Reloads for Personal Defence

[Spats McGee]

After all the posts I am going to introduce a twist that maybe of a challenge to you because no one has mentioned black powder guns.
Lets say I am out with my black powder rifle and pistol practicing or hunting and a guy for some reason, lets say mental disorder, attacks me with an ax.
I kill him with my black powder rifle before he can get me. How does that differ from using hand-loads in a modern firearm?
In BP each load even if you use the same powder, cap, and bullet could be unique as I may load a bit different then you.
So what do you think when you look at this case under the current train of thoughts on this thread.

When I have a caveat, I start with it: I have never fired a black powder gun.

With that said, and based on my non-existent BP experience, I come to this conclusion: The risk posed by using handloads in self-defense becomes unavoidable if one uses BP to defend oneself. There are no exemplars to be had for comparison. Beyond that, I really need to let the BP problem percolate in my head for a while.

However, I will freely grant you that if you've got an axe-wielding maniac coming at you, you've got bigger fish to fry than worrying about the rules of evidence, and you need to use what you've got!

 

[Spats McGee]

kraigwy: Because of the whole "it's gotta become an appellate opinion before I can find it" issue, I don't know. But my read on the rules of evidence (both state and federal) tells me that the handloader has the uphill battle on getting any testing, or any expert testimony based on his own recipe, admitted into court. I'm not disputing whether the odds of it coming up in one particular case are high or low. They're low, or I would have found more cases dealing with this issue.

Panfisher: What I'm talking about is expert testimony, in which an expert could have testified as to the GSR residue which could be expected at a given distance. The one case on point here is the Daniel Bias case, and you can read up on it here: http://findarticles.com/p/articles/mi_m0BTT/is_181_30/ai_n26806104/

 

[Frank Ettin]

It’s interesting to note that the major bullet manufacturers definitely envision that their bullets will be used for self-defense purposes. (I’m using “bullet” here to mean the projectile that flies out of the end of the barrel, not the now common usage of “bullet” to mean “cartridge”.)...

You have no way of knowing what bullet manufacturers envision, except that they envision selling what they offer in the marketplace. The bullets are on the market because there's a demand for them and people buy them.

...This is the Bias case, and the question of the defendant’s introduction of evidence concerning the performance of his handloads was never appealed....

That's not really the way it was. See this post:

...
[1] Bias went through four trials.

[2] He was initially indicted for murder in the first degree. At his first trial, he was represented by a private attorney. It ended with a hung jury.

[3] At his second trial, he was represented by a public defender; he was out of money. The public defender was able to hang the jury. At that point, the judge threw out the murder one charge.

[4] At his third trial, Bias was acquitted of aggravated manslaughter but convicted of negligent manslaughter.

[5] The public defenders office appealed the case and got the conviction overturned.

[6] At his fourth trial, Bias was convicted of reckless manslaughter.

It looks like Bias' lawyers were doing a pretty decent job with what they had to work with. It certainly didn't help that the testimony potentially most useful to Bias, his expert's GSR testing, was kept out by the judge. Nonetheless, Bias' lawyers --

• Got hung jury in the first trial on the murder 1 indictment;
• Got a hung jury on the second murder 1 trial and got the murder 1 charge tossed;
• Got an acquittal on aggravated manslaughted and got the negligent manslaughter conviction overturned on appeal

....

...Are there other cases out there? Based on what I’ve seen so far, I think the risk of losing an otherwise defensible case because handloads were used approaches zero....

On the other hand, we know of at least one case in which a police officer was exonerated because he used factory ammunition, and expert opinion testimony was therefore admissible into evidence to corroborate his story and rebut the complaining witness' version. See post 31.

After all the posts I am going to introduce a twist that maybe of a challenge to you because no one has mentioned black powder guns.... How does that differ from using hand-loads in a modern firearm?...

It really doesn't. What that means is that if you used a black powder gun (a muzzle loader or handloaded black powder cartridges), and expert opinion testimony based on GSR test results would be helpful to you, you'll be out of luck.

 

[pax]

However, I will freely grant you that if you've got an axe-wielding maniac coming at you, you've got bigger fish to fry than worrying about the rules of evidence, and you need to use what you've got!

