Revisiting the Harold Fish incident

[scsov509]

The FBI got rid of the 10mm handgun because they found it was to much gun for most of thier agents...

The FBI got rid of the 10mm because it was too much recoil for some agents, and because the 10mm frame is too large for those with smaller hands. At no time however has the FBI said that the 10mm was excessive for a service round, and a defense attorney should have done his homework and had an FBI witness to testify as such so as to counter the allegations that the 10mm round was an excessive caliber for personal defense.

Very few LE agencies in the US ever adopted the 10mm, much less kept it around.

I don't know upon what you base this statement, but my personal experience differs. My agency is the largest on our half of the state, and was issuing the 10mm when I started in 1999. We switched to the .45 around 2003, which is by the way only a year prior to the incident in question, and did so because our Smith and Wesson 10mm's were not functioning well. I'm told that it was more cost effective to switch to stay with Smith and Wesson and switch to the .45 than to switch companies altogether and stick with the 10mm. However, our decision had nothing to do with the cartridge being in any way excessive, which is the argument the prosecution made.

Someone should have cried foul and confronted this allegation showing first of all that some agencies have and do use the 10mm as a service cartridge, and I'd suspect that in 2004 there would have been an even larger number of agencies still using the 10mm. Our agency alone could have provided an example of one sizable department that was doing so only a year before this incident. But if one is to argue that there is a case in support of the 10mm being excessive because some agencies have moved away from it, then that claim too needs to be confronted by examining the reasons why said agencies moved on from this cartridge.

I'd submit that if you talk to those actually in the know, those making decisions at an agency level to make these changes, you'd find that no one has suggested that the 10mm was excessive. Is the recoil sharp? Sure. Is the frame of a 10mm too large for those with smaller hands? Sure. Is the 10mm a more expensive round than other possible service rounds? Certainly. However, none of this has to do with the round itself being excessive in the sense this prosecution argued. This trial should have been about Fish's decision to use lethal force, and this prosecutor should not have been allowed to cloud that question with this whole issue of caliber. Ridiculous, irrelevant, and one more indication that the judicial system is broken.:barf:

 

[heyduke]

Man gets railroaded by our justice system?

Three cases come to mind right here in NC that have been in the news

1. Darryl Hunt
2. Kalvin Michael Smith
3. The Duke Lacrosse team

Just because men wear badges or work for the court system to put bad men behind bars, don't assume that their intentions are honorable and just.

 

[Sparks2112]

Musketeer

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

Doesn't the FBI use MP-10's instead of MP-5's? (I'm pretty sure they do...)

 

[Musketeer]

I believe the designation is MP-5/10 and yes they are still out there. One agent shoots at a range with a buddy of mine and swears by his. They wanted to give him a CAR and he refused since the MP-5/10 was so handy.

 

[David Armstrong]

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

Exactly. You're not thinking like attorneys or juries, which is the problem. "The FBI had to go to a weaker round, the 10 was so powerful."

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

Nope, as they have a long history of successful use by LE. The 10mm does not. Got to quit thinking like gunnies here and learn to think like attornies. Validated or invalidated is fairly irrelevant, normal/common versus unusual can become relevant, especially when the "unusual" can also be presented as more harmful.

and a defense attorney should have done his homework and had an FBI witness to testify as such so as to counter the allegations that the 10mm round was an excessive caliber for personal defense.

Doubt that it would matter. Hard to win an argument by saying "our agency got rid of it as a handgun because so many of our agents couldn't handle it."

I don't know upon what you base this statement, but my personal experience differs.

I base it on the facts. Very few agencies adopted the 10mm, fewer have stayed with it. Those are just facts.

you'd find that no one has suggested that the 10mm was excessive.

Mmm, maybe the FBI Firearms Training Unit?
{Dick Metcalf, 1999, discussing the 10mm} Although it was selected by the FBI for use in the field, their Firearms Training Unit "concluded that its recoil was excessive in terms of training for average agent/police officer competency of use and qualification," ....

