Ayoob: Will Carrying a 10mm Hang You in Court?

Editor’s Note: This article represents the opinion of the author and is not intended as legal advice. Please familiarize yourself with local, state, and federal laws, and seek the advice of qualified legal experts as required.

A common theme on the gun-related Internet is “A 10mm will hang you in court! It’s overkill! It’s ‘indicia of malice’! It’s too powerful for self-defense against anything but big bears! A 10mm got Harold Fish convicted for murder!”

Is using 10mm Auto for personal protection defensible in court? Massad Ayoob examines the real-world case of State v. Harold Fish, in which a man was convicted after using a 10mm pistol for self-defense.

The truth is a lot more complicated. Let’s look at the case that’s most often cited in this regard, Arizona v. Harold Fish.

2004, Coconino County, Arizona. Harold Fish, a 57-year-old retired schoolteacher, was hiking alone in the Coconino National Forest. Seeing a man with three dogs next to a parked car, Fish offered a friendly wave. Two of those big dogs launched themselves at him — barking, growling, and baring fangs.

Yelling at the man to call off the animals, Fish reached into his backpack for the 10mm 1911 pistol he carried because the area was home to black bears and mountain lions. The man didn’t call off the dogs, and when they were only a few feet away, Fish fired a warning shot into the ground. The dogs broke off their ferocious attack, and Fish stopped shooting.

The dogs were smarter than their owner.

10mm pistol for self defense in Harold Fish case — The 10mm can be a highly effective self-defense round in a well-made pistol like this XD-M Elite.

The man who had checked those canines out of a local shelter for the day was named Grant Kuenzli. Kuenzli was apparently homeless and living in his car in the woods. He rushed downhill at Fish, screaming death threats, swinging his fists as if he were already punching him.

When the younger, stronger, and heavier Kuenzli was almost on top of him, Fish fired three shots. All three hit Kuenzli in the chest, and he fell. Fish tried to call for help on his cell phone, but had no cell service there in the boondocks. Fish put his backpack under the man’s head and made his way to the nearest road, where he flagged down a passing car and had the driver call 9-1-1, requesting police and ambulance via OnStar. By the time medical help arrived, Kuenzli was dead.

Responding police reassured Fish that it was clearly self-defense. The prosecutor, in an election year, didn’t agree: he charged Fish with second-degree murder and brought him to trial two years later…and managed to win a conviction.

In 2009, the court of appeals reversed the conviction and ordered a new trial, and the prosecution decided to dismiss. The prosecutor did indeed make a big deal out of the 10mm and its hollow point bullets…but those weren’t the only issues.

Case Issues

Neither equipped with a trauma kit nor a professional in treating thoracic gunshot wounds, Fish did not give any meaningful first aid, and it was later learned that the eight-person jury held that against him.

Hornady 10mm 175 grain expanded bullet — Premium defensive bullets of all calibers are intended to minimize the amount of time it takes to incapacitate a violent attacker. Shown here is an expanded 10mm 175-gr. FlexLock bullet from Hornady. Image: Hornady Mfg.

Lesson: In such cases, it is important to bring up the fact that for decades, emergency medical personnel have been taught not to approach a patient who was shot by his victim or police until police have secured the patient’s hands and cleared him of weapons. Men so violent that they have to be shot are dangerous!

Fish had spoken freely to investigators, who asked when it happened; his estimate of the time was way off, and that was painted at trial as lying.

Lesson: The adrenaline dump and related physio-psychological effects of near-death experiences make the person experiencing them the worst possible witness as to such details.

Who looks at his watch after he has almost been killed and had to shoot someone? Experienced homicide investigators know that detailed questions should neither be asked nor answered until at least 48 hours and a couple of full sleep cycles after the incident.

It does not appear that either the prosecutor or the jury understood the concept of disparity of force, the legal fact that if an unarmed aggressor has physical advantages which make it likely his assault will cause death or great bodily harm, these advantages become the equivalent of a deadly weapon and justify the intended victim’s recourse to an actual deadly weapon, such as Fish’s 10mm pistol.

10mm penetration in ballistic gel — Like many self-defense calibers, 10mm self-defense loads can offer good penetration and bullet expansion. Image: Hornady Mfg.

While the judge allowed the jury to hear some testimony that the deceased had a quick temper, the jury was not allowed to hear the witnesses who would have testified that he tended to attack with the same peculiar punching-the-air movements Fish had described. Of the 20-some issues the defense raised on appeal, this is one of the few that led to the verdict being overturned. Another was a failure with jury instructions.

The element of the 10mm being a malicious killing machine was not one of the issues raised on appeal, though this writer thinks it should have been, as the allegations were clearly specious.

