Use an AR for self defense and you're doomed!

General General Discussion
1

OK, an over dramatic thread title, but this is an interesting paper that looks at the effects of types of weapons used, gender effects, and interactions between them, and the effects on jurors. Good info for all gun owners (especially women who use an evil black rifle for SD it would appear…), LEO, and lawyers to read:

Will It Hurt Me in Court?
Weapons Issues and the Fears of the Legally Armed Citizen
by Glenn Meyer

Weapons-related Factors and Gender Can Influence Jury Decisions

Researchers have concluded weapons presence can influence legal proceedings through jurors’ evaluation of motives (Berkowitz & LePage, 1967). Dienstbier, Roesch, Mizumoto, Hemenover, Lott, and Carlo (1998) found with increased weapon salience, due to more direct exposure, mock jurors attributed more guilt and assigned longer sentences to the gun user - in that case an armed burglar. Females gave longer sentences and were more affected by weapons exposure.

Branscombe, Crosby, and Weir (1993) conducted mock trial research involving a homeowner who shot a burglar, and found incompetent male shooters and competent female shooters were dealt with more harshly than the reverse pairing. The interaction seemed due to whether or not homeowners breached stereotypical standards (males being competent shooters and females incompetent). Shooters who violated gender roles were perceived more negatively for their use of a firearm than those who did not breach normal gender roles.

Can the appearance and characteristics of a firearm influence a jury decision? Legal scholars have suggested that appearance of excessive force in a self-defense situation (i.e. the martial arts) can affect tort liability (Whitaker, 1995-1996) and that might apply to firearms. Certainly, there is ongoing discussion of banning so-called ‘assault weapons’ even though past legislative endeavors seem to have no effect on crime rate indices (Koper & Roth, 2001).

Weapons appearance has been discussed in criminal cases. In a recent Court TV televised trial (Florida v. Roten, 2000), the defendant was accused of a hate crime shooting. Roten used a modified SKS (an older Soviet pattern 7.62 mm semiautomatic military rifle) with accessories that might make the rifle appear fiercer than some. A commentator asked why anyone would need such a weapon.

Many people believe that certain types of guns are “good for only one thing - to kill” (Kleck, 1997, p. 16). Self-defense writers discuss in the popular gun press whether an aggressive looking weapon can influence your trial with articles such as “Firepower: how much is too much?” (Ayoob, 2000) and commented on how juries can be influenced by media impressions of assault rifles (Rauch, 2004). Owners of such weapons are portrayed as deranged and militarized appearing weapons are demonized. Even in the overall gun culture there can be a dichotomy of views. Bartholow, et al (2005) found that hunters had negative views about assault weapons as compared to guns primarily designed for sport. A gun writer - Jim Zumbo unleashed a firestorm on himself when as a hunter he denounced assault rifles and later had to recant (Zumbo, 2007).

Cont:

Will It Hurt Me In Court?

2

How did they control for the varying competence of counsel in the cases?

B_C

3

An excellent question I can’t answer. If the answer’s not found in the full paper (linked), you might want to contact the author on that. An important variable no doubt.

4

They are the legal experts, not me. However, I believe that your locale plays a part. For example in California people would possibly not be as welcoming to an “assault weapon” like they would be in Nevada, Arizona or Texas.

I also think that this is where a true weapons expert would be invaluable. Hypothetically if i were to use my SBR (we have discussed this topic elsewhere) I would bring out the following points.

  1. SBR’s are tightly regulated by the BATFE and an application is only approved after carefully reviewing the applicant’s paperwork and background.

  2. The same applies to the suppressor.

  3. The AR rifle is one of the most common types of rifles in use throughout the United States and in use by our nations military, as well as hundreds of police and security agencies.

  4. The potential for over penetration (collateral damage) with a 5.56 round is less than that of a 9mm FMJ and even more so with an SBR due to decreased muzzle velocity.

  5. The suppressor could be justified as a tool which helps to prevent permanent hearing loss (especially when fired in confined spaces). One could also point out that they are also used by LE agencies.

  6. One may even be able to state that the weapon is more accurate which again would point to concern about collateral damage.

There may be even more things, but this is what comes to mind. I also think that above all else your shoot has to be clean. Doing things like calling 911, not going outside to confront whomever (unless necessary) as well as repeated warnings to the “suspects” that you are armed shows that you acted with restraint and used deadly force only as a last resort.

