Handloaded Ammunition for Self Defense: Yes or No?

Disclaimer: I'm not your attorney and this is not legal advice.

    Guns America has an article titled "Why You Should Avoid Handloads for Concealed Carry" by John Thomas, a former prosecutor and defense attorney. He advises against handloads for self-defense for two reasons: (i) similar to Massad Ayoob, he suggests that handloaded ammunition could be used as evidence of pre-meditation and/or malice under a theory that a prosecutor could argue that the gun owner has constructed ammunition specifically intended to kill; and (ii) that it could alter the findings of a gun shot residue test and falsely indicated that the attacker was farther away than the gun owner contended, and, therefore, not an imminent threat. Thomas, instead, recommends that you use the same ammunition used by law enforcement in your community.  

    I would have to defer to Thomas' experience working within the criminal justice system. Nevertheless, as some of the comments to his and similar articles have asked, when has this actually happened? Thomas does not cite to any examples where a prosecutor made any such argument before a court. And although Ayoob has made this contention for decades, he has not, to my knowledge, provided any real world examples. 

    Using the search term "reloaded" with "ammunition", "bullet" or "cartridge", I found 400 cases. It is possible that a person using different search terms could find other cases, but that is what I found using Westlaw. The vast majority of these cases were either cases where the recitation of facts noted that the person charged with a crime had reloaded an empty weapon (that is, it had nothing to do with reloaded ammunition), or was a felon being charged with unlawful possession of "ammunition or reloaded ammunition" under California or federal laws using that specific language. A much smaller number than you would expect pertained to civil suits involving reloaded ammunition. A larger number of cases than you might think pertained to evidence linking a person to a crime because of machine marks left on reloaded ammunition that matched marks in reloading dies. A handful simply recited that reloaded ammunition had been used and/or found without attaching any significance to that fact, or were otherwise completely irrelevant to the issues in which we are interested. 

    After eliminating these cases, I was left with 9 criminal cases where the fact that the ammunition was reloaded ammunition was of some significance.

     The first of these is Kiehle v. Ryan, No. CIV 11-352-PHX-GMS, 2012 WL 1946577 (D. Ariz. Feb. 3, 2012), report and recommendation adopted in part, rejected in part, No. CV-11-352-PHX-GMS, 2012 WL 1946575 (D. Ariz. May 30, 2012), aff'd, 599 F. App'x 642 (9th Cir. 2015). In that case, the defendant had been charged (and convicted) of the murder of his wife. He subsequently filed a Petition for Writ of Habeas Corpus, which was initially heard by a magistrate. He apparently was claiming that his wife had killed herself. One of the bits of evidence mentioned in the decision was that when the defendant was questioned by investigators, he had told them that the bullets in the revolver were reloaded ammunition that he had purchased at a store that had closed down, but the investigators (somehow) determined from bullet fragments that a commercially manufactured bullet had been used. The significance of this had to do with the defendant's veracity. It was of such little consequence, though, that this fact was not even mentioned in the de novo review of the Petition by the district court judge.

    In Pease v. Commonwealth, No. 2761-00-3, 2002 WL 498162, at *1 (Va. Ct. App. Apr. 2, 2002), rev'd on reh'g en banc, 39 Va. App. 342, 573 S.E.2d 272 (2002), aff'd, 266 Va. 397, 588 S.E.2d 149 (2003), the defendant had been convicted of the murder of her husband. The couple had been in a fight, and the husband had supposedly shot his wife in the abdomen (with the bullet passing through) and, according to the wife, turned the gun on himself shooting himself twice. However, whether this was correct largely rested on which bullet and trajectory was from the wife being shot: that is, whether she had been shot by her husband, or had shot herself to cover up a murder of her husband. Part of the evidence examined in the case was that the wife was told that the husband's death could not be ruled a suicide because the investigators were missing the bullet that supposedly been shot at her. A few days later, the wife reported to the investigators that she had found the bullet that had struck her lying on a window ledge, and the explanation was that the cartridge was a reloaded wadcutter that was not as powerful as commercially loaded ammunition and, therefore, may not have had the energy to bury itself in a wall after passing through the wife's body. The appeals court accepted this and reversed the conviction. When re-heard, en banc, however (see Pease v. Commonwealth, 39 Va. App. 342, 573 S.E.2d 272 (2002), aff'd, 266 Va. 397, 588 S.E.2d 149 (2003)) the court noted that there was evidence from 4 different people that had examined the window sill earlier and never saw the bullet. Thus, the conviction was upheld.

