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Old 03-12-2013, 20:02   #1
vandros
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Legal consequences of using 10mm in self defense and injuring innocent

Hi my 10mm comrades!

I've had an interesting exchange w. Mas Ayoob on this issue here. I think his insights might be valuable to many of you on this issue.

Here's my question:

Quote:
Originally Posted by vandros View Post
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!
and here's his reply:

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
What do y'all think? Let's hear it.
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Old 03-12-2013, 20:14   #2
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Should not be different than any other caliber. If we choose to carry we need to be resposible if we ever have to use it. Practice and know what your carry round is capable of.
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Old 03-13-2013, 08:28   #3
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Quote:
Originally Posted by vandros View Post

What do y'all think? Let's hear it.
As usual at the range and in life, Ayoob is right on target.

Personally, when I carry 10mm for self defense, I use hollow points that are "FBI weak" loadings. Privi Partisan makes them and they are dirt cheap for 10mm. They push 180 grain hollow point around 1000 FPS, so its a hair under 500FPE. it isn't much different from a hot .40 or 9mm round, its a hollow point, so less chance of over penetration, and its cheap ammo, so I have an opportunity to practice with it a lot.

Lets be honest, if you use a 230 grain hard cast lead 10mm from underwood capable of taking down a cape buffalo, the jury is gonna wonder why that is your home defense load when so many other things are on the market. The key to a self defense scenario under the law is reasonableness. If you can tell a jury that you purposely bought weak loads, I think your chances of showing the self-defense is/was reasonable is better than with big game hunting loads in the gun.
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Old 03-13-2013, 08:51   #4
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Quote:
Originally Posted by wvtarheel View Post
As usual at the range and in life, Ayoob is right on target.

Personally, when I carry 10mm for self defense, I use hollow points that are "FBI weak" loadings. Privi Partisan makes them and they are dirt cheap for 10mm. They push 180 grain hollow point around 1000 FPS, so its a hair under 500FPE. it isn't much different from a hot .40 or 9mm round, its a hollow point, so less chance of over penetration, and its cheap ammo, so I have an opportunity to practice with it a lot.

Lets be honest, if you use a 230 grain hard cast lead 10mm from underwood capable of taking down a cape buffalo, the jury is gonna wonder why that is your home defense load when so many other things are on the market. The key to a self defense scenario under the law is reasonableness. If you can tell a jury that you purposely bought weak loads, I think your chances of showing the self-defense is/was reasonable is better than with big game hunting loads in the gun.
I agree. Anytime you can show how you took specific steps to err on the side of safety, jury will perceive you as responsible and reasonable.
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Old 03-13-2013, 09:36   #5
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It's either a good shoot or it's not. In a good shooting, you won't be questioned on your caliber or bullet type.

If you're shooting is questionable, expect trouble in Criminal and Civil Court.

Avoid being trigger happy is my advice.
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Old 03-13-2013, 09:44   #6
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Quote:
Originally Posted by wvtarheel View Post
I use hollow points that are "FBI weak" loadings. Privi Partisan makes them and they are dirt cheap for 10mm. They push 180 grain hollow point around 1000 FPS, so its a hair under 500FPE. it isn't much different from a hot .40 or 9mm round, its a hollow point, so less chance of over penetration, and its cheap ammo, so I have an opportunity to practice with it a lot.
You may want to rethink that choice - PPU JHPs are cheap for a reason... they do not expand ;-)

http://www.youtube.com/watch?feature...&v=5PdOyZiWThU

You might be better served using something like Underwood's 155gr or 165gr Bonded Defense.
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Old 03-13-2013, 09:47   #7
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What are the penetration facts for 10mm HP defensive loads? I know it varies, as tarheel explains, but would one be concerned about the bullet passing through the perp and hitting someone else?
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Old 03-13-2013, 10:04   #8
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Originally Posted by PhotoFeller View Post
What are the penetration facts for 10mm HP defensive loads? I know it varies, as tarheel explains, but would one be concerned about the bullet passing through the perp and hitting someone else?
I am not aware of a consolidated resource for this (that would be NICE) but the concern that 10mm overpenetrates is blown out of proportion IMO. Sure, if you use ammo designed for hunting you'll have a problem... as would be expected!

For that reason I tend to stick with the "faster and lighter" approach (as posted above) when choosing SD ammo for my 10mm. The gel tests I've seen suggest that penetration is on par with other calibers... you just get more "punch" out of the 10mm ;-)

That said, there are a couple of things to keep in mind.

One, overpenetration is a lesser concern than missing entirely or hitting the target in an extremity.

Two, it might seem safer to err on the side of caution and choose ammo that penetrates less but that can greatly reduce effectiveness in a SD scenario. Note the last paragraph here: handgun stopping power

As Mr. Ayoob said, it comes down to making informed choices with what you carry and being responsible should you ever need to use it.
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Old 03-13-2013, 10:18   #9
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I, too, stick with lighter or mid-weight loads for the 10mm. I prefer the 155 or 165gr Gold Dots. They offer more penetration than the really light loads and don't fragment. Lastly, they don't overpenetrate like the heavier 180gr+ loads.

