Revisiting the Harold Fish incident

[Musketeer]

3. Utilizing a caliber that the local police department does not use.

You do realize that an agency no less prestigious than the United States FBI specifically chose that round after millions of dollars in tests and issued it to all its officers?

Of course Fish's incompetent lawyers didn't bother to defuse the caliber issue with any intelligence, or do much else right.

Bad lawyers will send you to jail and Fish had two of them.

 

[Musketeer]

My question is...

Is Mr. Fish on the list for a Presidential Pardon?

The law has been changed since his shooting and he clearly was the victim of incompetent lawyering. If Bush is as big a supporter of CCW as he claimed to be he should step up to the plate here (if it has been brought to him.).

 

[nazshooter]

About caliber and bullet type:

It seems like if Fish's lawyer had recognized that the jury would care about the caliber and bullet type used it wouldn't have been hard to find an officer in a jurisdiction where 10mm are standard issue. I don't know if hollowpoints are standard for most PDs but they are certainly very common.

 

[MK11]

The point isn't whether caliber/ammunition is a ridiculous thing to focus on, IT WAS. The prosecution will use whatever it can to make it's case. Remember, Fish wasn't even charged until a group of "dog lovers" started putting pressure on the DA to file charges (and the DA somehow suppressed testimony that the man Fish shot had a severe anger problem and had threatened others in the past).

Forget Law & Order reruns. Just like with defense attorneys, the object for most DAs isn't justice, it's to win.

 

[David Armstrong]

That, sir, is pure nonsense. We drive different vehicles than the police do, we wear different clothing than the police do, etc. etc. The prosecutor was guilty of misconduct for making this argument, as was the judge for allowing it to be heard by the jury. We are each of us entitled to use any legally owned firearm we wish to defend ourselves.

Just as the jury is entitled to use any legally presented evidence they wish in deciding your fate, which means that far from "pure nonsense" it is actually pretty good advice.

 

[Garage Dog]

Great discussion. Really, after this is all boiled down it shows what happens in a political correct society. Yes, it's clear Fish had poor representation and mistakes were made but it is also very clear that Fish acted reasonably given the situation. Slick lawyers and a society dumbed down leads us to where we are today.

 

[KChen986]

The judge threw out evidence of the victim's menacing/personality disorders. I say that calls for an appeal.

 

[Chinny33]

uh-oh

now im scared to carry my gun!

I would rather die than be found guilty because some morons cannot understand the laws they are hired to uphold. No innocent person wants to go to prison for 10 years with TRUE criminals.

Is this guy STILL in prison?

Geeze...I carry a Glock 20, 10mm in the wilderness sometimes too.

:barf:so so so so sad.:barf:

 

[nate45]

Never, ever talk to the police.

Never, ever, ever, for any reason answer questions or give a statement to the police, without the advice and presence of an attorney.

"I was afraid he was going to kill me. I shot him to save my own life. I'd like to speak to a lawyer before I answer any more questions."

I can go along with that, a lawyer may come along and tell us that was to much information, but it sounds reasonable to me.

None of the evidence about timelines, or not remembering what the man he shot said, etc would have been presented at the trial. In fact there probably would not have been a trial, if Fish would have kept silent.

 

[KChen986]

It's a very very borderline case. I thought evidence of the 10mm "HOLLOWPOINT!!!" took advantage of the juries ignorance. 10mm is a great anti-bear round, and as someone else pointed out, was utilized by the FBI at before.

I didn't read any evidence between the physical fitness between two parties. One person was a fire-inspector (big bulky, burly, young and in shape?) and the other was a retired school teacher (57, perhaps frail?). That may have established a more reasonable use of deadly force...

It's too bad the case turned out the way it did. Hopefully he'll get his sentence abrogated in to probation.

 

[scsov509]

It wouldn't have been hard to find an officer in a jurisdiction where 10mm are standard issue.

Like say the FBI, who used the 10mm from about 1986-1990 before the adoption of the 40 S&W, which incidentally is one of the most popular service cartridges in the United States right now and was introduced into the market as more moderate version of the 10mm to accomodate a wider variety of shooters? I mean listen, if someone wants to make the case that the 10mm is not an excessive cartridge, then it's not hard to look at the FBI's extensive studies done during that timeframe prove the point. The 10mm is an exceptional service cartridge, and is still in use by many law enforcement agencies in the United States for this very reason.

The truth is that: 1) The defense should have been better prepared to combat this ridiculous allegation, and 2) this sort of crap shouldn't be allowed in a court of law when it has absolutely no bearing on the facts of the case in the first place. The facts are that the handgun itself was legally owned and carried, and that Fish had also completed a fair amount of formal training on defensive shooting with this weapon. A prosecutor shouldn't be allowed then to make an argument about something like this when it is immaterial to the hard facts.:barf: Tell me, how is it that the prosecutor gets to bring into question the caliber of the defendant's weapon while the defense doesn't get to introduce Mr. Kuenzli's past history of violence? It's a ridiculous double standard that reeks of prosecutorial misconduct and abuse of power in the legal system.:barf:

 

[Musketeer]

Never, ever, ever, for any reason answer questions or give a statement to the police, without the advice and presence of an attorney.

This can easily be taken too far. You have a right to not incriminate yourself but when it is a question regarding public safety where incriminating yourself is not an issue the answer is not so clear. Just be aware of it.

Personally my answering of questions after a shoot would be held only to those things immediately visible absent of opinion with the addition of "I was in fear for my life and acted to stop the threat." After that it is lawyer time.

