if the person is in a place where he or she has a right to be.” Death: Loss of life. Serious Bodily Injury: Any injury that crip- ples; permanently disfigures; or could cause death within minutes, hours, days, weeks or months. Temporary cosmetic injuries such as abrasions, black eyes, swollen lips and surface bruises are not considered serious bodily injury. Innocent: Free from guilt or fault, harmless in effect or intention. You or the person you are defending must be free of fault, instiga- tion or escalation. You cannot start or condone a fight, then use deadly force and claim self-defense.

When do you know that you are in reasonable fear of immediate and otherwise unavoidable danger of death or serious bodily injury? You know when your assailant has the means, opportunity and intent.

Means/Ability: Your assailant possesses the physical power to kill, cripple, or permanently disfigure through the use of physical strength, unarmed fighting skills, blunt weapons, edged weapons, firearms or other weapons. (Also see “disparity of force” below.)

Use of Deadly Force

Joe Kalil

Opportunity: Your assailant is capable of immediately inflicting in- jury by striking you at arm’s length with bare hands, conversational

F irst and foremost, being armed is no mandate to act with bravado. On the contrary, it carries with it a moral and ethical obligation to avoid confrontations whenever possible.

distances with blunt or edged weapons, or any reasonable range for a particular firearm. (See discussion of the “21 foot rule” below.)

If a confrontation is unavoidable, then the armed citizen has an

Intent: Your assailant is acting or speaking in a manner, that any

obligation to do whatever is reasonable to try to de-escalate the situation. The rule is to be non-confrontational. Behave politely and non-aggressively.

reasonable and sensible person would assume indicates your as- sailant’s intention to kill, cripple, or permanently disfigure you.

21 Foot Rule: How Close is Too Close?

When is it Universally Justifiable to Use Deadly

Studies have measured the amount of time it takes the “average”

Force?

man to present his handgun from the holster and fire a single shot

You are universally justified in the necessary use of deadly

to the center of mass of a human size target, and compared that

force when there is a reasonable fear of immediate or other-

to the distance a man armed with a contact weapon (edged or

wise unavoidable danger of death or serious bodily injury to

blunt weapon) could run and inflict a fatal wound. The time is 1.5

the innocent. All of these factors must be present. The language and interpretation can vary substantially between countries and states, and in states with no preemption law it can vary between various local jurisdictions within a state.

seconds, which works out to roughly 21 feet of travel. Therefore, when facing an opponent armed with a contact weapon who is 21 feet away, with nothing intervening between you and the weapon, you are in immediate danger of death or serious bodily injury.

Key Words

Key Words

Necessary: Unavoidably determined by prior conditions or cir- cumstances, absolutely essential.

Reasonable: That which a sensible person (or 12 of your peers) would recognize as rational and normal if they had the same in- formation and were facing the same circumstances as you.

Immediate: At the very moment. (A few states use the term im- minent rather than immediate).

Unavoidable: If you can avoid the lethal confrontation by break- ing contact with your assailant and retreating to cover, you should, and in some areas of the country, you must. Numerous states have recently passed the “Stand Your Ground” law. For example, Ken- tucky’s new statute states, “A person does not have a duty to re-

4

Disparity of Force There are limited circumstances in which deadly force would be justifiable when the
Disparity of Force There are limited circumstances in which deadly force would be justifiable when the

Disparity of Force

There are limited circumstances in which deadly force would be justifiable when the assailants are not armed. Some examples might include multiple members of a gang attacking an individual, an assailant known to have special abilities (i.e., black belts) at- tacking a person without such training, a man attacking a woman, or a very large man attacking a small man. Of course, all of these examples are subject to interpretation and reason. The bottom line is that there are situations where unarmed assailants can employ physical force that can result in death or serious bodily injury.

Escalation of Force

This occurs when an apparently unarmed individual is in a con- frontation with a second apparently unarmed individual, and pro- duces a weapon, thereby escalating the conflict and increasing the required force to end it. You should NOT present your weapon unless your assailant has the means, opportunity and intent to kill or inflict serious bodily injury.

What About Retreat?

