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New Arizona Law Passed to Clarify "Defensive Display" of a Firearm…

Yesterday, Governor Jan Brewer signed a new law that clarifies what constitutes a legal “defensive display” of a firearm.  This new law takes effect on September 30, 2009.

The law states that the “Defensive Display” of a firearm by a person is justified “when and to the extent that a reasonable person would believe that physical force is immediately necessary to protect himself against the use or attempted use of unlawful physical force or deadly physical force.”

The law does not apply to the following circumstances:

  • When a person intentionally provokes another person to use or attempt to use unlawful physical force.
  • Uses a firearm during the commission of a ‘serious offense’ or ‘violent crime’ as defined by State law.

In addition, “Defensive Display” is not required prior to the either the threat of or the actual use of physical force, if the use of force would be justified.  In plain English, if you are justified in using physical or deadly force, you are not required to make a ‘Defensive Display” prior to the using either physical or deadly force.

For the purpose of this law “Defensive Display of a Firearm” includes:

  • Verbally informing another person that you possess or have a firearm available.
  • Exposing or displaying a firearm in a manner that a reasonable person would understand was meant to protect oneself against another’s use or attempted use of unlawful physical or deadly force.
  • Placing your hand on a firearm while the firearm is contained in a pocket, purse or other form of containment or transport.

This law is an extremely important development that broadens the legal protection and extends the options of someone that carries a firearm for the purpose of self defense.  Prior to these clarifications, the above acts could have potentially constituted aggravated assault on the part of a person attempting to legally defend themselves from a legitimate threat.

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"Parking Lot Law" is signed by Governor Brewer.

In another major victory for Arizona gun owners and Arizona Concealed Weapons permit holders, Governor Brewer signed into law the so called “Parking Lot Law”.  The new law permits gun owners to keep a firearm locked inside their vehicle even if the vehicle is parked on private property owned by a business that prohibits weapons on their premises.  This new law takes effect on September 30, 2009.

Prior to the passage of this law, businesses could prohibit employees or visitor from bringing a firearm on to their private property.  This effectively kept gun owners from exercising their Second Amendment right to carry a firearm for personal defense.  Someone leaving their home to go to work could not bring a firearm with them for the purpose of self defense or defense of their family members during their trip to and from work or when traveling to any destination they might visit during their travels between home and work.

The substance of the new law can be outlined as follows:

  • Property owners may not establish, maintain or enforce a policy or rule that prohibits a person from lawfully transporting or storing a firearm that is in a privately owned, locked vehicle as long as the firearm is not visible from the outside of the vehicle.

The new law does not apply if:

  • Applicable State or Federal laws prohibit firearm possession.
  • A vehicle is owned or leased by a public or private employer and used by an employee.
  • A property owner provides a parking lot or garage that is secured by a fence or other physical barrier, has limited access using a security guard or other security measure and provides secure temporary storage for firearms that is readily accessible on entry and exit from the premises.
  • Exceptional circumstances exist such as the need for the business to comply with State or Federal law prohibiting firearms on the premises.
  • If the business is located on the premises of a military installation or a nuclear power plant.
  • If the business provides an alternative parking area near the primary parking area for those wishing to transport a firearm in their vehicles.

This law makes great progress towards helping to insure that gun owners and Arizona CCW permit holders can exercise their right to defend themselves while traveling to and from work.  All of the provisions of the new law make sense to me except the last one.  If a property owner or business creates a separate parking area for ‘the gun people’, it is my opinion that this makes any vehicle parked in that lot a target for being broken into by anyone that might suspect there is a firearm in the vehicle.

Even with the flawed last provision, this is a major step forward for lawful gun owners in Arizona.

