I ate my wafer...


Liability and ugly guns.

Some of my older friends might remember that I was once involved in a heated argument in Tort Law over the technical features of the Winchester Black Talon bullet. For those that don't remember, the refresher version is that a fellow law student who happens to be a former Marine (and current reserve officer) argued that the "prongs" on a Black Talon bullet could defeat soft body armor by "cutting like a saw".(1) In the heated argument, my opponent won by virtue of a technically weak audience and his military trump card, and the class moved on to discuss whether using such a vicious projectile would incur greater civil liability. Remember, at this point, the herd of baby-lawyers in the room honestly think that the Black Talon both had greater wounding ability AND could pierce body armor. The consensus, and the correct legal argument, is that it would not matter in a legitimate shooting.

Since that uncomfortable day in class, I've seen all sorts of arguments about the potential civil liability caused by using or not using various bullets, firearms and accessories. I'm not completely sure where the myth comes from, but at least as far as I know, the critical criminal or civil liability issue in a shooting, be it police or civilian is whether the shot was justified in the first place. I do know of a single civil court case involving 00 Buckshot over penetrating a felon and striking a civilian, and I know of piles of cases that involve bullets that completely miss their intended targets. Otherwise, at least as far as I can tell, the critical issue is whether the shooting was justified or not.

So why am I writing about it? Mostly in response to a current comment thread at hellinahandbasket, and in part due to the very current msnbc article about a hiker that shot an unarmed man with a 10mm pistol. Now, this particular tragedy is interesting in part because the prosecution did try to cast the 10mm pistol as a particularly powerful and evil weapon. (2) At least to my reading of the facts, and the juror interviews, the case was still decided on whether the shooting was necessary, and even if Mr. Fish had carried a .22LR Bearcat the jury would have reached the same verdict. I'm open to discussion on the topic, especially with references to actual cases where the firearm or ammunition choice changed criminal or civil liability, but for now, my position is that it doesn't really matter much what the gun is, only what you do with it.

1. Winchester pulled the black talon from the market, and has since developed an improved version, Ranger T, which is arguably very slightly more incapacitating than the talon-less competition. Although Winchester doesn't distribute the Ranger T ammunition for retail, due to the miracles of the internet it is readily available online, often for prices somewhat lower than competing designs.

2. The 10mm has somewhat hotter ballistics, in some loadings, than more common pistol calibers. It still is balistically puny compared to virtually any rifle or shotgun.


  • On a side note, I seem to always be more interested in the caliber of gun than the other reporters or the cops, and always seem to be more interested in the type of gun than the attorneys. To me it seems like the difference between being shot with a .22 and a .45 is important. And if a guy supposedly shot someone 9 times with a gun that carries 8 +1, and didn't reload, then it might not be premeditated.

    - silliman

    By Anonymous Anonymous, at 12:16 AM  

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