As mentioned previously, many states have passed the “Stand Your Ground” law, which states that a person does not have a duty to retreat if that person is in a place where he or she has a right to be. However, regardless of the jurisdiction, retreat is a good idea and should be exercised if it is a viable alternative and does not place you or those around you in greater danger. Retreat estab- lishes that you did everything possible to avoid the danger before it became necessary to shoot. If you detect an emerging threat or your “sixth sense” is telling you something is wrong, depart from the area for a safer location. There is no shame in running from a fight. The best gunfight is the one you avoid!

If you must defend yourself, three factors determine the outcome

of a gunfight: accuracy, speed and power.

Accuracy: You must hit your assailant in a vital area with well placed shots. Even if you shoot first and you are shooting a more powerful firearm, if you miss completely or hit in a non-vital area, you will not stop your assailant.

Speed: You must hit your assailant before you are hit. Even if you are the more accurate shooter and you are shooting a more power- ful weapon, if he hits you first, you are likely to lose.

Power: You must hit your assailant with enough power to cause enough damage to incapacitate him quickly, thus stopping the at- tack. Even if you shoot first and hit in a vital area, if your weapon is not of sufficient power to cause an incapacitating wound, you will not stop your assailant.

Therefore, accuracy, speed and power are all important in order to survive a deadly attack. Speed and accuracy are improved with training and practice. Power is determined by the type of firearm and ammunition that you carry. A good rule of thumb is to carry the most powerful handgun that you can quickly and accurately shoot. Another consideration must be choosing a handgun of a size and weight that doesn’t preclude comfortably carrying it.

Researching Self-defense Laws

If you routinely carry a concealed deadly weapon for your protec- tion, it is your responsibility to know the law regarding firearm possession and justifiable use of force. It is strongly recommended that you conduct a thorough investigation of the all of the relevant federal, state and local statutes and ordinances. Research specific instances of self-defense shootings and their final dispositions, as well as the conduct of the prosecutors in the criminal courts in your district that have been in such situations. You may discover examples of what others did right or wrong, which will help guide you in your efforts to avoid making critical errors. Be wary of ad- vice from others, even lawyers and law enforcement officers who do not specialize in self-defense law.

Aftermath of a Shooting

The act of preserving your life is more than likely just the begin- ning, rather than the end of your problems. You may face criminal charges against you despite your belief that you were justified. If criminal charges are pursued, the question of whether the use of force was ultimately justified is decided by a jury. It is quite possible to have 99 out of 100 reasonable people agree with your actions and still end up in prison on the decision of 12 jurors. However, the most important fact is that you were able to save your own life and possibly the lives of those you love.

It is a good idea to locate a self-defense attorney now, and keep their contact information with you, so if something happens, you will be able to start the legal process right away. Keep copies of all your licenses, insurance and legal contacts someplace where a family member can access them.

Some Things to Remember:

Be as reasonable and prudent as possible when dealing with a confrontation.

Never do anything illegal or unethical, such as tampering with evidence.

Be careful of what you say to witnesses, police, medical per- sonnel, and even family members following a confrontation. Wait until you have the advice of counsel before making any statements!

Bottom Line: The law abiding citizen should make every pos- sible effort to avoid using deadly force. Prevention, avoidance, de-escalation, and retreat are all good alternatives, allowing you a much better opportunity to maintain your freedom and return home safely to your family.

Joe Kalil is a former Army officer and pilot; Certified NRA Instructor; KY, OH, UT and FL concealed carry instructor; “Master” IDPA shooter; Glock Armorer; member of the KC3 (KY Coalition to Carry Concealed) Board of Directors; and

graduate of numerous professional shooting schools. Joe owns his own company, Defensive Handgun Training LLC (www.DefensiveHandgunTraining.com) and can be reached at: JoeKalil_DHT@insightbb.com.

Disclaimer: The information in this article is not intended to

specifically present all aspects of this topic. A lawyer was not consulted and neither the author nor CCM are attempting to

instruct you on when to shoot or not to shoot.