Ridiculous, irrelevant, and one more indication that the judicial system is broken.

It's not broken at all, it is just that some know how to play it better than others, which is all the more reason for us to learn how to play it also.

 

[Musketeer]

Exactly. You're not thinking like attorneys or juries, which is the problem. "The FBI had to go to a weaker round, the 10 was so powerful."

You might realize that the FBI 10mm load is almost identical to the .40 they use now. The change was guns with smaller frames allowing those with smaller hands to better grasp it. The recoil problem was due to a poor fit between the shooter's hand and the weapon, not excessive recoil in the cartridge. The proof of this is to look at what 10mm ammo was issued and compare it to what .40 ammo replaced it.

Sorry, but I have been down this path before. Your argument does not hold water. Certainly a prosecutor can try to make it but a COMPETENT Defense Attorney can easily tear it apart. The defense here though was INCOMPETENT on several fronts, caliber being only ONE.

There were SEVERAL ways to eliminate the attack on the gun, caliber and bullet, defense was just too stupid to do so.

 

[MaxHeadSpace]

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.

Any half competent Prosecutor will enter that statement into evidence and argue that it's "rehearsed" . . . That it appears repeatedly in gun forums and is presented as the "rubric" for establishing "self-defense."

The ONLY statement to make is: "I want an attorney."

Once you say that, questioning stops.

Statements after that should be limited to things like, "The cuffs are kinda tight." And, "You wanna brace me while I get in the back of the cruiser?" "I need to pee."

 

[Tennessee Gentleman]

I have read a bit about this incident. What I read when reporters talked to the jury after the trial indicated that the 10 MM and hollow points didn't really figure in their decision. What the jury felt was that Fish overreacted to the situation and that is why they convicted him. They knew the other guy (Kuenzli) had some violence issues and many of them said they wished Fish had taken the stand to tell his side of it. He chose not to. One question I have had about this one was that Fish had a walking stick but did not use it to fend off the dogs but went straight for the gun and threw the stick away. I am not sure at all about this one being justice denied. This has been discussed before BTW many times on this forum like here: http://www.thefiringline.com/forums/showthread.php?t=242056&highlight=harold+fish. My takeaway? Try real hard NOT to shoot somebody.

 

[David Armstrong]

You might realize that the FBI 10mm load is almost identical to the .40 they use now.

I realize that the FBI settled on a downloaded version when they found the full 10mm to much. The jury won't realize that, won't care about that, and it is immaterial as Fish was using the full power loads, IIRC.

Sorry, but I have been down this path before. Your argument does not hold water.

Really? Tell that to Mister Fish. That's what so many always miss. We're gunnies. We know better. The jury is not gunnies. In fact, they will probably try hard to get anyone who knows much about guns off the jury. The argument does hold water WITH THEM.

Certainly a prosecutor can try to make it but a COMPETENT Defense Attorney can easily tear it apart.

That's a heck of an assumption that, if I may borrrow a phrase, doesn't hold water. It is not easy to tear it apart, as both sides will bring forth experts in the field who will testify on the issue. I've just pointed out the easy stuff....the FBI dropped it, no major agency uses it, the FBI said it was excessive for their agents. A jury will just drool over that stuff, and we haven't even gotten to the real bad stuff. Can it be beaten? Sure, but don't assume it will be easy, and even if it is easy don't assume the jury won't latch onto it. I've seen way to many totally insignificant things be just the item that tipped the scale in jury trials. Personally, based on my knowledge of the case, I think that is what happened. Several factors were against Fish, it is not nearly as clear-cut as some would suggest, and so on. The "super gun with the deadly bullets" may have just been the icing on the cake for the jury to say "this guy was wrong."

The defense here though was INCOMPETENT on several fronts, caliber being only ONE.

Just out of curiosity, have you read the court transcript?