Okay, that might be my favorite quote of the day. Thanks for the chuckle.

pax

 

[Frank Ettin]

How many times have reload vs.factory come up in shooting cases? That info is needed to come up with any sort of satasical data.

Beats me. Spats covered the question well from one perspective. I'll address it from another.

The threshold question is how often has handloaded ammunition been used in an incident in which self defense was claimed and which went to trial?

Historical research is helpful only if there's sufficient historical data. If the question is something like, "Is a private citizen who shoots someone and claims self defense more likely to be charged if he used handloads compared with factory ammunition?", or "Is a private citizen who shoots someone and claims self defense more likely to be convicted at trial if he used handloads compared with factory ammunition?", the availability of useful data depends on (1) a large enough sample of private citizens having shot someone in claimed self defense; and (2) a large enough subset of those private citizens having used handloads.

I suggest that the vast majority of people who keep guns for self defense aren't enthusiasts and use commercial ammunition. Indeed, even many of the members here, who are enthusiasts, use commercial ammunition for self defense.

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

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

 

[kraigwy]

Spats, what I was trying to allude to, without saying, (by having people study Firearms Investigation Studies and Text), is that though analyzing powder residue in determining distance (short range) is possible, it would be found of no great use since most smokeless powders give almost identical residue.

Plus there are too many other variables that come into play.

Again I stress that if someone is truly interested, since there are virtually no court cases, to study the subject. There are several text on the subject that could be found in any good library.

 

[Spats McGee]

kraigwy, I am going to see if I can get hold of some of those texts, to learn more about the science side of it. You say that "most smokeless powders give almost identical residue." But do they leave identical powders at different distances? Will the residue on a human from a distance of 2 feet be the same as the residue from the same shot at 15 feet? 20 feet? If not, then distance can become an issue. If the BG survives, he will undoubtedly tell the police that he was just wandering home from choir practice, minding his own business, when he was shot for no apparent reason . . .

 

[Frank Ettin]

... distance can become an issue. If the BG survives, he will undoubtedly tell the police that he was just wandering home from choir practice, minding his own business, when he was shot for no apparent reason . . .

And that was pretty much Randy Willems problem.

 

[kraigwy]

Will the residue on a human from a distance of 2 feet be the same as the residue from the same shot at 15 feet? 20 feet

Different text will give different distances, take your pick, read several. How ever I've never seen anyone say it can be detected at 15-20 feet.

But as mentioned above, all smokeless powder (within reason) would be pretty much the same. From what I understand, is if you don't have residue from a factory round then you wont have residue from a reload (everything else being the same). So without reading the judges' mind, that could be the reason the testing of the reloads weren't necessary or allowed.

One has to study the subject to understand what powders do and how far the do them. It is an interesting subject.

 

[JayCee]

I suggest that the vast majority of people who keep guns for self defense aren't enthusiasts and use commercial ammunition.

You have no way of knowing how many people use handloads for self defense, because it's never been tracked.

On the other hand, we know of at least one case in which a police officer was exonerated because he used factory ammunition, and expert opinion testimony was therefore admissible into evidence to corroborate his story and rebut the complaining witness' version.

But, he might also have been exonerated if he had used handloads. The judge in the officer's case might have held differently than the judge in the Bias case. There's no basis to state he was exonerated because he used factory ammunition.

Just because there is insufficient historical data doesn't mean that professionals can't draw reasoned conclusions about how likely a particular result might be under certain circumstance.

That's what lawyers do. But on this issue, other than a rather muddled lower court trial record, there doesn't seem to be any legal support for the overreaching conclusion that gun shot residue from a handload will never be admissible as evidence.

 

[OldMarksman]

Posted by JayCee: The judge in the officer's case might have held differently than the judge in the Bias case.

He or she did, in that the results of GSR testing of the exemplar ammunition was admitted, and the reason has to do with the subject of this thread--the fact that factory loads had been used.

There's no basis to state he was exonerated because he used factory ammunition.

There is a basis to state that the exonerating evidence was ruled admissible because he used factory ammunition.

...there doesn't seem to be any legal support for the overreaching conclusion that gun shot residue from a handload will never be admissible as evidence.