Aftermath of a Shooting The act of preserving your life is more than likely just thep an y , De f ensive Handgun Training LLC ( w w w . D e f e n s i v e H a n d g u n T r a i n i n g . c o m ) and can be reached at: JoeKalil_DHT@insightbb.co m. Disclaimer: The information in this article is not intended to specifically present all aspects of this topic. A lawyer was not consulted and neither the author nor CCM are attempting to instruct you on when to shoot or not to shoot. 6 " id="pdf-obj-5-86" src="pdf-obj-5-86.jpg">
It Doesn’t Have to Make Sense: It’s Just the Law - Statements K.L. Jamison I n

It Doesn’t Have to Make Sense:

It’s Just the Law - Statements

K.L. Jamison

  • I n 1996, an unhappy consumer attacked the City Marshal of Lancaster, Missouri with a hammer.(1) The Marshal defended himself and later vented his adrenaline to the responding

Sheriff stating, “I hope the son-of-a-bitch is dead.” This led to the Marshal’s conviction for involuntary manslaughter and a sen- tence of seven years in prison.(2) The story had a happy ending, but a story four years and tens of thousands of dollars in the mak- ing, and not a story the Marshal enjoyed very much. The Marshal might have avoided the worst part of the story had he not con- fused his right to remain silent with the right of free speech.

In the movie Under Pressure a woman tried to explain the stalk- ing and implied threats of a neighbor. After a disorganized and

“Bang Bang Maxwell’s Silver Ham- mer Came Down On her Head, Bang Bang Maxwell’s Silver Ham- mer Made Sure She Was Dead.”

It Doesn’t Have to Make Sense: It’s Just the Law - Statements K.L. Jamison I n

unconvincing recitation of ambig- uous events she lamely concludes, “I’m not a very good story teller.” Most people tell stories badly. In the aftermath of self-defense there can be a giddy stream of conscious- ness statement which has more to do with the effects of adrenaline than reality. The basic legal advice is “DON’T.”

The first question is, “What is a statement?” In a nation which counts exotic dancing as free- dom of speech, a statement is also broadly construed. In 1996, the Missouri Supreme Court ruled that a suspect’s refusal to uncross

his legs during questioning could be taken as a statement when later charged with murder.(3) In a separate death penalty case, the court found that the defendant had purchased a used car which sported the bumper sticker, “I’m the person your mother warned you about.” At trial the prosecution argued that the fact he did not remove this bumper sticker revealed something about his character. The Missouri Supreme Court ruled that it was perfectly acceptable for the state to kill this man, in part, because of his failure to remove the bumpersticker.(4) One can imagine the effect of bumper stickers bought in jest such as, “Keep Honking, I’m Reloading.” If this case does not also inspire a re-evaluation of one’s T-shirt collection, nothing will.

There is also the problem of nicknames. As of this writing, a rapper who rejoices in the stage name “C-Murder” is on trial for murder. If I were asked to defend a man named “Murder” or any variation thereof, I would charge more. Massad Ayoob testified in favor of a police officer who had killed a felon nicknamed “Snake.” Captain Ayoob slipped the nickname into his testimony which seems to have had an effect on the jury.

It Doesn’t Have to Make Sense: It’s Just the Law - Statements K.L. Jamison I n

Written Statement, a VERY BAD idea!

There is a cynical defense attorney saying: “Anything you say will be misquoted and used against you.” In the movie My Cousin Vinnie two, unfortunate Yankees are suspected of murder and dur- ing questioning are accused of shooting a clerk. One incredulous- ly asked, “I shot the clerk?” This is taken down and read in court as a confession. Theater audiences laughed, defense attorneys smiled and nodded. There have even been cases where comments by other persons have been attributed to the defendant, and used against him; complete silence is the only bulwark against these mistakes.

The first statement is the 911 call. These calls are recorded and if the call sounds bad for the defendant, it will be played over and over again at trial. In one case, a man cocked his double-action revolver and went after a person who was shooting out windows. When he caught up with the threat he extended his revolver and in the process tripped the light single action trigger pull; arguably an accidental discharge. His 911 call records him saying that he thought he had just shot someone. The 911 operator, trained to keep him on the line and keep him talking, asked why he thought he had shot someone. The man replied, “Lady, I think I’m a pretty good shot.” This callous-sounding statement took accident off the table and the man had to live or die with a self-defense case. This all important introduction to law enforcement must be planned in advance.

The first words out of the caller’s mouth should be the location of the incident. If the battery then dies, or the minutes run out, or some other technological catastrophe occurs the authorities will know that something of interest is at that location, and the caller’s cell phone records can prove that he or she made the call. The next statement is the caller’s name. The core of the 911 call con- sists of three sentences:

“He tried to kill me.” “I was never so scared in my life.” “Send an ambulance.”(5)

The first sentence serves to introduce the roles of the parties, the caller is the victim, the other person the attacker. Being in reason-

able fear of life or limb is a prerequisite to acting in self-defense. ”

The phrase “I was never so scared

is to preclude the prosecutor

... from claiming that the citizen never said he was scared “until he

talked to a lawyer.”(6) The phrase “Send an ambulance” says that the caller does not want anyone to die.