    State v. Pearson, 89 N.C. App. 620, 366 S.E.2d 895 (1988), was an appeal from a conviction for robbery and murder. The facts showed that the victim had been shot with a .45 ACP caliber weapon using either hand-loaded or commercially reloaded ammunition, and it was discovered that the defendant had, prior to the crime, traveled to another state and purchased a .45 ACP handgun and commercially reloaded ammunition. 

    In Stansberry v. State, No. 02-17-00150-CR, 2018 WL 6565780 (Tex. App. Dec. 13, 2018), petition for discretionary review refused (May 8, 2019), cert. denied, 140 S. Ct. 295, 205 L. Ed. 2d 179 (2019), the decision notes that the investigating officers had to conduct their own test of the stippling pattern left by gunshot residue because the ammunition used in the crime was with reloaded ammunition, and neither the Texas Department of Public Safety's Crime Lab Firearms Unit nor the Tarrant County Medical Examiner's office would perform that testing because, the labs asserted, reloaded ammunition would not fire consistently.

    Temple v. State, 342 S.W.3d 572 (Tex. App. 2010), aff'd, 390 S.W.3d 341 (Tex. Crim. App. 2013), only showed up in my search because the victim "was shot in the back of her head at close range by a 12–gauge shotgun loaded with double-ought buckshot that was likely privately reloaded," but the defendant denied having any knowledge or equipment to reload a shotgun shell. This was determined to be irrelevant because, as the court wrote, "the State need not connect appellant to a specific murder weapon or ammunition; a conviction may be based entirely on circumstantial evidence."

    In State v. Scott, 89 Wash. App. 1064 (1998), the defendant had been charged with shooting at police officers.  He argued that "[t]he limited impact and somewhat shallow penetration of his bullets in a trash can, a newspaper stand and a tree, [Scott] argues, supports his claim he was further away from the scene, attempting to flee when the shots were fired[,] thus weakening the impact of his bullets ...." One of the jurors, who was knowledgeable about firearms, suggested to other jurors that the limited penetration could have been because the defendant could have used lower-power reloaded ammunition rather than because he was farther away from the police. After learning about this, the defendant had requested a new trial arguing that the juror had misrepresented his knowledge of firearms during the jury selection process, and had used his specialized knowledge to speculate (and influence other jurors) about something that had not been introduced at trial. The trail court granted the motion for a new trial, which was upheld on appeal.

    One of the issues in People v. Sams, No. F074751, 2019 WL 6313335 (Cal. Ct. App. June 26, 2019), review denied (Sept. 25, 2019), was whether a purported witness would have seen smoke if the defendant has fired a weapon. Part of the evidence offered was from a police rangemaster and armorer who testified that "high quality ammunition produces very little smoke. Cheap, old, or reloaded ammunition may cause a lot of smoke, however." There was no further discussion in the case, though, of whether the defendant had used reloaded ammunition.

    In People v. Peavy, No. D068389, 2016 WL 6156323 (Cal. Ct. App. Oct. 24, 2016), a link was established between the defendant and the murder scene because bullet casings at the scene had varying headstamps indicating that reloaded ammunition had been used, and the weapon recovered from the defendant was loaded with reloaded ammunition with differing headstamps.

    The defendant's murder conviction in Swafford v. State, 125 So. 3d 760, 779 (Fla. 2013), was overturned in part because the victim had been killed using reloaded ammunition, and there was another suspect in the case that was known to reload his own ammunition, and was trying to dispose of a weapon that matched a description of the murder weapon after the killing.

   When using the search terms "handloaded", "handload", "hand loaded", "hand load", "hand-load" and "hand-loaded" with "ammunition", "bullet" or "cartridge",  I found 33 published cases nationwide. However, after discarding civil cases related to injuries, between different manufacturers, and contesting certain federal laws, and the criminal cases involving felons illegally in possession of ammunition or discussing hand-loading a cartridge into the weapon's chamber, I was left with only 10 cases, one of which was State v. Pearson, 89 N.C. App. 620, 366 S.E.2d 895 (1988), discussed earlier. So that brings us down to 9 cases (two of which were related actions, so really just 8). Again, it is possible that a person using different search terms could find other cases, but that is what I found using Westlaw.

    First up is Miller v. State, 250 Ind. 656, 236 N.E.2d 585 (1968), which involved the issue of admitting expert testimony as to the distance between the shooter and the person shot based on a gun shot residue test. However, in that case, the shooter had used a commercially produced rifle load, but the expert had used a handload in his test. The court held that the expert's testimony should not have been admitted because of the variability between the two loads. 

