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THE PECULIAR PROBLEM OF HANDLOADS IN SELF-DEFENSE SHOOTINGS:

By Spats McGee, Apr 20, 2017 | |
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  1. Spats McGee
    First, my caveat and my bona fides. My caveat: I’m a lawyer, but I’m not your lawyer. What follows is commentary based upon my education and experience, but it is not legal advice. If you need legal advice, go hire a lawyer licensed in the applicable jurisdiction. As for my bona fides: I am an attorney and I’ve been practicing in litigation for almost fifteen years as of this writing. I am licensed in the Arkansas state and federal district courts, the Eighth Circuit Court of Appeals and the United States Supreme Court. I’ve been studying firearms laws in earnest since ~2007.

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    One of the most contentious and misunderstood of all topics that I have ever run across in gun forums is the issue of using handloads or reloads as self-defense rounds. Opinions and emotions run high, with one side screeching that “a good shoot is a good shoot,” and the other shrieking that “an overzealous prosecutor will hang you.” In my opinion, neither side is true, and both positions stem from fundamentally misunderstanding the underlying questions.

    One of the common fallacies that I see in The Handload Debate stems from a misunderstanding of our legal reporting system. All too often, I see posters claiming that someone needs to “show them the case” in which something has happened, either supporting or condemning the idea of using handloads. In and of itself, a request for “The Case” (presumably one with precedential value on the use of handloads) is neither unusual nor inappropriate. If I’m going to make a claim as to the legal contours of a thing or an act, I can reasonably be expected to back that up. Nonetheless, it’s important to understand that, depending on how the demand for The Case is phrased, that can be an impossibly tall order. In the United States, we have 50 independent state judiciary systems (each of which may include courts at the city, county and state levels), the District of Columbia, and a federal judiciary system overlaid on top of all of that. What’s more, not every case is reported, either in the news or in our legal reporter system. One of the things that lawyers do is extract legal principles from seemingly disparate cases, and apply those principles to the case at hand. A lawyer’s best case is one that will be “on point” with all of the legal issues presented by the one he’s arguing, and in his favor. For example, if I were defending against a challenge to a zoning law that prohibited shooting ranges within 1000 feet of a school, the first case I want is one in which (1) a zoning law; (2) prohibiting shooting ranges within 1000 feet of a school (3) was upheld by (4) the US Supreme Court, or my state supreme court. Conceptually speaking, the further a case is from those four points, the less precedential value it has to me. In defending such a case, I might wind up using Heller and McDonald (2A cases, but not zoning), some zoning cases that have little to do with the 2A, and a couple having to do with the city’s police power.

    Still, let’s take a brief look at how The Case might conceptually come into existence. In order for there to be a useful opinion out there, The Case has to have been tried and appealed, and an appellate court has to have issued an opinion on that issue. Those are the very broad strokes. More specficially, here’s the necessary chain of events to produce The case for purposes of The Handload Debate:

    1. Someone has to:

    a. use handloads

    b. in a shooting.

    2. As a result of that shooting, either a civil case or a criminal case (or both) has to have been initiated;

    3. The case(s) initiated in step 2 have to go to trial without a settlement or plea deal being reached;

    4. In the course of those cases, there must be a dispute over evidence related to the handloads (otherwise, the appellate court likely won’t talk about that evidence)

    5. The case has to have been appealed by someone (and in criminal cases, the State rarely gets to appeal);

    6. In that appeal, someone has to claim that the trial court’s ruling on the admissibility of the handload-related evidence constituted reversible error; AND

    7. The appellate court has to actually discuss the issue of the admissibility of the handload-related evidence in its opinion.

    If any one of the above is lacking, there’s no useful appellate opinion for us to dissect. This constellation of necessary events has left us in a position that there is, in fact, very little in discoverable case law to illuminate the pitfalls of using handloads for SD. My Westlaw account allows me to search all federal and state courts in the U.S., and I’ve run a bunch of searches over the years.