When the police arrive, they will want a more elaborate state- ment; this should consist only of:

  • 1. He attacked me.

  • 2. I will sign a complaint.

  • 3. There is the evidence.

  • 4. I WANT A LAWYER.

This restates part of the 911 call and points out critical evidence. One cannot expect the “CSI” team to be called out to pick up every fiber and hair. If a real forensic team routinely conducted the inves- tigations shown on television, its budget would last about a week.

There is a cynical defense attorney saying: “Anything you say will be misquoted and used against

Good Advice.

The demand for a lawyer is both the best thing one can do, and a damaging statement. Anyone who is questioned by police has the right to a lawyer; this includes victims. The problem is that the police, and potential jurors, take a demand for a lawyer as evidence of something to hide. To compound the problem, the victim’s decision to remain silent and demand for a lawyer can be used again him or her in court. In the criminal system, one does not have rights, until arrested; it doesn’t have to make sense, it’s just the law. It is a left-handed fortune that people who act in self- defense are routinely arrested. It may be called something else such as “detained” or given the “Alice in Wonderland” explana- tion “You’re being handcuffed for your own protection.” When- ever a person is not allowed to leave, he is placed under arrest regardless of descriptive terms. If one is arrested, generations of TV shows advise us to remain silent.

There is a cynical defense attorney saying: “Anything you say will be misquoted and used against

Western Missouri Shooters Alliance President Sheila Stokes-Begley employs a cell phone and CZ75 compact.

If the circumstances are ambivalent, simply state a fear of being sued, and demand a lawyer to protect against frivolous litigation. Bernard Goetz was acquitted of criminal charges in the shooting of four thugs on the subway, but was sued for $43 million and lost. Police are frequently sued by criminals and the explanation is likely to ring a bell.

Self-defense cases bring out the curious, the media in the fore- front. Comments to friends will be confused and used against you, comments to family will be mistaken and used against you. Both family and friends can be subpoenaed and forced to testify against you. Comments to the media will be sensationalized and this is never good. The New York City prosecutor’s office had determined not to charge Bernard Goetz, until he made unwise remarks to the news media. At some point a statement must be made. The impression is that the earlier a statement is made, the more reliable it is. In reality, the earlier a statement is made, the less reliable it is. The effects of stress will confuse the statement and even cause temporary amnesia. Inaccuracies in the initial statement will convince authorities that the survivor is both a liar and a murderer. A lawyer must be immediately engaged to orga- nize the statement.

A lawyer is a professional storyteller. He will not tell the client how to lie, he will tell him how to tell the truth, a more complicat- ed process than most imagine. The statement must contain facts which track the elements of self-defense. In the case of defense of home or defense of other persons, there may be other elements as well. Knowledge of the assailant’s reputation for violence would certainly be relevant. The most important element to include is fear. A police statement is no place for macho posturing. One can- not use violence against another person unless in fear of life or limb. The survivor must go over every detail of why he or she was terrified, weak-kneed, pants-pissing afraid. If one does foul one’s pants, a not uncommon event, make sure that goes into the state- ment. No matter how ineffective a storyteller the survivor might be, the jury is sure to believe that.

Kevin L. Jamison is an attorney in the Kansas City Missouri

area concentrating in the area of weapons and self-defense.

Please send questions to Kevin L. Jamison -- 2614 NE 56th Ter -- Gladstone, Missouri 64119-2311 -- KLJamisonLaw@ earthlink.ne t . Individual answers are not usually possible but may be addressed in future columns.

This information is for legal information purposes and does not constitute legal advice. For specific questions you should con- sult a qualified attorney.

(1) A City Marshal is a law enforcement officer position used in Third and Fourth Class towns in Missouri. (2) State v Beeler, 12 S.W.3d 294 (Mo. 2000) at 296. (3) State v Kinder, 942 S.W.2d 313 (Mo en banc 1996) at 325. (4) State v Six, 805 S.W.2d 159 (Mo. Ban. 1991) at 167. (5) Taken from the Western Missouri Shooters Alliance “Stay Out of Jail” card, see www.WMSA.net. (6) A claim I have heard, even when false.

