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Old 03-12-2013, 18:53   #1
vandros
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Legal consequences of using 10mm in self defense and injuring innocent

Hi Mas!

I'm using 10mm g29 for hd and sd. However, this round, as I'm sure you know, is rarely used by LEOs or military or pretty much by most anyone else. The perception (and the argument overzealous prosecutor can make) is that 10mm is a super-charged round that sometimes is used for hunting and is so powerful that even FBI refused to use is due to strong recoil.

Given all of that, will it make a difference in court if I used 10mm in self defense, missed and god-forbid injured someone by accident? Would I be in a better legal situation if I used 45 ACP in self defense, missed and injured someone by accident? I'm particularly interested in 45 as a comparison point.

Please let me know what you think. Thank you, as always!
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Old 03-12-2013, 19:13   #2
Mas Ayoob
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Vandros, I think this breaks down into two different questions: the argument of the 10mm choice as indicia of malice and overkill, and the injury to an innocent party.

The 10mm as overkill thing goes largely back to one highly publicized case, Arizona v. Harold Fish. The defense could have shot that argument down in minutes, but for whatever reason, did not, and subsequent TV interviews with the jurors show that the whole "such a powerful gun must mean malice" BS worked on them. I've seen the same with .45 and .357 Magnum in other cases. It's simply a matter of defendant and defense team being able to articulate their choice and intent. I never worried about that when carrying any of my 10mms, and wouldn't worry about it today.

The shooting of the bystander is the big thing. The old "bible of homicide law," Warren on Homicide said in essence that if the shot was responsibly fired in good faith, it should be treated as if it struck its intended target. The trick is convincing the triers of the fact that you were acting prudently and responsibly when you fired the shot in question. If you didn't need to shoot...or if you fired at a gunman among a tight crowd of bystanders from 25 yards away and investigation showed that you had never fired your 10mm and didn't even know where it would hit, you're toast. If, on the other hand, the circumstances were such that if you didn't try to neutralize the offender from your less than perfect position, he was going to machine-gun a classroom full of little kids, and the shot you had to make was so difficult that even a world champion might have missed, legal doctrine appears to indicate that you should be held harmless.

Alas, complicated questions never seem to have simple answers.

Best,
Mas
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Old 03-12-2013, 19:23   #3
vandros
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Quote:
Originally Posted by Mas Ayoob View Post
Vandros, I think this breaks down into two different questions: the argument of the 10mm choice as indicia of malice and overkill, and the injury to an innocent party.

The 10mm as overkill thing goes largely back to one highly publicized case, Arizona v. Harold Fish. The defense could have shot that argument down in minutes, but for whatever reason, did not, and subsequent TV interviews with the jurors show that the whole "such a powerful gun must mean malice" BS worked on them. I've seen the same with .45 and .357 Magnum in other cases. It's simply a matter of defendant and defense team being able to articulate their choice and intent. I never worried about that when carrying any of my 10mms, and wouldn't worry about it today.

The shooting of the bystander is the big thing. The old "bible of homicide law," Warren on Homicide said in essence that if the shot was responsibly fired in good faith, it should be treated as if it struck its intended target. The trick is convincing the triers of the fact that you were acting prudently and responsibly when you fired the shot in question. If you didn't need to shoot...or if you fired at a gunman among a tight crowd of bystanders from 25 yards away and investigation showed that you had never fired your 10mm and didn't even know where it would hit, you're toast. If, on the other hand, the circumstances were such that if you didn't try to neutralize the offender from your less than perfect position, he was going to machine-gun a classroom full of little kids, and the shot you had to make was so difficult that even a world champion might have missed, legal doctrine appears to indicate that you should be held harmless.

Alas, complicated questions never seem to have simple answers.

Best,
Mas
Very interesting... So, how could the "Arizona v. Harold Fish" defense argue that 10mm is not too powerful? What would you argue if you were in their position?
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Last edited by vandros; 03-12-2013 at 19:24..
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Old 03-12-2013, 19:33   #4
Mas Ayoob
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Had I been involved in that case (which I was not) I would have brought out the fact that the 10mm was once issued as standard by FBI, and was authorized by many Arizona LE agencies...that it was popular as a "trail gun" for outdoorsmen, exactly what the desert-hiking defendant was carrying it for at the time he was attacked...that more powerful guns have historically stopped violent attacks with fewer shots, reducing the number of gunshot wounds the attacker is likely to sustain before ceasing his criminal, homicidal assault...and that the 180 grain JHP ammo in Mr. Fish's 10mm Kimber was not particularly likely to either ricochet or overpenetrate to strike innocent bystanders, though in that case there were no human bystanders present.

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Mas
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Old 03-12-2013, 19:39   #5
vandros
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Quote:
Originally Posted by Mas Ayoob View Post
Had I been involved in that case (which I was not) I would have brought out the fact that the 10mm was once issued as standard by FBI, and was authorized by many Arizona LE agencies...that it was popular as a "trail gun" for outdoorsmen, exactly what the desert-hiking defendant was carrying it for at the time he was attacked...that more powerful guns have historically stopped violent attacks with fewer shots, reducing the number of gunshot wounds the attacker is likely to sustain before ceasing his criminal, homicidal assault...and that the 180 grain JHP ammo in Mr. Fish's 10mm Kimber was not particularly likely to either ricochet or overpenetrate to strike innocent bystanders, though in that case there were no human bystanders present.

Best,
Mas
Very good information! Thank you, sir! On a different note, what 10mm pistols do you own, and what are you primarily using them for? I remember seeing an old video (probably shot 10-15 years ago) in which you were not particularly impressed with 10mm (in that particular video you expressed preference for 9mm and 45acp). I'm new to this caliber and still am assessing it. It seems to be a very polarizing caliber, making it hard to discuss it rationally with anyone.
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Last edited by vandros; 03-12-2013 at 19:58..
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Old 03-12-2013, 20:58   #6
Mas Ayoob
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Personally, current inventory includes a Colt Delta Elite (Mark Morris Custom Carry Comp, my favorite 10mm); Bren Ten (safe queen nowadays); and a couple of S&Ws, 5" 1026 and a 1076.

Back in the day, most of the 10mm ammo available tended to blow through people leaving narrow wound channels. 180 grain subsonic had no advantage over .40 S&W. 135 grain JHP at 1450 foot seconds and 150-165 grain in 1300 foot-second range had great potential, but never had a chance to develop a substantial track record in the field. 175 grain Wincheser Silvertip seemed to work well, but by the time it came out, 10mm had become an enthusiasts's niche caliber, and it never really had a chance to "build a record" in the field. Discussed more in second volume of "Greatest Handguns," available from the Gun Digest folks.

best,
Mas
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