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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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