    The other problem with insisting on The Case is that the requestor can set an impossibly high bar. As I saw it phrased in one internet dispute: “I still have not seen a case where an unquestionable defensive shoot led to a conviction for wrongdoing because of the equipment used.” That statement overlooks several very important points. Two of them are: (1) someone involved in an SD shooting doesn’t get to decide whether his or her case will be “unquestionable,” and (2) the use of handloads could complicate the process of determining whether the SD shoot was lawful (“unquestionable”) or not.

    So, with that out of the way, let us turn to The Peculiar Problem of Handloads. From a legal perspective, the essential problem with using handloads in SD scenarios is an evidentiary one. It’s not a ballistics problem. I’m confident that a good handloader can load accurate, reliable rounds with sufficient ballistic performance. That’s not the problem. The problem is that using those rounds could complicate evidentiary matters, should the handloader ever be involved in a shooting.

    For purposes of this discussion, I’m going to use the Federal Rules of Evidence for my examples. Each state has its own Rules of Evidence and there are variations in them between states. Then there are court rulings in each state which build upon those variations. I could do a 50-state survey of every state’s rules of evidence, but I won’t. The result would be a much longer treatise than is desirable for purposes of this discussion. Using the Federal Rules as a starting point gives us all common ground from which to work.

    Within The Handload Debate, I often see one internet poster attempting to discredit another poster’s claim by saying things like “that was a murder case, not a negligent discharge,” or something similar. The problem with that attempt is that it overlooks that the same rules of evidence apply to most cases, regardless of the case’s underlying nature. In every jurisdiction of which I am aware, there are:

    1. Rules of Civil Procedure;

    2. Rules of Criminal Procedure;

    3. Rules of Evidence; and

    4. Various other rules not relevant to this discussion.

    As you might surmise from the titles, the Rules of Criminal Procedure apply to criminal cases, and the Rules of Civil Procedure apply to civil cases. The Rules of Evidence, though, are non-specific in that they apply to both civil and criminal cases. For example, Rule 1 of the Federal Rules of Evidence states the scope of the rules: “These rules apply to proceedings in United States courts. The specific courts and proceedings to which the rules apply, along with exceptions, are set out in Rule 1101.”Fed. R. Evid. 1 (a) (West). When we turn to Rule 1101, just to clarify exactly which courts, proceedings and exceptions are out there, we find that the Federal Rules of Evidence apply to proceedings before: United States district courts, United States bankruptcy and magistrate judges, United States courts of appeals, the United States Court of Federal Claims; and the district courts of Guam, the Virgin Islands, and the Northern Mariana Islands. Fed. R. Evid. 1101 (West). They apply in civil cases and proceedings, including bankruptcy, admiralty, and maritime cases, criminal cases and proceedings, and contempt proceedings. Id. In other words, it doesn’t matter if the case is murder or self-defense, battery or breach of contract, the same Rules of Evidence apply. A court will apply the same rules on admissibility in a self-defense case as it would in a murder case. Before I’m done with this discussion, we’ll have to hit on two main evidentiary concepts: (1) lay testimony versus expert opinions; and (2) hearsay. It’s all interrelated, I promise.

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    First, opinion testimony – As a general rule, lay (non-expert) witnesses may only testify to facts, but not to opinions. Fed. R. Evid. 701. Experts may testify to opinions based on scientific of technical, or other specialized knowledge. Id. Thus, a lay witness could testify “The bad guy with the knife was about 6 feet away from the shooter when the shooter fired,” but not to something like “the stippling pattern, penetration and lack of unburnt powder at the wound site, are consistent with a gunshot from about 6 feet.” The first is a fact, while the second is an opinion. Hold onto that idea for a moment.