    Higgins v. State, No. A-4686, 1994 WL 16196273 (Alaska Ct. App. June 8, 1994), was an appeal of a burglary conviction. One of the items stolen was a .41 Magnum Ruger revolver. Investigators recovered two bullets .410 inches in diameter from the defendant's vehicle. One of the officers testified at trial that the bullets were for a .41 Magnum, and could not be for a .357 Magnum or .44 Magnum as defendant apparently asserted. His expertise for that statement, and upheld on appeal, was because he was an experienced hand-loader.

    In Com. v. Harris, 387 Mass. 758, 758, 443 N.E.2d 1287, 1289 (1982), the victims were murdered with hand-cast and hand-loaded bullets and, among other things, the defendant cast and hand-loaded his own ammunition.

    State v. Mesaros, 62 Wash. 2d 579, 384 P.2d 372 (1963), came up in my research because the victim had been murdered by someone using a .357 Magnum and hand-loaded ammunition, and the defendant had purchased a .357 Magnum revolver and hand-loaded ammunition prior to the shooting, had admitted to throwing the revolver into a river, and when arrested was found to have a hand-loaded .357 Magnum cartridge in his pocket.

    At the trial of the defendant in Clayton v. State, 842 So. 2d 971 (Fla. Dist. Ct. App. 2003), decision disapproved of sub nom. Hersey v. State, 908 So. 2d 1052 (Fla. 2005), one of the issues was whether the defendant has used a "firearm" in the commission of a robbery. Per the opinion, "the State's firearms expert testified that the weapon Clayton used during the robbery was a Bulldog type revolver, manufactured in Belgium between 1878 and 1914. The weapon was designed to fire a .44 caliber Bulldog bullet, which is no longer commercially available, but which can be made by someone skilled in hand loading ammunition." Hand-loading was not otherwise relevant to the case.

    In People v. Stovall, No. B172771, 2005 WL 977733 (Cal. Ct. App. Apr. 28, 2005), the defendant had been linked to a murder, because the victim was killed with a hand-cast bullet with unusual amounts of antimony in the casting, and matching hand-cast bullets and hand-loaded ammunition was found in the defendant's vehicle. These same facts show up in a later habeas corpus suit by the defendant. (Stovall v. Tilton, No. CV 07-3105-JSL MAN, 2011 WL 2939423, at *3 (C.D. Cal. June 10, 2011), report and recommendation adopted, No. CV 07-3105-JSL MAN, 2011 WL 2939420 (C.D. Cal. July 19, 2011))

    People v. Frausto, No. H042253, 2019 WL 1219317 (Cal. Ct. App. Mar. 15, 2019), review denied (June 26, 2019), was another case where the defendant was linked to shooting because of similar hand-loaded ammunition.

    Finally,  Mockaitis v. Harcleroad, 938 F. Supp. 1516, 1534 (D. Or. 1996), rev'd, 104 F.3d 1522 (9th Cir. 1997), was another case where hand-loaded ammunition stolen from a gunowner linked the burglar who stole the ammunition with three murders committed later.

    So, what does all of this tell us? Well, first of all, there are no published decisions I could find where a defendant was convicted or suffered a penalty enhancement for using handloaded ammunition versus commercially manufactured ammunition; and the distinction is somewhat vague, in any event, because there is commercially reloaded ammunition. This doesn't mean that there are not court trials where that was an issue but the case was not appealed or otherwise reported, but it is casts doubt on the theory that a self-defense argument would be shot down because of using reloaded ammunition. And, in reality, the theory seems fallacious to me because the same argument could be applied to different calibers; e.g., that someone used a .357 Magnum rather than a .22 LR because they intended to kill an attacker.

    Second of all, the issue of gun residue tests being validated or invalidated has shown up, but with mixed results. In one case, the prosecution's expert's testimony should have been thrown out because he used a handloaded round rather than a commercial round (the opposite situation from that in which we are interested), and in another, the fact that the suspect had hand-loaded ammunition forced the investigating officers to conduct their own tests. 

    Some other thoughts:

    It is apparent from reading these cases that even the experts appear to not really know much about hand-loaded ammunition. I am at a loss, for instance, as to how an investigator could determine from bullet fragments whether a cartridge had been hand-loaded or commercially loaded, except, perhaps, in the case of hand-cast bullets. For instance, the Hornady XTP bullets that someone purchases for reloading are not going to differ from the XTP bullets used by Hornady in their commercial loads. 

    I also don't see the value of advising people to use the same loads as their local law enforcement. For one thing, how do you even know what your local law enforcement is using? And what if they use a different caliber from you? And, furthermore, what if they use ammunition that is not readily available to the public (e.g., the Winchester Ranger T)?

    My final thought is that it would be helpful if people like Thomas and Ayoob could point us to specific examples of a prosecutor or expert arguing that using hand-loaded ammunition was evidence of scienter and whether those arguments were allowed by judges and/or successful in influencing a jury. 