Self-defense cases bring out the curious, the media in the fore- front. Comments to friends willKLJamisonLaw@ earthlink.ne t . Individual answers are not usually possible but may be addressed in future columns. This information is for legal information purposes and does not constitute legal advice. For specific questions you should con - sult a qualified attorney. (1) A City Marshal is a law enforcement officer position used in Third and Fourth Class towns in Missouri. (2) State v Beeler, 12 S.W.3d 294 (Mo. 2000) at 296. (3) State v Kinder, 942 S.W.2d 313 (Mo en banc 1996) at 325. (4) State v Six, 805 S.W.2d 159 (Mo. Ban. 1991) at 167. (5) Taken from the Western Missouri Shooters Alliance “Stay Out of Jail” card, see www.WMSA.net. (6) A claim I have heard, even when false. 9 " id="pdf-obj-8-25" src="pdf-obj-8-25.jpg">
It Doesn’t Have to Make Sense: It’s Just the Law - Ammunition Law K.L. Jamison S

It Doesn’t Have to Make Sense:

It’s Just the Law - Ammunition Law

K.L. Jamison

S ixteenth Century Germany was familiar with the accuracy of rifled guns, but could not decide if the superior accuracy of the rifle was heavenly or demonically inspired. Scientific

experiment involving silver bullets, which reject demonic influ- ence, and lead bullets, which do not, conclusively determined that the accuracy of rifles was demonically inspired.(1) Five-hundred years later we have a different set of superstitions which appear in courtroom arguments and appellate decisions.

Some years ago, I represented a man who shot an intruder with a .357 magnum revolver loaded with his hunting cartridges. The bullet went through the chest cavity of the 200-pound intruder and through the kitchen wall behind him. In court, the prosecu-

It Doesn’t Have to Make Sense: It’s Just the Law - Ammunition Law K.L. Jamison S

tor referred to his “magnum” every time the hysteria seemed to flag and made it sound like “nuclear weapon” when he did so. Fortunately, the jury contained persons who were familiar with magnums. Left without explanation, the jury may come to believe that the use of a magnum is evidence of excessive force.

A hollow point bullet is much less likely to penetrate a person or a wall; and I emphasize less likely. However, the use of hollow point ammunition has been stigmatized to the point of demonic possession. Some commentators have likened being shot with hollow points to being shot with a buzz saw or chain saw. Another luridly claimed that if shot with a hollow point, “The bullet does not explode, you do.” This nonsense has already seeped into ap- pellate decisions. In State v Eggers, the court found that the use of hollow point .22 ammunition showed sufficient evidence of premeditation to support a death penalty conviction.(2) In State v Davis, the court found the guest of honor guilty of carrying an un- loaded concealed gun on the grounds that ammunition was read- ily available and pointedly mentioned that some of the rounds were hollow points.(3) If these attitudes are filtering into appellate courts, they must be addressed at trial. It would be even better to address them in police reports.

Virtually all law enforcement agencies use hollow point ammuni- tion, including the bailiff in the Court of Appeals. They do not do so because the bullet expands two to three times its diameter and cuts blood vessels instead of shoving them aside, although this is what they do. Hollow point ammunition is issued because it is less likely to go through people and things and go on to visit remote and disinterested persons; one can not say less likely too often. Innocent persons have been killed, and police agencies sued when police round-nosed ammunition went through criminals. The law- suit threat appears to have been the deciding factor in police adop- tion of hollow points.

“Black Talon” is a brand of hollow point that was withdrawn

from the market a dozen years ago after a series of lurid predictions of how the

from the market a dozen years ago after a series of lurid predictions of how the bullet would perform. This left some law enforcement with the impression that it is illegal. It is not illegal; how- ever some persons have been held while authorities hunted for a non-existent statute in order to support a charge. An Indiana man found with Black Talons was charged with possession of armor piercing ammunition. It most decidedly is not armor pierc- ing, quite the contrary. However, he faced an expensive hearing to prove this fact.(4)

“Fragmenting” ammunition is frequently recommended for self- defense. This ammunition does not actually explode. It is like a small plastic capsule filled with tiny lead shot. When the capsule hits something, anything, the plastic peels away and the lead shot continues, but with reduced velocity. This means that it ricochets little and penetrates less (one can not say less too often). It makes a messy wound. It sounds terrible in a police report, and must be explained to a jury. At least one manufacturer has a nice video demonstrating how the cartridge works.