 

[csmsss]

Bottom line is they are going to take you to the police station REGARDLESS of what you say at the scene. The less said, the better. Request an attorney, and shut the hell up after that.

I have yet to see a statement made at the scene result in a defendant's acquittal.

 

[JohnH1963]

Here is the point and exact reasoning as to why you should use the local patrol officer's weapons and ammo exactly.

1.) Your greatest enemy after the incident is over is now the local prosecutor and police.

2.) Both the prosecutor and the police will use everything and anything against you to support their case.

3.) Just about anything can be twisted and turned into a negative. For example, if the local police are carrying 8 shot 1911s in .45 and you are using a P226 with a 20 shot magazine then the argument might be that the police do not feel the need to use such high capacity weapons OR lets say the police are using the P226 with a 20 shot magazine and you are using the 1911 in .45. It could be argued that the police don't feel the need to carry such a large caliber and you used the 1911 for its intimidating effect.

Another example is the rounds. Lets say you use the Winchester Ranger T series (ole Black Talons) and the police use the Federal Hydrashocks. It can be said that you used the ole Black Talon round that the police feel they dont need to use....

You see how the logic can be twisted about.

If you use the exact same rounds, pistol and caliber that the police use and the prosecutor sames something negative about your weapons choice, then they are essentially throwing their own police force under the bus. The prosecutor is not going to throw his buddies under the bus and opening up a can of worms by saying their local force is using inhumane or extraordinary weaponry that no one uses.

So if the local patrol officer is using a Glock 22 with Federal Hydrashocks, then thats what you use. The prosecutor isnt going to throw his officers under the bus.

Lets say the prosecutor mentions this in court and your attorney objects. The judge MIGHT instruct the jurors to disregard, but will the jurors really disregard? Will that bit of information suddenly disappear from their minds? What if your attorney is sleeping and does not object or doesn't have the sense to object?

Take note, Im not saying the police or the prosecutor are generally our enemies or adversaries. However, I think they should be viewed as such when you are sitting with a smoking pistol over a dead body. In that case, then your attorney is your best friend and everyone else is the enemy.

 

[Musketeer]

I have yet to see a statement made at the scene result in a defendant's acquittal.

Yet it will often result in the shooter not being charged.

Sorry, some common sense must be used here and many defensive shootings never progress to an arrest because all the pieces fell into place at the scene.

Don't get elaborate. Don't hypothesize. State only what they see and stick to having feared for your life and having acted to stop the threat. Beyond that is lawyer time. Saying nothing will GUARANTEE being guilty in the LEO's eyes first.

 

[Musketeer]

Here is the point and exact reasoning as to why you should use the local patrol officer's weapons and ammo exactly.

Sorry but you take a valid idea and stretch it too far.

So have you had the same training as the LEOs?

Have you had your proficiency documented regularly?

Does the city buy you your gun and ammo?

I don't think so.

You are in a different situation. While I would advise against any round advertised as a "Man Killer 3000" and using a Desert Eagle .50 with "FINAL JUSTICE" engraved on the side there is no reason to shy away from a legal standpoint from any commonly available ammunition type in general use or caliber functionally suited to the task.

Fish was hung out to dry on caliber and bullet type because his representation was stupid.

 

[csmsss]

Yet it will often result in the shooter not being charged.

Sorry, some common sense must be used here and many defensive shootings never progress to an arrest because all the pieces fell into place at the scene.

Don't get elaborate. Don't hypothesize. State only what they see and stick to having feared for your life and having acted to stop the threat. Beyond that is lawyer time. Saying nothing will GUARANTEE being guilty in the LEO's eyes first.

Nope. Only in the tiniest of tiny towns would this work. In every town and city of any size, all shootings will be investigated - not by the first cop called to the scene, but by detectives and professional investigators who will not be terribly impressed by what you volunteered at the scene (but who will certainly use it against you should it prove helpful to them).

Contrary to what you might think, I'm not suggesting never cooperating with the police nor never saying anything to them, only having a competent attorney with you when they do ask questions, so as to help you avoid making potentially contradictory or unintentionally self-incriminating remarks.

 

[David Armstrong]

I mean listen, if someone wants to make the case that the 10mm is not an excessive cartridge, then it's not hard to look at the FBI's extensive studies done during that timeframe prove the point. The 10mm is an exceptional service cartridge, and is still in use by many law enforcement agencies in the United States for this very reason.

Actually, that sort of helps the prosecutions case. The FBI got rid of the 10mm handgun because they found it was to much gun for most of thier agents, and very few LE agencies in the US ever adopted the 10mm, much less kept it around.

Tell me, how is it that the prosecutor gets to bring into question the caliber of the defendant's weapon while the defense doesn't get to introduce Mr. Kuenzli's past history of violence?

Because one (the gun) is pertinent to the case at hand, as it was used in the incident. The past history of violence is fairly immaterial for 2 reasons: 1, the defense can't use it unless Fish knew about it before the incident; 2, IIRC, the prosecution admitted to Fish acting aggressively during the incident, so there was no issue of if he could be violent.

 

[Musketeer]

Actually, that sort of helps the prosecutions case. The FBI got rid of the 10mm handgun because they found it was to much gun for most of thier agents, and very few LE agencies in the US ever adopted the 10mm, much less kept it around.

Which is why they have the .40 loaded to the same levels as the downloaded 10mm they issued.

No, you can still make the case the the FBI spent millions and decided it was the right round to use.

Note that the FBI also no longer uses the .357 magnum or 9mm so are those rounds therefore invalidated?

 

[Musketeer]

and there are still agents with arms in 10mm out there.