Modified Weapons and Civil or Criminal Defense
This is a discussion on Modified Weapons and Civil or Criminal Defense within the Defensive Carry Guns forums, part of the Defensive Carry Discussions category; Originally Posted by F350
Let's face it; if you are in an area with an anti-prosecutor he might try and make an issue over the ...
December 19th, 2011 10:33 PM
In Arizona, the Harold Fish case proved this to be true. Fish was set upon by two dogs while out hiking in the back country. One of the dogs had a history of vicious behavior against people, and Fish fired a shot in the ground to deter the dogs, which actually worked. But the psycho/disturbed owner of the dogs threatened Fish aggressively; Fish shot him a couple of times center mass with a 10mm auto, and the nut case died.
Originally Posted by F350
After initially being consoled by a sympathetic cop investigating the matter, Fish was charged with murder by a career-climbing prosecutor. It didn't help that the AZ law regarding self-defense being an affirmative defense had change, but one of the points the prosecution harped on was that Fish was an avid shooter and gun collector, and "why did you carry such a big gun" became a core issue.
Fish was convicted, but after more than two years behind bars, was freed after his (new) defense successfully appealed the case based on numerous court errors.
Cases of self-defense shootings with far more questionable circumstances have never even made it to trial out here. The point is, per F350's post, all it takes is a hell-bent prosecutor trying to make a name for himself, and your life can turn to mud in an instant.
Read more about the Harold Fish case here: Harold Fish Defense
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December 19th, 2011 10:44 PM
Originally Posted by gasmitty
Fish got fried because he made a long, factually incorrect, self contradictory statement to the police which resulted in them having no choice but to file charges.
The case came up for prosecution, and the prosecutor used everything he could to do his job - to put away a person who admitted he shot another person then couldn't give an explanation which was legally sufficient.
Yes. He hammered on the 10mm Glock.
Big deal. It was a trial tactic. Nothing more.
The weapon didn't put Fish into the hot oil, he did that himself.
December 19th, 2011 10:52 PM
None to both questions, but I have watched every episode of Perry Mason and Matlock made.
Originally Posted by MitchellCT
Freedom doesn't come free. It is bought and paid for by the lives and blood of our men and women in uniform.
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December 19th, 2011 10:53 PM
Well there's your problem. SVU and CSI are where it's at.
Originally Posted by archer51
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December 19th, 2011 11:13 PM
A lawyers' job is to make something out of anything that will help him make his case. The other sides' job is to keep it from happening.
I was sitting in a criminal court one time where the weapon involved was a factory stock M38 S&W. The prosecutor put the local sheriff on the stand, qualified him as an expert on firearms, and had him testify that it was the sort of weapon a professional would use. The defense objected and that was as far as it went.
Of course it was BS and anyone reading this forum would likely have had a good laugh - who knows what the members of the jury thought. Guns kill people, right?
So I guess we should worry about carrying a "professional" weapon as well as carrying a modified weapon. Personally, I think I'll spend my time worrying about putting more holes in the ten ring.
December 19th, 2011 11:44 PM
I've always heard this: once something is said in open court it could be very hard to un-ring that bell for some people. For example, they objected and maybe the judge says "you can't think about that statement blah blah blah". What does that do, make you think about it even more? People are people, you can be "right" till the cows come home, but it's still up to the people in the jury box.
Originally Posted by
I was sitting in a criminal court one time where the weapon involved was a factory stock M38 S&W. The prosecutor put the local sheriff on the stand, qualified him as an expert on firearms, [I
I actually just posted this on another thread about ammo. Someone posted that you should be careful on the type of ammo you shoot for fear that an attorney would enter it in court and you'd get a juror that didn't like the name - and it could possibly cast you in a bad light.
His case was if they say you were shooting, for example, Federal Champion ammo, that might sound more 'vanilla' than Power Shok ammo. I still carry Hydra Shoks, however it did make me think about the "rules" I guess you could say.
Obviously not fact by any means, but it made sense to me personally. This really makes for interesting discussion, I love to hear all the viewpoints on this topic....I might actually conduct a little totally un-scientific experiment on this with some friends on Facebook (both shooters and non-shooters) and see how it turns out...hmmmm now it's got me thinking....