5

When it comes to getting charged with murder, it is important citizens understand the elements of the offense in question. If even one element to murder is missing – then charging it becomes impossible. Know what justifiable homicide is in your state of residence, and be sure to meet those elements.

It’s like the ingredients to a toll house cookie. If you’re missing something important like the toll house chocolate chips, you may still have something sweet and gooey, but it isn’t toll house cookies.

Murder, manslaughter, justifiable homicide and all codified offenses have elements (ingredients) that make up the offense (the recipe). If you don’t have all of the ingredients – you don’t have the recipe.

Do what you know is right, and you can avoid giving the complete recipe to the prosecutor. The attorneys can make noise and try to make hay – but in the end, if it was truly self-defense – then there won’t be any malice aforethought.

In a nutshell, training for the legal aftermath is just as important. Prepare to be sued, even if the shooting is deemed justified. The burden of proof in criminal cases is “beyond a reasonable doubt,” but the burden of proof for civil matters is merely “preponderance of the evidence (51%).”

Remember, the attorneys don’t argue the facts – they argue the spin on the facts. Do what’s right, and you don’t have to worry about the spin.

If the police find blood splatter inside your master bedroom right at the threshhold, and you wisely had a open line to recorded 9-1-1 when the crooks kicked in your door – well, the fact you used a rifle will mean very little. Even the dumb cops can figure that one out.

Exercise your right to remain silent and encourage your family members to do the same. The Fifth Amendment is five words: I want my lawyer NOW.

Oh, and know what attorney you want to call, before you need one.

That’s the basic stuff. If in doubt, add Legal Aspects of Deadly Force to your training regimen.

6

Prosecutor: “Why did you use an assault weapon for so-called ‘self-defense’?”

Defendant: “It’s an AR-15 and I used it to protect myself against the criminal element because that is the same rifle that the police use to protect me against the criminal element.”

7

VERY well put. I think we should all memorize this.

8

Will, I think you are spending too much time on silly forums where they routinely debate whether or not one should carry with a round in the chamber, tell implausible ‘it happened to me’ stories, and ask silly 'what if’s."

I read Glenn Meyer’s study over. To be fair, it would take me about 6-8 hours to debunk it. If I get the time and inclination later, I might try. In short, he conducted a limited study that was biased to turn out the way he wanted it to. It left a lot of specifics unanswered with regard to exactly how many mock trials he conducted, the specifics of those mock trials, and out of how many mock trials the jurrors ruled against the defender.

Branscombe, Crosby, and Weir (1993) conducted mock trial research involving a homeowner who shot a burglar, and found incompetent male shooters and competent female shooters were dealt with more harshly than the reverse pairing.

This study was conducted 17 years ago when ARs were not nearly as prevalent or popular with civilians or Law Enforcement. Now it would be a simple matter to point out that the AR-15 is the most popular longarm in America and even take the jury on a fieldtrip to a Sports Authority or a Gander mountain and point out all of the civilian ARs, or to point them to the longarm in PD cars.

When you here prosecutors bring up the fact that someone used an “assault rifle” to defend themselves, it is generally cases where someone really screwed up and used the gun improperly, and the use of the so-called assault rifle is not in itself the reason that they were being prosecuted.

Look at the recent case where someone was arrested in Nassau County for firing an AK outside of his home for reckless endangerment. It is hard to argue that the shooting was unavoidable when you safely left the scene to go into the house to retrieve your weapon and then returned to the scene. Yet some people will try to spin this as proof you can’t defend yourself in NY State or cannot do so with a military style semiauto.

Another case comes to mind where a someone shot a neighbor who he was involved in an ongoing dispute with using an SKS. What happened was the neighbor threatened him in the building’s common hallway, the shooter went back to his apartment, retreived his SKS, and returned and shot and killed the man who threatened him. If he could safely return to his apartment, he could close and lock the door. It is hard to make the case that the shooting was unavoidable when you left and returned to the scene with a firearm.

Had the neighbor tried to force his way into the house, it would have been different. Also, shootings among people who know each others are typically treated more suspiciously than home invasion shootings.