If I owned and carried a 40SW, I would probably stick with 155 or 165gr loads too.
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Old 03-13-2013, 10:47   #10
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Quote:
Originally Posted by oceanbob View Post
It's either a good shoot or it's not. In a good shooting, you won't be questioned on your caliber or bullet type.

If you're shooting is questionable, expect trouble in Criminal and Civil Court.

Avoid being trigger happy is my advice.
When you shoot/kill BG in self defense, and your shooting was justifiable (from your point of view), you will likely still be entering our imperfect legal system. Once there, you are at the mercy of the prosecutors and jurors (who are not necessarily your friends). And you'll have to convince these folks (some of whom know nothing about guns) that you are a reasonable and responsible gun owner who acted in self defense and used appropriate force - as any reasonable person would given your circumstances.

If the BG, or somebody on his behalf, claims shooting was not justified, hires an attorney, and takes you to court, then your situation has just gotten 10 times more complicated and your explanations and arguments should be even better.

In both (but especially second scenario) all factors, including what weapon and ammunition you used, will be carefully examined. And anything that can be used against you, will be used against you.

Using gun in self-defense is far more tricky than simply being a good shot.
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Old 03-13-2013, 16:50   #11
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Hey, vandros, I'm wondering how you came to choose 10mm in the first place. I've been curious about 10mm because its a powerhouse, but it is one of those 'edge of the envelope' things to me. Do you hand load?
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Old 03-13-2013, 17:05   #12
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Quote:
Originally Posted by vandros View Post
Using gun in self-defense is far more tricky than simply being a good shot.
One thing Mr. Ayoob has stressed is that you must be able to articulate why you acted as you did... and your defense team must be prepared to counter likely attacks on the choices you made (ammo, etc.)
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Old 03-13-2013, 17:33   #13
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Quote:
Originally Posted by PhotoFeller View Post
Hey, vandros, I'm wondering how you came to choose 10mm in the first place. I've been curious about 10mm because its a powerhouse, but it is one of those 'edge of the envelope' things to me. Do you hand load?
Photo, I like to hike (and we have mountain lions and black bears around) and I don't like to have many guns... So, I currently only have g29 which is great for sd/hd/ccw/hiking. I don't handload - I prefer to purchase ammo either from underwood or doubletap. That's a bit pricey, but I think reliability is worth it. I never shot underpowered 10mm and prefer hot loads, so I don't think I'll be using powered-down 10mm even when not hiking. Although, as several pointed out, that's an option.

I think 10mm is not that big of a powerhouse. It's got definately more energy than 9mm, 40s&w, or 45acp. But, not as much as to break a wrist or stop a grizzly. It's a decent caliber, imho. But, if I wasn't hiking, I'd be using 9mm g19.

P.S. Isn't it nice to discuss something noncontroversial for a change?
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Old 03-13-2013, 17:33   #14
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A I know this would be a rare occurrence because the odds of getting so many ignorant people together again is low, but few years ago a teacher here in AZ clearly defended himself with a 10mm, but the jury convicted him anyway and when they interviewed one for jurors they said "he must have been out to kill somebody carrying such a powerful gun".
Though it took the state of AZ to pass a law (another reason why we have the best gun laws in the US) to get him out of jail, the ignorance of the jury member just floors me every time I think of it.
The moral is you have no idea what jury member will think but I would carry one if I had one.
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Old 03-13-2013, 17:39   #15
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Quote:
Originally Posted by AZson View Post
A I know this would be a rare occurrence because the odds of getting so many ignorant people together again is low, but few years ago a teacher here in AZ clearly defended himself with a 10mm, but the jury convicted him anyway and when they interviewed one for jurors they said "he must have been out to kill somebody carrying such a powerful gun".
Though it took the state of AZ to pass a law (another reason why we have the best gun laws in the US) to get him out of jail, the ignorance of the jury member just floors me every time I think of it.
The moral is you have no idea what jury member will think but I would carry one if I had one.
Many jurors are ignorant, anti-gun, and yet very persuasive to their other juror peers. And your life depends on them... Unfortunately, as unfair as this is, this is the reality of our legal system.
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Old 03-13-2013, 17:41   #16
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  1. All guns are always loaded!
  2. Never let the muzzle cover anything you are not willing to destroy!
  3. Keep your finger off the trigger until you are sure of your target!
  4. Always be sure of your target!
If you are shooting someone in self defense and you miss and hit someone else by mistake, I think there is a very high likelihood that you are violating all of Jeff Cooper's rules except Number 1.