Some states outlaw the possession of hollow point or fragmenting ammunition. Evan Nappen provides a cogent explanation of New Jersey’s unfortunate and confusing hollow point ammunition law in his landmark book.(5) In states without such a work, the advice of an attorney is essential. Gun shop owners and police officers are frequently mistaken in these matters, and reliance on their ad- vice is not a defense in court.

Armor piercing ammunition for pistols, and only for pistols, is banned by federal law; 18 U.S. Code §922(a)(7). These laws are designed to outlaw ammunition that will penetrate soft body ar- mor used by police officers. Virtually all center fire rifle ammu- nition will penetrate soft body armor regardless of composition of the bullet, so there is no point in banning armor piercing rifle ammunition.

True exploding ammunition is banned in most states and limited by federal law. It is no longer commercially available. While it could be improvised, a jury might consider firing bombs at people to be excessive force.

Certain ballistic chefs hand load ammunition in order to save mon- ey or obtain better accuracy. Handloaders have been criticized in court for being mad scientists brewing up exotic death loads. This may not happen often, but when it happens to someone it is 100% of the time as far as that person is concerned.

Different brands of ammunition, and all hand loads, give different ballistic performances. Ballistic tests show powder burns which

prove the distance of a shooting. The best way to provide such proof is to keep a half-dozen rounds from the box used to load one’s gun, magazine or speed loader; record the date and gun loaded and store the rounds and data. If the worst thing happens, there are six rounds available to prove the ballistics of the ammu- nition used in self-defense.

The amount of ammunition is a frequent issue, whether it is raised in relation to the amount of ammunition carried or the amount used. The amount carried is a function of ability. The amount used is a function of need and stress. It is possible for the average person to fire four to six rounds per second. The rapid-fire syndrome is a frequently seen phenomenon in the stress of self-defense cases. Under stress people tend to empty their guns into the threat, only to discover that the threat had friends, or was not disabled. The ef- fects of drugs, psychosis and sometimes pure evil can keep crimi- nals mobile, active and hostile long after they should be dead. The current record is an armed robber in Chicago who absorbed thirty- three rounds of 9mm in the chest and head, one round of 12 gauge buckshot, and one 12 gauge solid shot before he went down; this total does not include rounds that missed. The solution is obvi- ously extra ammunition, the question then becomes; “How much is enough?” This question can never be answered before trouble, only after. One extra reload is advisable; it is unlikely that it will be needed, but if it is needed it will be needed very badly.

from the market a dozen years ago after a series of lurid predictions of how the

A manslaughter case in Maryland was triggered, so to speak, by extra ammunition carried by a police officer.(6) Officer Albrecht stopped a car reputed to contain, among other persons, an armed and dangerous fugitive. He took the precaution of aiming his Remington 870 shotgun at the carload of suspects. He had previ- ously taken the precaution of adding a sling which carried fifteen extra rounds. An accidental discharge killed the driver. Subse- quent investigation blamed the shot on the extra weight of the sling. Representatives of Remington adamantly testified that the sling had no effect on the firing mechanism. My own tests with a similar Remington 870 and a similar sling found that if the slack was taken up on the trigger and the weapon is vigorously swung, then occasionally the weapon would fire. It is conceivable that under stress an officer might tighten up on the trigger. It is not necessary to place the finger on the trigger even when combat seems imminent. Tests by the Force Science Institute have found that there is no measurable combat advantage in having the fin-

ger on the trigger over keeping the finger on the frame above the trigger. This seems counter-intuitive, but has been conclusively demonstrated and widely publicized in police journals. This indi- cates a training error, rather than criminal behavior by the officer. However, police administrators seemed eager to place blame on the gun, the sling, and even to sacrifice one of their own rather than expose the department to all the liability. The single cartridge fired inspired criminal charges because of fifteen extra rounds that were never loaded into the gun.

There is no statute or court decision which will decisively confront the gunfight survivor with murder charges due to his or her ammu- nition choices. However, self-defense is a defense of justification, of justifying the tools and tactics, showing what is reasonable, showing a reason for the tools and tactics used. There may be no law stating ammunition choices are legal or not legal, but these are reasons which should be worked into a police statement.