Never is a long time, but under current rulings, any judge who might admit such evidence would do so in error.

The judges' rulings are governed by the rules of evidence for the admissibility for scientific forensic trace evidence in the jurisdictions at hand. In some states, those rules are based on the SCOTUS ruling in Frye vs. United States; others, the rules stem from the SCOTUS rulings in Daubert v. Merrell Dow Pharmaceuticals; some states use their own rules. Notwithstanding the rather minor differences among the rulesets, it is most unlikely that any judge would admit evidence based on testing of ammunition other than factory loads; it is almost certain that no judge would ever admit evidence based on testing of ammunition loaded by the defendant; and under the rules in effect at this time, there no reason to assume that a judge would have any basis for not admitting evidence based on testing factory ammunition.

While the subject does require specific knowledge of both the pertinent areas of the law and of scientific methodology, the reasons are spelled out rather well in layman's terms in some of the above posts, Post 39 in particular.

This is really not the kind of thing on which a conclusion can drawn from how many trial court judges may have ruled one way or the other. It is a matter of established legal precedent based on things that extend far beyond the realm of ammunition.

 

[Frank Ettin]

I suggest that the vast majority of people who keep guns for self defense aren't enthusiasts and use commercial ammunition.

You have no way of knowing how many people use handloads for self defense, because it's never been tracked.

Actually we do have some highly suggestive data, thanks to Al Norris of this board.

According to his research, during a 37 year period (1970 to 2007) in Idaho, only 12 self defense shootings involved handloads. Six weren't prosecuted; apparently they were clearly justified. Six were prosecuted, resulting in six convictions -- four on pleas and two on jury verdicts. See this post and this post.

...But, he [Randy Willems] might also have been exonerated if he had used handloads. The judge in the officer's case might have held differently than the judge in the Bias case. There's no basis to state he was exonerated because he used factory ammunition...

There is every reason to believe that the judge in Randy Willems' case would not have allowed into evidence the expert opinion based on GSR testing had handloads been used. That is basic evidence law as outlined by me here, and by Spats McGee here.

...That's what lawyers do....

Yes, it is. And Spats McGee and I are lawyers.

...there doesn't seem to be any legal support for the overreaching conclusion that gun shot residue from a handload will never be admissible as evidence....

But there is legal support for that conclusion, as Spats McGee and I have discussed.

...From what I understand, is if you don't have residue from a factory round then you wont have residue from a reload (everything else being the same). So without reading the judges' mind, that could be the reason the testing of the reloads weren't necessary or allowed...

No. The reasons the judge would not allow GSR test results of handloads was discussed by me here and by Spats McGee here and here.

 

[kraigwy]

Fiddletown go back and read my post. What I was saying was it wouldn't matter, if you have residue with one, you'll have it with the other in cases of suicide or close enough to wrestle with a firearm

Again, I recommend one study your library's text on the subject.

As I said, I'm not suggesting anyone carry reloads, I'm just recommending studying the subject to see what each will and will not do. I personally think its an interesting subject but it does not determine what ammo I carry.

I have other beliefs on the subject which aren't part of this topic but are referenced in Glenn's article mentioned in post #7.

 

[Frank Ettin]

...What I was saying was it wouldn't matter, if you have residue with one, you'll have it with the other in cases of suicide or close enough to wrestle with a firearm...

That's fine, but that's not the point. The point is not the behavior of GSR in a vacuum. The issue is the admissibility of certain information as evidence in court.

You understand the underlying science. But the job that Spats, Bart or I would have is getting that science in front of a jury so that the information can be used to establish or refute certain claims. You know about the science, but Spats, Bart and I know about getting it into evidence. Unless the information can be put before the jury, it doesn't necessarily do anyone any good.

 

[JayCee]

Fiddletown...