In the hypothetical situation you describe, it wouldn't matter if you were shooting a Daisy Air Rifle, or a bazooka. If you shoot at someone and someone else is near enough to the bad guy that when you miss, you hit the innocent person instead, you very likely made a terrible decision to shoot in the first place, and very probably would subject yourself to both criminal and civil liability.
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Old 03-13-2013, 17:53   #17
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Quote:
Originally Posted by AZson View Post
A few years ago a teacher here in AZ clearly defended himself with a 10mm, but the jury convicted him anyway and when they interviewed one for jurors they said "he must have been out to kill somebody carrying such a powerful gun".
That is the case Mr. Ayoob was referring to in the initial post. It clearly points to a failing with his defense team and their approach to the case.

As wacky as our legal system is, be glad we aren't in the UK where the victims get jailed and the criminals go free! Oh, wait a minute... :-/

I chose 10mm as my defensive caliber because it is IMO the only caliber suited to all of the places I go (with the appropriate loading, of course.) I want the same carry gun wherever I am (the hood or the woods) instead of having to switch guns and possibly my method of carry. Performance is on par with the .357 magnum (which few would even blink at) but in a platform the provides more capacity and quicker reloads.

All that is to say, I think it is very important to be able to explain - and defend - your choices.
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Old 03-13-2013, 17:56   #18
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Harold Fish was railroaded by a corrupt court system under an old law which basically required a person to admit to killing a person and then PROVE necessity as an affirmative defense against a homicide charge. The current law shifts proof back on the state where it belongs. Harold Fish would have gone to prison no matter what he used.

A good shoot is a good shoot regardless of the ammunition used and a bad shoot is a bad shoot, regardless of the ammunition. If you act rationally and within the limits of the law, it is very unlikely that you will see an indictment unless you live in a really crazy leftist county. Your ammunition choice is unlikely to even be known by the DA before they decide to either cut you loose or pursue an indictment. At trial, if there is one, the issue in question is going to be whether your ACTIONS were justified or not. A prosecutor can say all manner of retarded crap but it will only make him look bad if your own attorney has the sense God gave a fence post.

You should be less worried about what a jury is going to think than about how to avoid finding yourself in front of a jury. More important than that, even, is to be concerned with surviving long enough to worry about what a jury might think. Better to be judged by twelve than carried by six, etc. First get the right tools and training to survive a lethal threat and use the absolute best tools that you can afford and are legal for you to carry. Conduct yourself in a manner that reduces your likelihood of needing to use force. Use as much force as you are legally allowed to use as early as you are allowed to use it if you find it necessary. Act within the limits of the law. If you do those things, it's unlikely you'll find yourself in front of a jury but if you do, you are even more unlikely to be convicted.

Or you can buy all the internet and gun rag BS and find something that Gramma Nelso won't find scary. Good luck with that. Your hypothetical overzealous prosecutor is just going to point your Colt bodyguard right at her face.

Massad Ayoob is a pompous blowhard who gets paid to be a pompous blowhard. He writes articles with all sorts of goofy stuff but the central theme seems to be an attempt to scare you into using the absolute least effective tools you have at your disposal. I'm grateful for his work with gun rights but I'm sick of hearing his fanciful crap.

For the record, that PPU stuff is weaker than .40 S&W and chronographed at less than 880 fps out of my EAA Witness 4.5" barrel. They failed to expand. Beau coups penetration.

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Old 03-13-2013, 18:03   #19
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Quote:
Originally Posted by Andrew Wiggin View Post
Harold Fish was railroaded by a corrupt court system under an old law which basically required a person to admit to killing a person and then PROVE necessity as an affirmative defense against a homicide charge. The current law shifts proof back on the state where it belongs. Harold Fish would have gone to prison no matter what he used.

Massad Ayoob is a pompous blowhard who gets paid to be a pompous blowhard. He writes articles with all sorts of goofy stuff but the central theme seems to be an attempt to scare you into using the absolute least effective tools you have at your disposal. I'm grateful for his work with gun rights but I'm sick of hearing his fanciful crap.

For the record, that PPU stuff is weaker than .40 S&W and chronographed at less than 880 fps out of my EAA Witness 4.5" barrel. They failed to expand. Beau coups penetration.

Gel test: 10mm 180 gr Prvi Partizan JHP - YouTube
So, was there anything that Massad Ayoob said specifically in this particular situation that you disagree with? Or do you generally dislike/disagree with him?
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Old 03-13-2013, 18:03   #20
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There is a lot of misinformation and misunderstanding out there about the 10mm, its like an old urban legend that refuses to die.
The 10mm is often touted as being equal in power to the .41 magnum but the facts tell a different story. If you take a look at the real world ballistics of the 10mm (comparing similar top end loads) it is virtually indistinguishable from the .357mag and .45acp.

From Corbon's website.

.45acp 200gr. - 1050 velocity / 490 energy
10mm 200gr. - 1125 velocity / 562 energy
.357mag 200gr. - 1150 velocity / 587 energy
.41mag 210gr. - 1350 velocity / 850 energy

As you can see the 10mm is not a "power house, fire breathing, giant killer" of a cartridge. In fact it compares favorably with several very popular SD cartridges in common usage.
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