Kevin L. Jamison is an attorney in the Kansas City Missouri

area concentrating in the area of weapons and self-defense.

Please send questions to Kevin L. Jamison -- 2614 NE 56th Ter -- Gladstone, Missouri 64119-2311 -- KLJamisonLaw@ earthlink.ne t. Individual answers are not usually possible but may be addressed in future columns.

This information is for legal information purposes and does not constitute legal advice. For specific questions you should con- sult a qualified attorney.

(1) Kelly Gunpowder Basic Books NY 2004 at 144-145.

(2) State v Eggers, 675 S.W.2d 923 (Mo. App. E.D. 1984) at

927.

(3) State v Davis, 71 S.W.3d 659 (Mo. App. W.D. 2002) at 662.

(4) Indystar.com The Indianapolis Star 6 June, 2002. (5) Nappen, Nappen on New Jersey Gun Law, Gun Writes Press Inc Oakhurst NJ 1997. (6) Albrecht v State, 632 A2d 163 (Maryland Ct. of Sp. App.

1993).

ger on the trigger over keeping the finger on the frame above the trigger. This seemsKLJamisonLaw@ earthlink.ne t . Individual answers are not usually possible but may be addressed in future columns. This information is for legal information purposes and does not constitute legal advice. For specific questions you should con - sult a qualified attorney. (1) Kelly Gunpowder Basic Books NY 2004 at 144-145. (2) State v Eggers, 675 S.W.2d 923 (Mo. App. E.D. 1984) at 927. (3) State v Davis, 71 S.W.3d 659 (Mo. App. W.D. 2002) at 662. (4) Indystar.com The Indianapolis Star 6 June, 2002. (5) Nappen, Nappen on New Jersey Gun Law, Gun Writes Press Inc Oakhurst NJ 1997. (6) Albrecht v State, 632 A2d 163 (Maryland Ct. of Sp. App. 1993). 12 " id="pdf-obj-11-33" src="pdf-obj-11-33.jpg">
After the Smoke Clears RK Campbell A point I have often made concerning instructors is that

After the Smoke Clears

RK Campbell

A point I have often made concerning instructors is that it is best by far to learn from an instructor who has both police experience and who has survived critical incidents.

I realize sport shooters are fine shots and that military profession- als have a more dangerous duty than any I may have pulled. But we must consider what we are training for. That is the reality of the situation. As I often point out in a class I love to stretch my handguns to the limit and learn how accurate they are at long range, but there is little point in such shooting for practical self defense. Learning to quickly manipulate the piece at moderate range is what is critical.

Experienced instructors are not as few and far between as you might think, and their understanding of critical incidents and their aftermath is priceless. At the least your instructor should have a decade of police experience. The fellow who has attended lots of schools but not walked the walk may be a good shot but good

shooting is not the whole story. The marksmanship problems in self defense are not severe. Controlling your nerves, well, that is another matter. Knowing when to shoot is as important as know- ing how to shoot.

A point I think that is not stressed enough is that we should not fire unless we are sure of a hit. A miss is unacceptable. A harsh rule? Not at all. Learning not to press the trigger unless the shot is prop- erly lined up and learning to call your shots on the range is not a difficult program. A fast hit with a powerful handgun is better than a ragged group of fifty light hits on a pulp target.

A great advantage of an instructor who has been involved in a critical incident is that they understand the tyranny of the mo- ment. And they understand that some incidents may be avoided. No matter how clear cut the case may appear in your mind hostile witnesses or impetuous action can be devastating to your position. Survival is the first priority. Peace officers involved in shootings under color of law often find the experience gut wrenching. Ac- cording to my research eighty per cent of the officers involved in a shooting move to another agency after a shooting. I understand first hand the dynamics involved. A civilian may follow a similar but solo path.

There is a flip side of the coin. My friend Ed’s twin sister recently shot and killed a burglar who had had his run of the county for some time, and had threatened the community. This fine lady was regarded as a hero. While arguably she is an ordinary person de- fending her rights, this woman, well into her 60’s, simply stood her ground with a .357 Magnum revolver.