Can anyone provide me a case of someone who defended his home against a home invasion and was tried for using an AR where the gun is otherwise legal to own?

Weapons appearance has been discussed in criminal cases. In a recent Court TV televised trial (Florida v. Roten, 2000), the defendant was accused of a hate crime shooting. Roten used a modified SKS (an older Soviet pattern 7.62 mm semiautomatic military rifle) with accessories that might make the rifle appear fiercer than some. A commentator asked why anyone would need such a weapon.

A typical tactic employed by the people trying to question the use of an AR for home defense.

First, this was a hate crime, presumably a homicide. The guy would be on trial regardless of what firearm he used. So it is intellectually dishonest of the writer to try to link this with a self defense shooting.

Secondly, there will always be people who question ‘why anyone would need such a weapon?’ If you are going to dictate your choice of firearms why won’t own anything more aggressive than an over and under shotgun.

Having said all this, I would not consider using an AR for home defense anyplace where you cannot legally own one, like NY City, and would be very careful and possibly consider using something else in states that restrict it like NY, NJ, MA, CA, etc. Each of those states has their own restrictions, which vary from special licensing, legal possession of only pre-ban guns and magazines, to outright bans on magazines that hold more than 15 rounds (NJ). In those states I would consider using something else as a home defense longarm, such as a Remington 870 with an 18" barrel and extended magazine, or an M1 Carbine gunsmithed to work reliably with softpoints. Just don’t try with the M1 Carbine in NJ, because I believe that they have been outlawed there.

9

Exactly. I live in Florida, I am a law abiding citizen, we have a “stand your ground law”. I can use a howitzer in defense of me and mine and not have to worry about going to jail. God I love this country.

Hyperbole aside, a good friend of mine, who is an LEO, said he will only use the firearm that he is certified in defense of self, family and home. His decision is based solely on his experience in the courts and a desire to avoid legal entanglements should he ever have to pull the trigger when not on duty. The reasoning is based on the same type of thinking that is found in this article from 2009. His experience shows that if he uses any other weapon other than one he is trained on, it gives the opposing attorney ammunition (no pun intended) to use against him. Envision the attorney painting him as a blood thirsty homicidal maniac who only needed the flimsiest of excuses to unleash his inner rage and secret desire to kill and bask in the death that he caused.

I on the other hand am just a lowly civilian and so long I am defending home and hearth and I do it in FL (or TX or any state with a stand your ground law) I am baiscally home free regardless if I used an AR or wheel gun.

It is still frustrating that there are those good citizens that have to fear this type of insanity for simply defending themselves from the bad guys.

10

The article on http://www.astcweb.org/public/publication/article.cfm/1/21/5/Weapons-Issues-and-the-Fears-of-the-Legally-Armed-Citizen was not clearly written. it does not specify exactly how many mock juries convened and how many found the shooters not guilty vs. guilty, or even whether the mock juries were intended to decide between guilt or innocence or whether the juries were passing sentence on those who they were told had been found guilty.

If we don’t know the number of mock trials, it’s impossible to tell if they even used a statistically valid number of, or if they did a statistically invalid number and ran with those since it supported the conclusion that they wanted.

The scenario they used is defined as such, and the whole thing seemed constructed and skewed against the AR.

Here is the scenario:

“First, the written presentation described the incident in factual terms: A homeowner hears a sound at night, downstairs, and investigates. The homeowner comes to the foot of the stairs and is armed. A burglar is discovered in the act of stealing a VCR. The homeowner challenges the burglar by pointing the firearm at him and ordering him, “Don’t Move”. The burglar responds with a curse and a threat to kill the homeowner. The burglar does not have a visible weapon. The homeowner then shoots the burglar twice, killing him. After the shooting, the homeowner calls 911 immediately and informs the police of the actions of the burglar described above.”

First, in many states the shooter would not even wind up in court for a shooting in the circumstances as described–especially if we are talking about a state with Castle Doctrine?

Further, in the scnario the criminal is dead with no witnesses. Even in more restrictive states there is a question as to whether the defender would be prosecuted if he would make a statement like, “the man said he was going to kill me and dropped the TV set. I thought he was going for a weapon so I had no choice but to defend myself.”