Admissibility of evidence is one of the main reasons trial court decisions are appealed. You cannot say definitively that every court in which evidence of this type is tendered will find it inadmissible. Reloading isn't a particularly arcane pursuit; load recipes are published in many reloading manuals, and virtually all reloaders stick to those recipes. Reloaders don't dream up their own loads like some sort of black magic; that's a recipe for disaster. Cartridges can be easily disassembled, and the weight of the powder charge, the brand and type of powder used, the bullet weight and manufacturer, and even the primer brand can be determined, just the same as with a factory load. Since the defendant didn't manufacture any of the components of the cartridge, but merely assembled them, it's quite easy to check for consistency. In the Bias case, evidently the defendant used three different powder charges in his handloads, so there was no means of determining exactly what powder charge fired the fatal bullet. That had to be a major reason that the GSR evidence was inadmissible. I see no reason why the rules of evidence would preclude the introduction of the foregoing types of evidence, since none of it is speculative in nature.

 

[kraigwy]

Anytime a firearm is used to shoot someone, be it a good shooting, bad shooting, accident or suicide, the gun is taken (in every place I've ever heard about) and examined. Its tested with the ammo used, be it reloads or factory. Whether the lawyers see the results is a different matter. If the Coroner, prosecutor, or who ever in your area determines the "cause" is questionable, or they have questions they call in a firearms guy to ask if this or that can happen.

Based on the information he may or may not take the case to trial. If the questioned firearm used reloads then they have to be considered or there is no case. I've even seen cases where a bullet mold was brought in to be studies to see if the ammo in question came from that mold.

One can not say NEVER when you talk about reloads or anything else not being used as evidence. Most of the time the "evidence never goes to court because it didn't show what the lawyer (which ever side) was looking for.

Another example of a case I worked on. Some guy was found with a Mauser rifle. The serial number was listed in NCIC as stolen. The prosecutor was trying to charge the guy with possession of stolen property. Problem was if one knows Mauser's, they know that several can have the same serial number. Unlike our military rifles, different factories weren't issued a set of numbers but often created their own. We never knew if the rifle in question was stolen or not, but he couldn't prove it was so the case was dropped.

(One reason an importer of surplus rifles have to add their own serial numbers)

I've spent a great deal of time talking to lawyers on both sides, (not just in firearms, but regarding bombs, traffic accidents and so forth). Normally they are fishing. I state my opinion and why, and seldom go to court. The reason I didn't go to court was because I couldn't give them the answers they were looking for.

Any time one talks about "NEVER" in court or anywhere else, some one is going to come up with the exception.

Any lawyer worth his salt never ask a question he doesn't know the answer too. He gets his answers well before the trail, if it doesn't help his case, he certainly isn't going to ask it. That's why one should never lie to his lawyer, pastor, or doctor. All have to have the answers to help you.

 

[Frank Ettin]

...I see no reason why the rules of evidence would preclude the introduction of the foregoing types of evidence, since none of it is speculative in nature.

Of course you don't. That doesn't mean you properly understand the rules of evidence. Those rules have been explained multiples times in multiple ways.

...Cartridges can be easily disassembled, and the weight of the powder charge, the brand and type of powder used, the bullet weight and manufacturer, and even the primer brand can be determined, just the same as with a factory load....

But the cartridge that was fired in what is claimed to be self defense can't be thus analyzed. It's been destroyed because someone was shot with it.

Therefore, there is no independent way to verify what the weight of the powder charge was, among other things, unless it was a factory cartridge. If it was a factory cartridge the maker and type of which can be known, it can be authenticated as substantially the same as other such cartridges produced by that manufacturer.

In other word, if you shot the guy with one round of .45 ACP Federal HST 230 grain, other rounds of .45 ACP Federal HST 230 grain would be substantially the same and thus serve as suitable exemplars for testing.

...In the Bias case, evidently the defendant used three different powder charges in his handloads, so there was no means of determining exactly what powder charge fired the fatal bullet. That had to be a major reason that the GSR evidence was inadmissible....

No, that was not the reason.