A civilian involved in a shooting must be very careful in consid- ering their words and deeds. I would advise against any state- ment to responding officers beyond, ‘I was in fear for my life’ and the pertinent details. Anything further, and I would consult an attorney. Never lie; lies are difficult to keep track of as my time in interviewing criminal’s shows. A peace officer with any time at all in can track a lie easily. Cops do not become investigators without a well turned BS detector hardwired in. Remember a hid- den witness or unexpected piece of evidence may trash your story. Neither add nor detract. Just state the facts.

First, survive the incident. Your chances of being shot in a gun- fight are about 50-50 if that information helps in choosing to avoid the fight if possible. Most handgun wounds are survivable so take heart. Remember taking cover greatly increases your chances of survival. Whether or not the felon is shot or escapes your goal is to survive the shooting and its aftermath.

Once the adversary is down do not leave cover. Be cautious and be certain he is indeed down. Visually confirm that he is down and beware of a second member of a team. You will wish to see where his weapon fell and if it is still in his hand. The adversary may be able to acquire the weapon again. A shot to the adversary after he is grounded is a bad idea. I have heard the flippant ‘Better be tried by twelve than carried by six’ but if your actions end you up in the crossbar hotel with a room mate devoid of social graces and personal hygiene, well, you may regret this attitude.

It is advisable to ask for an ambulance immediately as you also call for police assistance. Advise them in a general way of the circumstances and let them know you are armed and have the suspect in custody or down.

Collect the names and addresses of any witnesses. A couple of witnesses of good character gives weight to your testimony. Once you have the names of reluctant witnesses if need be you may subpoena them to a court hearing.

Never move anything on the crime scene. Planting evidence or moving objects is transparent to a trained investigator. Despite rather highly publicized incidents such as the Jon Benet Ramsey case, all police investigators are not incompetent.

When you call 911, tell them what happened in concise terms. ‘I was attacked. I was forced to shoot a robber.’ Give your location and a description of yourself. Remember even trained peace offi- cers have shot one another in cases of mistaken identity. Cops don’t get armed citizens calls. My calls were ‘man with a gun’ calls.

Be certain you have holstered or made your pistol safe when the officers arrive and follow their commands. If they disarm you or even handcuff you then comply. Cops are human and not immune to over excitement. Avoid being shot by an overexcited rookie.

Control your emotions. If you have faced a bad guy most peace officers will be sympathetic. They are more likely to sympathize with those who respect their authority. Some will advise that you say nothing to the police. That course of action will probably re- sult in an arrest. You may decline a question but do not lie. Inves- tigators will find you out. They will not care if were involved in an illicit affair and an angry spouse attacked you. Moral judgment is not present but your legal right to defend yourself is in question if you lie. Your motives become suspect. The police may ask why you were in a certain neighborhood. Give all information that is important and especially a description of any suspects who fled the scene. Be certain you present your role as victim effectively. ‘He assaulted me during a robbery. I was in fear for my life. I had no choice but to fire.’

Never answer questions requiring more than a few words. You were afraid, stress that, and never volunteer anything that may be used against you. Your thought processes may not be working at top form! Your round count may not be accurate. Don’t say you fired three rounds. You may have fired four or five. Do not appear to give inaccurate statements. Do not put yourself in a situation in which you may have to explain why you made an inaccurate statement. Stress that you have done nothing wrong but you do not wish to say anything further.

An important piece of advice is to check for injuries. I have been stabbed and knew it but I was not immediately aware of a gunshot wound in my lower calf that was probably a ricochet. Don’t bleed out on the scene!

As far as you are able point out witnesses and evidence to ar- riving officers. You may be arrested. Certainly you will be tem-

porarily detained. You may be placed in a patrol car, disarmed and handcuffed. If you are taken to jail do not discuss the situation with other inmates. They are not likely to be sympathetic. You may have shot their friend or accomplice!

You will be allowed a call. Be certain to call someone reliable you can trust. A spouse, brother or sister should be informed to call an attorney immediately. Finding an attorney is easy, finding a good one another thing altogether.

This is a short brief on what to expect after the ball goes up. We will follow up at a later date. Meanwhile, I hope this is food for thought!

RK Campbell is a writer with twenty years police experience. He holds a degree in criminal justice and has studied firearms and their use for nearly forty years. He is the author of three books and over six hundred articles, columns, and reviews.

It is advisable to ask for an ambulance immediately as you also call for police assistance.