Now, if he made a statement like, “I shot him by accident; I didn’t mean to kill him, I didn’t want to shoot him,” etc, I don’t think using a double barrel shotgun would have saved him from going to trial in some states because according to his statement the shooting was unintended and he did not feel that his life was threatened.

Also, the study/article made mention of the fact that people who used the AR tended to get longer sentences.

Okay, so either Meyer set the thing up by having mock jurrors decide on a sentence of someone who they were told was already guilty, or the mock jurors found everyone guilty regardless of what firearm they used.

So they found you guilty regardless of what gun you used.

So what is the point?

You might as well use the study to urge people against using a firearm in home defense as they will be found guilty of murder if they shoot someone.

Further, Meyer seems to recommend the use of a mini-14 over an AR for home defense because of its more inocuous appearance than an AR. Go start a thread here stating that the Mini-14 is a better home defense weapon than an AR because it looks better in court and see how that goes for you.

11

I’d love to see such a study done on race and perceived socioeconomic status.

12

Ed,

You make some very valid points. I skimmed through that whole article by them because it seemed like alot of tripe.

I also agree with PRGGodfather. A shooting is either a good one or it is FUBAR.

13

I totally understand where you are coming from, but allow me to say that just because you, your friends, and even public opinion thinks it is a justified shooting, you may still get charged with a crime and put on trial should the DA want to prosecute.

And once you are on trial, the prosecutor will likely use against you whatever he has at his disposal to paint you as an off kilter raving blood thirsty maniac looking to kill someone, from the ugliness of your gun, to the “armor piercing/black talon/cop killer bullets”, to the “hair trigger modifications” you put on the gun, to the “death scope” you were using, just to increase the body count.

Is it unreasonable? Hell yeah. Can most if not all of those ridiculous scare tactic attacks be dismantled? I believe so. But we can’t be too optimistic, and we have to prepare for the worst, because sometimes even so called “good shoots” will be seen as unholy by an overzealous DA, and once you are on trial, well by definition the concept of “good shoot” is defunct and irrelevant until the verdict comes in.

I still use hollow points for my pistols and tend to have an AR15 handy for self defense purposes, but I do realize that if, God forbid, I have to I fire up some gang bangers trying to kill me or my family, and I wind up on trial for whatever reason I’ll have to defend my choice of weapon in ways that I’d never have to do if I was using a single shot .410 shotgun!

14

It depends on your local DA if you are involved in a shooting and some one dies the detectives have to find and present the evidence to the DA then the DA decides if he will charge you or not. And he decides that if he or she thinks they can get a convection on it or not.They are supposed to have a public obligation to prosecute any crime.

To the OP the type of weapon should be irrelevant show long as you are legal to own it. Just unfortunately life doesn’t always work that way.

15

I disagree. And when this was discussed previously in another thread the same points were made. As far as I know there was only one case that anyone could find that was prosecuted because of an “evil weapon”.

And in Arizona are laws are pretty forthright when it comes to self defense. I have faith in the system here. When I say good shoot, I don’t mean my definition. I am talking about a legal standard (at least in this state).

Things like not shooting through doors or windows, chasing someone outside and shooting them or similar stuff. If I am in public and I can avoid a confrontation I will do so, trust me.

If I am at home I will call 911 (if possible) and I will take up a defensive position. In the aftermath I will shut my mouth and contact a lawyer.

16

The AZ legislature changed the laws a few years back. If a person claims self defense the prosecutor has to have evidence that you acted with malice or otherwise unlawfully before they can charge you. I can’t remember the exact wording off the top of my head.

Here is the plain English language explanation of our self defense laws.

[i]The adaptation of the Arizona Castle Doctrine (Senate Bill 1145) reversed the laws back to be in favor of individual citizens, not prosecutors. The Castle Doctrine has 5 main points:

(1) Previously, “justification” defenses, including self-defense, were affirmative defenses. The defendant (or self-defender) had to prove them by a preponderance of the evidence (i.e., proof of "more likely true than not). Under SB 1145, if the defense presents “evidence” (quantum undefined) of justification, the prosecution must disprove justification to a “beyond a reasonable doubt” standard. This change is not limited to defense of home or car, but applies anywhere.

(2) No duty to retreat before using force to prevent certain serious offenses, including aggravated assault. Again, this applies anywhere, any place a person has a legal right to be, in the language of the law.