10mm Auto Element

What angered gun people who followed the case more than anything else was the prosecution’s contention that the 10mm pistol was super-powerful overkill, and that its hollow nose bullets were proof of homicidal malice. The jury’s first verdict vote was split 50/50 between conviction and acquittal.

One juror later said that she changed her vote to guilty based at least in part on the extra-powerful pistol and its supposedly extra-deadly ammunition. Another juror said after the trial, “The whole hollow point thing bothered me. That bullet is designed to do as much damage as absolutely possible. It’s designed to kill.” The jury also heard testimony put forth by the prosecution that the 10mm Auto was more powerful than what police were allowed to carry.

commercial 10mm Auto ammo equal to power level of 40 SW cartridge loads — Most currently available 10mm loads (right) are at only the power level of .40-cal. (left), including the rounds in Harold Fish’s pistol. Image: Gail Pepin

Those arguments were bunk. At the time, the 10mm was authorized for carry by Maricopa County, the largest sheriff’s department in Arizona. Moreover, every FBI agent in the country and therefore in Arizona had in the recent past been issued 10mm pistols by the Bureau!

Besides which, it’s my understanding that the ammunition in Fish’s gun was 180-gr. Federal Hydra-Shok. A parallel to what the FBI issued — a light load for the caliber, actually nicknamed “FBI 10mm Lite” and “10mm Minus-P” by police instructors — this bullet’s velocity was reduced to 1,010 feet per second. That is in the range of .40, whose 180-gr. load is spec’d for a velocity range of 950 to 1,000 foot-seconds. At that time, the .40 was standard issue for most Federal agencies, including the FBI, Arizona state troopers, and police in Phoenix, Tucson, and many other Arizona law enforcement agencies.

Winchester Black Talon 10mm ammunition and box — The same unreasonable mentality that said 10mm is problematic may also attempt to attack the brand or load of your ammo. Shown is the oft-maligned Winchester Black Talon ammunition. Image: Gail Pepin

At that time and now, expanding bullet ammunition was standard with virtually every American law enforcement agency. And for good reasons. 1) The expanding hollow point is less likely to exit a felon’s body and go on to strike down an unseen bystander. 2) The jacketed hollow point’s “cookie-cutter” nose is less likely to ricochet and hit innocent bystanders. 3) Historically, hollow points have stopped gunfights faster, minimizing the harm done by the person who needs to be shot. Finally, hollow points may actually be less lethal to the suspect who forces a cop or victim to shoot him: if he is stopped sooner, he is likely to suffer fewer gunshot wounds.

None of these solid arguments appears to have been used by the defense in the Fish case.

Harold Fish — One Big Mistake

In this writer’s personal opinion, one big mistake on the part of the defense was not putting defendant Fish on the witness stand. After he was released from three years in prison, I asked Harold Fish why he didn’t testify. Fish told me that his attorney advised him not to because it would have come out that he had a large gun collection and had trained multiple times at Gunsite, and the lawyer thought this would make him look like a bloodthirsty gun nut.

court defensible use of force for self defense — If you use force for self-defense, you should be prepared to testify in court. While a defendant cannot be compelled to testify, the author advises that there are times when it could be to your benefit to do so.

On the contrary, it would have shown that Fish was so responsible he’d spent thousands of dollars and weeks of his life training with people who trained police instructors, to make sure he never made a mistake with his gun. It would have opened the door for Gunsite’s master instructors to testify as material witnesses as to his training, including elements such as disparity of force and the validity of a 10mm pistol as an outdoorsman’s gun carried for safety.

I found Fish to be an articulate man; after all, he was a professional educator — a professional communicator — but the jury never heard him tell his side. He would have been a very effective witness. Self-defense is an affirmative defense: it’s critical to hear the defendant explain why he or she fired that gun.

Harold Fish died of cancer in 2012, having spent three years in prison and enduring a half-decade ordeal. He told me he still owed six figures to his lawyers, a legal bill that another expert, John Correia, recently estimated at some $700,000, including the appeal.

Bottom Line

The 10mm pistol is most certainly defensible in court, as is hollow-point ammunition. But they have to be explained to the jury! An explanation unspoken is an explanation unheard.

By all means, carry a 10mm if that’s your choice. But be able to explain it.

Rule of life: Don’t do anything you can’t explain.

Rule of court: Don’t do anything you can’t explain to jurors who’ve never had to think about it before.

Editor’s Note: Please be sure to check out The Armory Life Forum, where you can comment about our daily articles, as well as just talk guns and gear. Click the “Go To Forum Thread” link below to jump in!