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Polls Show Fading Support for Gun Control…

May 23, 2009 2nd Amendment Issues Comments Off

More Americans Not Supportive of New Laws

A number of recent polls show Americans are growing increasingly less supportive of new regulations to restrict firearms.  The Houston Chronicle reports that the shift in public opinion is so strong that a potential ban on so-called “assault weapons”, once backed by 3 in 4 Americans  “now rates barely 1 in 2″.  Frank Newport, the editor-in-chief of the Gallup Poll said “Every bit of data is showing us that Americans are getting more conservative about gun control”.  In a CNN/Opinion Research poll, the change is very apparent.  According to the CNN poll, in 2001, 54% of American favors stricter gun laws.  In 2009, that number has dropped to 39% of Americans favoring gun control.  Think about that.  This would represent a change of 15% in a very short period of time.  This means that ALMOST 60% of Americans are NOT SUPPORTIVE of gun control.

In another poll by ABC News-Washington Post conducted in April 2009, the researchers found that for the first time, a clear majority of Americans, 57 percent, don’t think stricter gun laws would reduce violent crime.  On finding in the poll characterized by pollsters as “a new high and first substantial majority” found that 61% of Americans say that enforcement of existing guns laws would accomplish more than passing new, stricter laws.

For the first time in a Pew Research survey conducted in April 2009, 45 percent of Americans believe it is more important to protect the right of Americans to own guns than it is to control it.  This number is up from 37% percent in the same poll taken only a year ago.  The number of people supporting gun control in this poll has dropped significantly from 58% in 2008 to 49% in 2009.

Each and every one of you should use this information to help people understand that each American’s rights under the Second Amendment are a core value in this country and that people are starting to understand the importance of the preservation of that right to firearms ownership…

Thanks to the National Shooting Sports Foundation, the Houston Chronicle, ABC News and Pew Research for providing the information contained in this post…

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Does the Use of Hollow Point Ammunition Increase Legal Liability in a Justified Shooting?

Question: During my CCW class the instructor was adamant about when to use deadly force to stop a life threatening event, however he made it clear not to hesitate when no other option is available.

This brings me to my question about Harold Fish and the use of hollow point bullets for self defense. On Dateline NBC and in an article on MSNBC details Mr. Fish and his trial here in Arizona. One of the points in finding him guilty was that he was using ammo that was hollow point (Hydro-Shok).

One of the points the CCW instructor made was that FMJ ammo (not hollow point) would be more dangerous to shoot in a self defense situation in that it would more than likely go through the bad guy and possibly injure or kill someone innocent.

What is the correct line of thinking where the law is concerned? Should we use JHP or FMJ ammo for personal protection? Are we at risk for a prosecutor arguing that we too used what is considered a deadlier round by using a JHP for self defense?
Answer: It sounds like you had a pretty good CCW instructor.  His observation on the use of lethal force to stop a life threatening event sounded like it was pretty much on target.  You reference the Harold Fish case and the issue raised with his use of hollow point ammunition.  From the way your question was phrased, I got the impression that you felt the fact that he used ‘hollow points’ was one of the major factors in his conviction.  In my view after reviewing the particulars of the case, it appeared to be a minor issue raised by the prosecution in a ‘piling on’ of issues designed to show that Fish was not justified in the use of lethal force.

To quickly review the major points of that case, at the time Fish was being tried, he had to mount an ‘affirmative defense’ having to prove he was justified in using lethal force.  This was a flaw in the law regarding lethal force and self-defense which was corrected by the AZ Legislature at the urging of many, including the AZ Citizen’s Defense League.  The change in law now places the burden of proof on the prosecuting attorney to prove that the defendant’s use of lethal force is NOT justified.  This change correctly placed the burden of proof back where it should have been all along.

This was not the case in Harold Fish’s situation.  Since he needed to prove that he was ‘justified’ at the time of the court case, the prosecutor pretty much tore him apart, largely on the basis that Kuenzli was unarmed.  I remember commenting to my wife at the time of the shooting that Mr. Fish was probably ‘toast’ because of the existing law and the circumstances surrounding the case.  Since your question did not really address the particulars of the Fish case, but simply the effect of the ‘hollow points’, I won’t comment further except to say that I think there has been a serious miscarriage of justice and that Mr. Fish should be granted a new trial as he has requested.

According to the MSNBC article the firearms investigator in the case is supposed to have testified “that Fish’s gun, a 10mm, is more powerful that what police officers use and is typically not used for personal protection”  He also stated that the ammunition Fish used was called a ‘hollow point bullet’ and is made to expand when it enters the body.