 

[quinn2187]

so those of you saying you should carry the same thing the local PD carries are saying that its wrong to carry a gun that will do what its intended for just because some prosecutor might say its to big? any reasonable defense attorney would squash that in a heart beat. and as far as hollow points go they ARE the standard for self defense rounds.

 

[JohnH1963]

I posted this in another thread and feel its probably best to go here as well. I posed a question at the end of the original post. What if this where a law enforcement officer or park ranger in the same scenario? Would the result have been different?

There is one key difference between law enforcement and the CCW holders.

The difference is that the law enforcement officers have an experienced set of attorneys and the trust of the court system/general public. They have recorders and video cam setups to provide as evidence to protect themselves against lawsuits. They are experienced and trained at testifying in a court of law and being questioned by defense attorneys. The officer has been to court many times and knows the procedures. etc.

The CCW holder, on the other hand, has none of this. No experience, no training, no set of experienced attorneys, no cameras...

The one thing a CCW holder can do is to get training. There are many NRA courses out there that are available. Lets say you do get involved in an incident, then you can say that you did receive training and that will make you look like more of a good guy then a cowboy.

If Harold Fish took this one course, he probably would not be in jail today...

http://www.nrahq.org/education/training/basictraining.asp#rtbav

The NRA Basics of Personal Protection Outside The Home Course is both comprehensive and intensive in its approach to equip the defensive shooting candidate with the skills needed to survive serious adversity. The course teaches students the knowledge, skills and attitude essential for avoiding dangerous confrontations and for the safe, effective and responsible use of a concealed pistol for self-defense outside the home. Students have the opportunity to attend this course using a quality strong side hip holster that covers the trigger, or a holster purse. From a review of safe firearms handling and proper mindset to presentation from concealment and multiple shooting positions, this course contains the essential skills and techniques needed to prevail in a life-threatening situation.

The NRA Personal Protection Outside the Home is divided into two levels (basic and advanced). Level one is a nine-hour course and offers the essential knowledge and skills that must be mastered in order to carry, store, and use a firearm safely and effectively for personal protection outside the home. Upon completion of level one, students may choose to attend level two, which is an additional five hours of range training and teaches advanced shooting skills. After the classroom portion, students should expect to spend several hours on the range and shoot approximately 100 rounds of ammunition during level one. Level two involves five additional hours on the range and approximately 115 rounds of ammunition. The ammunition requirements are minimum and may be exceeded. Students will receive the NRA Guide to the Basics of Personal Protection Outside The Home handbook, NRA Gun Safety Rules brochure and the appropriate course completion certificates(s), NRA Basic Personal Protection Outside The Home (identifies strong-side hip holster or purse use) certificate, NRA Advanced Personal Protection Outside The Home certificate, and Lesson Plan (print 11-06).

The NRA Basics of Personal Protection Outside The Home participants in this course must be at least 21 years of age and possess defensive pistol skills presented in the NRA Basics of Personal Protection In The Home Course. Participants must also understand the basic legal concepts relating to the use of firearms in self-defense, and must know and observe not only general gun safety rules, but also those safety principles that are specific to defensive situations. Prospective participants can demonstrate that they have the requisite knowledge, skills, and attitudes by producing an NRA Basic Personal Protection In The Home Course Certificate, or by passing the pre-course evaluation.

Note: The Lesson III of the Personal Protection In and Outside The Home courses Firearms and the Law, and Legal Aspects of Self-Defense is conducted by an attorney licensed to practice law within the state in which this course is given and who is familiar with this area of the law, a Law Enforcement Officer (LEO) who possesses an intermediate or higher Peace Officer Standards and Training (POST) certificate granted within the state, or an individual currently certified to instruct in this area of the law by the state in which this course is presented.

NRA Certified Instructors may conduct this lesson only if they meet the requirements stated above and then only in their capacity as an attorney, or other state certified individual not in their capacity as an NRA Certified Instructor.