UPDATE (9/20/2020):

    First, I want to thank Greg Ellifritz for including this post in his Weekend Knowledge Dump.

    Second, I want to clarify that I'm not recommending using reloaded ammunition. I believe there are practical reasons to use factory loaded ammunition, not the least of which is access to bullet designs that are not made available to hand loaders. Reliability issues may also be a concern because there are various steps during which a reloader may introduce a bulge or fail to correct a bulge in a case, resulting in a malfunction.

    Third, thanks to an astute reader who pointed me to gun forums where Mass Ayoob has given some specific examples (see here and here), we have a bit more data to examine. As I would expect based on my review of published cases, the examples given by Ayoob are trial court cases where there would have been nothing to show up in a law report of published cases. The specific instants Ayoob notes are:

(1)     New Hampshire v. Kennedy: The basic facts, as Ayoob describes them, are as follows:

James Kennedy, a sergeant on the Hampton, NH police force, pursued a drunk driver whose reckless operation of the vehicle had forced other motorists off the road. The suspect ended up in a ditch, stalled and trying to get underway again. Advised by radio that responding backup officers were still a distance away, and fearing that the man would get back on the road and kill himself and others, Kennedy approached the vehicle. At the driver’s door, the suspect grabbed Kennedy’s Colt .45 auto and pulled it towards himself. It discharged in his face, causing massive injury.

Kennedy was using reloaded ammunition in his weapon. Ayoob indicates that this is the first case of which he had heard an argument questioning whether the defendant had used a reload because standard ammunition was not deadly enough. A defense expert suggested by Ayoob was able to overcome this argument.

(2)     New Jersey v. Bias: According to Ayoob, "[t]his is the classic case of gunshot residue (GSR) evidence being complicated by the use of handloaded ammunition, resulting in a case being misinterpreted in a tragic and unjust way." The basic facts are that, according to the defendant, Daniel N. Bias, his wife had committed suicide with a handgun, using special low-recoil loads that he had made up for her. The consequence, if the defendant is to be believed, is that there was so little gun shot residue (GSR) that it appeared to investigators that the shot must have been made at a longer distance, suggesting that Bias had deliberately shot her. Thus, he was indicted for first degree murder. Bias underwent three trials, according to Ayoob, finally being convicted of reckless manslaughter under a theory that Bias had put the gun to her head to frighten her and inadvertently pulled the trigger. Unfortunately, the only appellate matters related to this matter were 4 short orders lacking any details.

(3)    Tennessee v. Barnes: As to this case, Ayoob writes:

The decedent attacked Robert Barnes and his young daughter with a large knife and was shot to death by the defendant with SJHP .38 Special reloads from a Smith & Wesson Model 36. The distance between the two at the time of the shooting became a key element in the trial, and a misunderstanding of that distance was a primary reason he was charged with Murder. The evidence was messed up in a number of ways in this case, and I do not believe the reloaded ammo (which the prosecution did not recognize to be such until during the trial) was the key problem, but it definitely was part of a problem in reconstructing the case. We were able to do that without GSR evidence, and Mr. Barnes won an acquittal. In this case, I believe the use of factory ammo, combined with proper handling and preserving of the evidence by the initial investigators, would have made the defense much easier and might well have prevented the case from ever being lodged against him.

Ayoob mentions one other case, but that was a contrary case where a police officer used his duty ammunition, and gun shot residue evidence was used to counter an argument that the officer had shot the suspect from some distance away. Ayoob cites it for an example where the use of commercial ammunition made it easy to substantiate the range using GSR information from other exemplars of  the ammunition.

    The first case, New Hampshire v. New Jersey, represents what I believe is special circumstances because it involved a police officer. That is, police officers are issued duty ammunition, and so there may well be a valid concern if the officer chooses to use his own hand loads instead of his duty ammunition. I think an assertion like this against the average person could be successfully objected to as irrelevant in a criminal trial of self-defense, and probably dealt with in the same manner in a subsequent civil suit. 

    The second and third cases cited by Ayoob involved issues with gun shot residue evidence. I also found two cases where gun shot residue evidence was complicated because of reloads (although one of these cases was the state's expert being caught using his own handload as an exemplar instead of the commercial load used by the defendant). But the primary issue in the two instances raised by Ayood seems to be having adequate exemplars for testing. The person that loads hundreds or thousands of rounds of identical hand loads shouldn't have a problem with providing adequate exemplars. 

    In short, I'm not recommending that you use hand loads for self-defense purposes, but the rarity of cases where it has been an issue suggests that using hand loads will not automatically tank a claim of self-defense.