    Second, hearsay – The Federal Rules of Evidence say this: “‘Hearsay’ means a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.” Fed. R. Evid. 801 (West). To put it another way, it’s an out-of-court statement, offered into evidence to prove “the truth of the matter asserted” in the statement itself. What is the “truth of the matter asserted?” It’s the facts contained in the out-of-court statement. For example, if Bob Smith testifies that Larry Jones said, “I [Larry Jones] was in Kansas City, Kansas, at 1:00 p.m. on August 1, 2016,” that statement is generally inadmissible to prove that Larry Jones was in Kansas City, Kansas, at 1:00 p.m. on August 1, 2016.

    Why is hearsay inadmissible? In simplest terms, because the Rules of Evidence say so: “Hearsay is not admissible unless any of the following provides otherwise: a federal statute; these rules; or other rules prescribed by the Supreme Court.” Fed. R. Evid. 802 (West). As to the reasoning behind that, and to make a long story short (which may seem really strange coming from a lawyer), our court system doesn’t think it’s reliable, at least not when compared to sworn testimony in court. However, the general rule that hearsay is inadmissible is riddled with exclusions and exceptions, so Larry’s statement (above) may be admissible for purposes other than proving that Larry was in KC, or it may be admissible because it’s some kind of damning admission on Larry’s part. The exception to the hearsay rule that I think is relevant to this discussion, though, is “records of a regularly conducted activity,” more commonly known as the “business records exception.” Fed. R. Evid. 803. Under certain conditions, records of regularly conducted activities (which are technically hearsay) are admissible to prove the truth of the matters contained in the records. To sum up: (1) Out of court statements are hearsay and are generally inadmissible; and (2) business records can still be admitted, if the appropriate conditions can be met. Here’s the rule on regularly conducted activities: “A record of an act, event, condition, opinion, or diagnosis [may be admissible] if: (A) the record was made at or near the time by--or from information transmitted by--someone with knowledge; (B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit; (C) making the record was a regular practice of that activity; (D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and (E) the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.” Fed. R. Evid. 803.

    Let’s stop here for an example, because one of the reasons I carry factory ammunition rests on being able to subpoena somebody else’s business records, should I need to. Let’s say that I buy a rifle from Gus Gunseller, an FFL. Unbeknownst to me, at the exact same moment that Gus and I are filling out a whole bunch of paperwork for this sale, my Evil Twin Brother (who sounds just like me) is 100 miles away, making a phone call from one of the few remaining pay phones in the country, arranging to sell a pound of cocaine to an undercover DEA agent. As a result of my brother’s activities, I find myself with one whopper of a controlled substance charge. Fortunately for me, Gus’ business paperwork always includes something like the following line, “On July 17, 2016, Spats McGee appeared at my place of business at 123 Smokepole Avenue, Oil Trough, Arkansas, at 1:14 p.m., and I verified his identity using two different forms of government-issued identification, each of which contained a photograph bearing Mr. McGee’s likeness.” Gus always signs that document. Unfortunately for me, Gus passes away before I can get to trial. As part of my defense, I really want to introduce Gus’ paperwork as evidence, right? Heck, yeah! Why? Because if I can establish that it was a “business record,” I can use it to establish “the truth of the matter asserted,” which means that I can use it to show that I was, in fact, at 123 Smokepole Avenue at the exact time the phone call to the undercover DEA agent was made, 1:14 p.m. Getting that document in to prove that I couldn’t have made the call will do wonders for my defense.

    I can almost hear some of you saying, “But, Spats, what in the world does this have to do with handloads?!?” Well, what if there were some kind of scientific evidence that might require the use of load data? Just like Gus’ paperwork, records of how someone loaded certain batches of rounds are hearsay. Accordingly, unless you can lay the foundation to get them in under the “regularly conducted activity” listed above, those records are inadmissible. The simple fact that they were created by someone who is now being scrutinized for shooting another human being makes them somewhat suspect in the eyes of the courts.