Personally, I’d like to take issue with the investigator on a couple of counts.  First, the 10mm is a more powerful cartridge that most police officers carry.  It is interesting to note that the FBI actually selected the cartridge for field use in the mid 1980s, but then decided against it due to the excessive recoil and the physical size of the pistols of that caliber.  The recoil was deemed to be excessive for the average agent and the guns too large for some small handed persons.  The FBI and later the entire DOJ adopted the .40 Smith & Wesson caliber as the standard.

Now, consider for a moment the following:  10mm is exactly .40 inches in diameter.  The only difference between a .40 and a 10mm is the length of the cartridge.  On average, the difference in muzzle velocity between a 10mm and a .40 caliber round is only about 200 fps.  (1300 for a 180 gr. 10mm, 1100 for a 180 gr. .40 caliber).  So, while the investigator is ‘technically’ correct, his testimony was misleading.  The diameter of the bullet expansion would be almost exactly the same for both calibers.  In short, the diameter of the holes punched in the victim by the two different calibers would be almost exactly the same.  It is also misleading that he didn’t mention that ALL police officers carry ‘hollow point bullets’ and that they are the standard ammunition for personal defense.

In my professional opinion, jacketed hollow point ammo is the ONLY ammo I would carry for personal defense.  I don’t feel that it is a legal liability in a justified shooting.  Any criminal defense attorney worth his fee would have made that very clear.  It may have been clear in the courtroom and MSNBC (read ‘liberal, anti gun media outlet’) was using a little editorial license in their account to scare those not firearms knowledgable and make Mr. Fish seem more culpable.

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Ninth Circuit Court of Appeals Rules 2nd Amendment Incorporated to States

April 30, 2009 2nd Amendment Issues, State Firearms Laws Comments Off

I wanted to post the following release from the Second Amendment Foundation in Bellevue, WA regarding the results of a recent court case important to those of us concerned about the preservation of Second Amendment rights.  I am in full agreement with Mr. Gottlieb of SAF that this represents not only a confirmation of the Heller decision by the Supreme Court, but indeed expands it.  The full press release is reprinted below:

BELLEVUE, WA – The Second Amendment Foundation today applauded the U.S. Ninth Circuit Court of Appeals in San Francisco for ruling that the Second Amendment is incorporated against the states and local governments.

The majority opinion was written by Judge Diarmuid F. O’Scannlain, with a concurring opinion from Judge Ronald M. Gould, who wrote, “The right to bear arms is a bulwark against external invasionÂ…That we have a lawfully armed populace adds a measure of security for all of us and makes it less likely that a band of terrorists could make headway in an attack on any community before more professional forces arrived.”

Although the court found against the plaintiffs in the case of Nordyke v. King – Russell and Sallie Nordyke, operators of a gun show in Alameda County, CA – the court acknowledged that its earlier position that the Sec ond Amendment protected only a collective right of states has been overruled by the Supreme Court’s 2008 historic ruling in District of Columbia v. Dick Anthony Heller. That was the case in which the high court ruled that the Second Amendment protects an individual civil right to keep and bear arms.

“This is a great victory for advancement of the fundamental individual right of American citizens to own firearms,” said SAF founder Alan Gottlieb. “The Ninth Circuit panel has acknowledged that the Heller ruling abrogated its earlier position on the Second Amendment, and it further clarified that the Second Amendment is incorporated to the states through the Fourteenth Amendment through the due process clause.”

SAF attorney Alan Gura, who successfully argued the Heller case before the Supreme Court in March 2008, filed an amicus brief in the Nordyke case. The Nordykes sued when Alameda County banned gun shows at the county fairgroun ds by making it illegal to bring or possess firearms or ammunition on county property.

“The Heller ruling in 2008 was the first critical step toward full restoration of the individual citizen’s right to keep and bear arms to its rightful position as a cornerstone of the Bill of Rights,” Gottlieb observed. “This victory in the Ninth Circuit not only reinforces the Heller ruling, it expands upon it.”

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