December 20th, 2011 12:17 AM
Thanks MitchellCT. I appreciate you taking the time to answer my follow up questions. I think I'm pretty naive to how these things work.
Please don't send me a bill. : )
I live for others and I answer to God and sometimes to my wife too.
December 20th, 2011 01:17 AM
Pray tell, which parts of his statement were factually incorrect and self-contradictory?
Originally Posted by MitchellCT
I'm not a lawyer, but I read much of Fish's statements to the police, available notes regarding debates within the prosecutor's office, and trial transcripts. Absent a trained legal prespective, I'm not questioning your opinion but rather seeking some specifics that I must have missed in my review.
Also, some have questioned the quality of Fish's legal representation. Care to comment on that?
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December 20th, 2011 09:37 AM
FWIW, the defendant in that case was acquitted so apparently the BS about the gun didn't hurt his case to much. Who knows, trying to infer that the gun was a "professional" model might have hurt the prosecution more than helped it - would have if you or I were on the jury.
Originally Posted by HoganLongfellow
I've been working for lawyers for the last 30+ years and it is always a crapshoot in the courtroom. I would suggest we all concentrate on not doing something stupid and just forget about worrying if a lawyer could make something of our choice of weapon/ammo/clothing/fill in the blank.
December 20th, 2011 08:23 PM
Firstly, the guy I shoot is not the victim, I am the victim. Second, my handguns are either 100% stock or have a Hogue slip-on grip. Never found the need to modify a defensive firearm, as long as you choose a good defensive firearm.
December 20th, 2011 08:57 PM
Originally Posted by RKM
Sorry, till the matter is clarified, the guy with the GSW is the victim.
That is the way it is.
December 20th, 2011 09:34 PM
Sadly, I would have to agree with the above. I wish I were wrong. I am a firm believer in the old saw, "Lawyers can get you out of the kind of trouble that you would have never gotten into in the first place, if it wasn't for lawyers."
December 20th, 2011 10:05 PM
That's not exactly correct.
Originally Posted by jace33
You have an 'absolute defense' if the courts find that the shooting falls within the provisions, but it's by no means going to stop you from having a civil suit brought against you. What it does do is give you the winning hand, so to speak, if the court finds that your encounter was justified under Missouri law and all the money you will have spent on your defense will be awarded back to you in a judgement against the plaintiff. Your money is already in your attorney's bank, so you will get it back if the plaintiff can repay you.
563.074. 1. Notwithstanding the provisions of section 563.016, a person who uses force as described in sections 563.031, 563.041, 563.046, 563.051, 563.056, and 563.061 is justified in using such force and such fact shall be an absolute defense to criminal prosecution or civil liability.
2. The court shall award attorney's fees, court costs, and all reasonable expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant has an absolute defense as provided in subsection 1 of this section.
December 20th, 2011 10:14 PM
Civil trial, not criminal...
The original poster asked about a civil trial, not a criminal trial. He implied that there were no criminal charges filed. Many of those posting don't seem to know the difference.
Originally Posted by bdcheung
In a criminal trial the government tries to prove the defendant broke a law. In a civil trial the plaintiff tries to prove the defendant damaged him, and owes him monetary compensation.
In a civil trial the plaintiff's lawyer will present anything the judge allows that portrays the defendant in a bad light, in order to influence the jury. That could certainly include the specifics of the gun used. If gun specifics are irrelevant, it is up to the defense attorney to counter this charge and show why it is irrelevant. But it is hard to predict in advance what the plaintiff's attorney might bring up.
Firearms are second only to the Constitution in importance; they are the Peoples' Liberty's Teeth." - George Washington
December 20th, 2011 10:47 PM
I don't deny that this might come up, but it seems to me that the odds of a prosecutor taking your gun apart during the discovery process and being able to recognize modifications from stock condition are slim.
Why would they do that? The overwhelming issue is not whether or not your hair-trigger, high-capacity, ceramic assault sniper pistol with its exploding hollow-point bullets of death was modified. Any competent cross-examination or expert witness testimony will tear that line of questioning to shreds (Unless you're so far out there you have something stupid lie "Smile for the flash!" engraved on the crown of your barrel, or big skull and crossbones logos on your grips).
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