    Let’s take a look at the case of Daniel Bias. This case has been discussed extensively, and I’m certainly not the first to write about it. I didn’t attend the trial, and I haven’t read the trial transcript. Nonetheless, I’ve read a variety of articles about it, and the legal principles appear sound. To make a long story short, Mr. Bias’ wife was killed in an incident involving handloads. One critical question was the distance from the barrel to the entry wound. The distance from the end of a barrel to an entry wound can be determined through the use of science related to Gun Shot Residue (“GSR”). In order to get that in front of a jury, though, you have to have expert opinion testimony. That means that Rule of Evidence 702 governs it: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” Fed. R. Evid. 702(emphasis supplied). To paraphrase: if scientific or specialized knowledge will help the jury, an expert's opinion is admissible if: (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. You have to have all three to get the testimony of the shooter's expert in front of the jury.

    In a case like Bias, the defense wants to get expert testimony into the record that Mr. Bias used light handloads, the result of which is to make the GSR look like the shot came from further than it actually did, as compared to standard factory loads. If I were the prosecutor in that case, I’d likely file a Motion in Limine to exclude evidence based on the handloading defendant’s load data records. I’d argue that the data is inherently unreliable, having been created by the defendant himself, and that any expert testimony based on that would also be unreliable. (Who in the world has more motive to fabricate evidence than a murder suspect, right?) And any expert opinions based on that unreliable data would be flawed, right? If I win the Motion in Limine, the jury will never hear about the handloaded ammo. If the State’s experts base their testimony about distance on the wrong ammo, they may come to the wrong conclusion, one which the defense may be unable to rebut.

    Now, let’s change the facts up just a little. Let’s suppose that Mr. Bias had used low recoil rounds made by a well-established ammo company, WellKnownAmmo, Inc. WKA uses standard manufacturing processes, and keeps good records, which include the load data for its low recoil rounds. If the defendant in this case wants to put on expert GSR testimony and uses WKA’s load data, what’s the prosecutor going to say? The records were not created or maintained by the defendant, so they’re not “naturally suspect,” the way a handloading defendant’s load records are. Defense counsel can subpoena the records to show that the rounds used were loaded as stated in the records. (Remember the discussion above about “business records” and the “truth of the matter asserted?”) Defense counsel can call in the folks that calibrate the loading machines, to testify as to calibration and accuracy, if need be. And this can all be done without the Defendant ever taking the stand. The Defendant may need to testify, but if I were the Defendant, I’d want to keep my options open, if possible. I’d want someone to come from the factory and tell the jury that WKA has produced 12 bazillion rounds in whatever caliber, and that they’re all consistent with X, Y, and Z, within a tolerance of itty-bitty. With those factors in play, I’d expect the State’s firearms expert to testify that the GSR evidence is consistent with my story. If necessary, I’d put on my own expert to show that with rounds of X, Y, and Z, and a tolerance of itty-bitty, that the GSR has to show that things happened exactly as I claimed. If necessary, I can have my expert test other rounds in that caliber from WKA, and if I’ve got a guy from WKA who will testify about the 12 bazillion rounds loaded to X, Y, and Z, with a tolerance of itty-bitty, I can probably establish the evidentiary foundation necessary to let me expert talk about those tests in front of the jury.

    What I don’t have to do in all of that is risk having my expert’s opinion excluded for having been based on records that I (a criminal defendant) created.

    There are a lot of moving pieces here. I know that. However, it’s as much about the stakes as the odds, right? The odds of ever having to use the gun I carry are extremely slim, but if I ever do have to, the stakes are incredibly high: The lives of myself and my family. The Peculiar Problem of Handloads is similar. The odds of handloads ever developing into a real legal problem for someone involved in a SD shooting are very low. If it does, however, the stakes are very high. The use of handloads can muddy the evidentiary waters, causing incorrect conclusions from investigators, experts, and the prosecutors who rely on them. In turn, that could lead to incorrect criminal charges, or necessitate the hiring of additional experts on the defense side to head off whatever problems may have been caused. I don’t know about anyone else, but I don’t have tens of thousands of dollars to hire extra experts for my criminal defense. Heaven forbid that I’m ever involved in a shooting, but I don’t want the waters muddied. I want the evidence to be as clear and simple as I can make it.

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