As described in his article on the Bias case, Massad Ayoob noted that all three loads were tested for the defense and they produced sufficiently similar results to be worthwhile as defense evidence, had the testing been admitted into evidence ("Handloads for self-defense: the Daniel Bias case", pp 1-2):

...Exemplar evidence is evidence that is not the actual thing at the crime scene, but is identical to it. With the duplicate loads in an exemplar six-inch Smith, Santy and I determined the 2.3 grain Bullseye load with the little 115-grain bullet would deposit GSR to perhaps three feet. At that distance, it left only about a dozen loose particles. At 24" there was still only loose particles, and even at 20" the powder would still be in very loose particles, with virtually nothing embedded. The 2.6-grain and 2.9-grain loads deposited slightly more GSR particles, but still very loose with virtually nothing embedding. Particulate matter from these light loads was so sparse and had hit the white cotton cloth (the same background that had been used by the crack NJSP crime lab in Trenton for the prosecution's testing) so feebly it fell away from the cloth from the force of gravity

Thus, the indications were that with the loads we believed to have been actually in the gun, the GSR would be so sparse and lightly deposited it was entirely possible none remained by the time the body was forensically examined the day after the shooting. There was considerable bleeding from the entry wound. Blood is liquid, and liquid washes things away. Blood is viscous, and sticky substances can obscure tiny particles. Given the light loads in the gun, in short, it was entirely possible Danny Bias was telling the truth and the gun had been in Lise's hand when it discharged, and there were well-established reasons why no GSR might have been found on the body when the totality of the circumstances were considered.....

...You cannot say definitively that every court in which evidence of this type is tendered will find it inadmissible...

Based on the rules of evidence and established legal principles, we can indeed say that there is an extremely high probability that such tendered evidence would not be admissible.

...Reloading isn't a particularly arcane pursuit; load recipes are published in many reloading manuals, and virtually all reloaders stick to those recipes. Reloaders don't dream up their own loads like some sort of black magic;..

But none of that establishes the necessary foundation for the admission into evidence of GSR exemplar test results, because those facts do not, and can not, establish that the round fired in claimed self defense was substantially identical to the exemplars tested.

...If the questioned firearm used reloads then they have to be considered or there is no case. I've even seen cases where a bullet mold was brought in to be studies to see if the ammo in question came from that mold.

One can not say NEVER when you talk about reloads or anything else not being used as evidence....

Used as evidence in what way or for what purpose. It's one thing to establish evidentiary support for the proposition that someone was shot with X ammunition or Y gun. It's another to use exemplar testing to support an expert opinion about what took place, such as the distance from which the shot was fired.

 

[JohnKSa]

It's either a risk to use handloads or it's not. We've got a couple of lawyers and at least one well-known expert witness who says it's a risk and explained why.

You cannot say definitively that every court in which evidence of this type is tendered will find it inadmissible.

Saying a thing is a risk is not the same thing as saying definitively that it will be a problem in every court, it's saying it could be a problem in some courts--maybe even in most courts. In the same vein, arguing that it could be admissible in some courts doesn't disprove the claim that it could be a problem in other courts.

One can not say NEVER when you talk about reloads or anything else not being used as evidence.

Saying a thing is a risk is not the same thing as saying that reloads will NEVER be used as evidence, it's saying that there can be problems with getting reloads used as evidence and in this case it's also saying that in some documented cases that fact has played heavily against a favorable outcome for the defendant. In the same vein, arguing that reloads may sometimes be used as evidence doesn't disprove the claim that there can be (and have been) problems with getting reloads used as evidence.

It's pretty well accepted that in some cases it won't be an issue. That's the nature of risk. Sometimes a risk doesn't materialize to a genuine problem because risks are probabilistic in nature.

Moreover, I think we can all see that under certain circumstances, even if it becomes an issue it might be favorably resolved even if the risk does "bite".

Neither of those things precludes the fact that the risk exists, nor does it address the more pertinent point--not onlydoes the risk exist, it's an UNNECESSARY risk that can be eliminated easily and at very little cost.

 

[Panfisher]

OK, its finally sinking in a little bit. Its not that a jury or a judge would actually hold using reloads against you so much as that you would not be able to use any scientific evidence about your reloads in court. Simply put that is not because of the ability of a lab to reproduce the loads etc. but because of the rules of evidence. Let me ponder on that for a while.

 

[Don P]

How many times have reload vs.factory come up in shooting cases? That info is needed to come up with any sort of statistical data.

I'm not arguing for the use of reloads,

But:

No pun intended, shoot an email off to Mas and he'll point you in the right direction and as stated before factory ammo and possibly what local LE carries is just one obstacle that does NOT NEED to be overcome at trial.