(3) A person is presumed to be justified in using force or deadly force if he/she reasonably believes they or another person are in imminent peril and the attacker has entered or is trying to enter a residence or occupied auto. Once again, there is no duty to retreat.

(4) A person is generally presumed to be justified in use of force if the attacker has unlawfully forced his way into residence or car or is trying to do so (with certain exceptions, such as if the person forcing in had a legal right to be in there). This means that justification is automatically presumed when a person uses physical or deadly force against an intruder. It is now the prosecutor’s job to prove there was no justification, which once again falls within our legal system’s concept of innocent until proven guilty.

(5) If the aggressor is foolish enough to sue, and the defender wins, the defender recovers attorney fees and lost income (presumably, lost while at the courthouse). This not limited to the home invasion situation.
[/i]

17

Can you find some specific cases where this was the case, where the gun was legal to own and legally owned by the defender where the defender did not screw up majorly in some other way?

18

The only two that come to mind are the following.

Gary Fadden case (used a select fire Ruger AC556) and the recent case in Arizona of Harold Fish (believe it was a 10mm handgun with dreaded hollowpoints).

In the Fish case his case was overturned by the Arizona State supreme court and I believe that his conviction was expunged and he had all of his rights restored.

19

Neither of those were home defense cases.

Ayoob has been trotting the the selectfire AC556 forever. That was like over 20 years ago, and it resembled a road rage situation in that it started as an ego dispute with one person mouthing off and another answering.

It’s not accurate to say that Harold FIsh was arrested or prosecuted for using hollowpoints

The big issue with Harold Fish is that he shot at an unarmed man who he claimed attacked him multiple times. One or more of those shots were in the man’s back, which may have resulted when the attacker suddenly turning to flee as Fish was in the process of shooting him. This is not the same as shooting someone who broke into your home, since there is a much higher standard of proof required when shooting someone who was unarmed on public land or a hiking trail as opposed to someone who has broken into or is trying to force their way into an occupied house–thus demonstrating their threat to you.

The bigger issue was that Harold Fish made too many statements to the police without a lawyer present. Several of those statements were contradictory–like what the guy said when attacking him and at what time the shooting took place, etc. In the immediate aftermath of the shooting, the prosecution siezed on these contradictory statements and claimed that Fish had deliberately waited before going for help.

As for the prosecutions issue with the hollowpoints, it reflects upon the weakness of the defense counsel. All the defense counsel had to do is ask the court balif what his gun was loaded with, and it would have been hollowpoints. Likewise they could point to the fact that 99% of law enforcement agencies in this country issue hollowpoints.

20

Those are the same cases that I had to use as an example. Look, I hope that you guys are right, but again, there are precedents for this as per the above examples. It is not common, and I wouldn’t get too excited about it, I just think that you have to be ready to defend your choices. And Fish’s case was overturned, but he went through the ringer big time before his case was overturned. I also seem to remember that his counsel was a total fiasco when it came to defending the use of a 10mm. And I’ll reiterate, a politically driven DA wanting to get a conviction on a potentially high profile “assault weapon” case may indict for political reasons/to make a name for himself when he runs for mayor, even if the shoot seemed justified.

For example lets say that you shoot an attacker on your property, at night, that instead of ceasing and desisting upon being verbally challenged and warned, instead rushed at you holding what you thought was a knife, but that turns out to be a pocket comb or some such, or points his gun at you, only it happens to be a cell phone, is other wise unarmed, and oh by the way he is a minority, and the town you live in has an anti gun DA. And you are the owner of a few “assault weapons”. Call me paranoid, but if such a DA decides to indict you, I don’t think that he’ll be nice enough not to try to assassinate your character and motives by pulling the jury’s heart strings based on the type and number of guns you have, and the accouterments that you have adorned your rifle with. It may be as simple a defense as using that great line above, about you taking a cue from your local PD and using what they use, but a more rigorous defense may be needed, and I say we ought to be mentally prepared for that contingency.

I posted this before you posted Ed. L. and so I’ll add this to my scenario, as you shoot him he spins and he takes one in the side or back, not uncommon, so now the DA is charging that not only did you shoot an unarmed man, but you shot him in the back, that coupled with your “bad” guns can make for a bad day in court, and your counsel needs to be prepared for this I think.