 

[onthejon55]

this is sad. what a waste of jail space. heres a good man who shot someone under mare than questionable circumstances and hes put in jail right next to worthless scum

 

[WeedWacker]

Here is what I see:

1) no witnesses. It is his word only and no one else can say "I was there and here is what I saw"

2) the case went to trial because family of the deceased and a friend of the deceased said "he was a good man and wouldn't hurt anyone"

3) Records of random violent behavior towards others who angered him or crossed him in any way were barred from court

It sounds to me like this case was based on heresay and emotion on part of close relatives and a friend as sated in point #2.

4) prosecution used ad-hominem against the defendant saying he was fearful and irrational in his shooting yet defense was not allowed to do the same to the deceased


If you ask me the judge should be thrown out, the jurors told to go back to school, and Mr. Fish should go back to hiking in the wilderness with a full auto 10mm MP10 given to him free of charge by the gov. (tongue in cheek here) It was a good shoot and by all accounts when the police said "It was clear self defense" there was no other evidence to suggest otherwise. All it took was for some vengeful sister and a friend to call him a murderer. :barf:

 

[David Armstrong]

so those of you saying you should carry the same thing the local PD carries are saying that its wrong to carry a gun that will do what its intended for just because some prosecutor might say its to big?

Nope, nobody says that. What is said is that carrying the same gun/ammo as the local PD tends to shut down a potential area of attack, and that carrying unusual guns/ammo opens a potential area of attack.

All it took was for some vengeful sister and a friend to call him a murderer.

Plus a story that really didn't seem to make much sense the way he told it. Plus the findings of the medical examiner that also raised more than a few questions. Plus a few other things. Not to say he was guilty of anything, but let's be honest about the case.

 

[MaxHeadSpace]

Hard to know what happened. Dead bodies provide lots of evidence -- That's basic forensics. There seem some real inconsistencies in testimony from Fish. It's hard to believe the jury could view this "beyond a reasonable doubt."

 

[pax]

http://proarms.podbean.com/2008/11/23/015-the-10mm-review-the-harold-fish-case/

Worth a listen.

pax

 

[csmsss]

There seem some real inconsistencies in testimony from Fish.

How can that be? He didn't testify at his trial. Or are you referring to supposed inconsistencies in statements he (foolishly, IMHO) made to the police?

Fact is, in the immediate aftermath of a shooting, your faculties are probably not entirely intact. Further, the nature of human memory is that recollections evolve/change over time, and it's quite common for witnesses' statements to reflect this. Fish should never, ever have gone on record with the police before he had engaged competent legal representation.

What probably doomed him from the very beginning was inhaving to assert an affirmative defense with no corroborating witnesses. He had an uphill battle, made all the more difficult by a prosecutor intent on manipulating a gullible jury poorly versed in technical firearms issues, and was poorly represented to boot.

 

[BuckHammer]

Isn't it true that by using an affirmative defense, such as self defense, you assume the burden of proof? I really don't know for sure if that is only in some states or not at all. If that is indeed the case, then he needed to do far better than beyond a reasonable doubt. However, I really don't know, but would like to, if a lawyer wants to chime in.

 

[FM12]

WEEDWHACKER: Thank you, and ditto!!

 

[Rich Miranda]

An important fact:

DAs' and prosecutors' performance is based mostly on their conviction rate percentage. This means that if they think that they can convict you, they'll sure as heck try.

They don't care about the spirit of the law. They care about the letter of the law. They don't care whether the law is wrong, or whether it really shouldn't apply in a certain case. If they can convict you and up their conviction rate, you WILL be prosecuted.

With regard to the fish case, the law he broke was later changed, which in essence proves that it was wrong. Did the prosecutors know this ahead of time? Of course. Did they care? Hmmph.

The irony is this:
Law-abiding citizens who happen to end up as defendants tend to plead Not Guilty because (shocker!) they believe they aren't. Now get this: real sleazebag criminals will plead guilty to a minor offense (plea agreement) because (another shocker) they know they're guilty. And (drum roll) defendants who cop a plea get LESS time than those who put up a defense!