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Canada Gerald Stanley’s ‘magical gun’: The extremely unlikely defence that secured his acquittal

19:07  14 february  2018
19:07  14 february  2018 Source:   nationalpost.com

'Boom, the thing just went off': Gerald Stanley testifies at his 2nd-degree murder trial

  'Boom, the thing just went off': Gerald Stanley testifies at his 2nd-degree murder trial Gerald Stanley told the jury at his second-degree murder trial today in Saskatchewan that he didn't mean to shoot Colten Boushie. "Boom, the thing just went off," Stanley testified Monday afternoon. The farmer was charged after Boushie, 22, was shot during an altercation between his family and group of young people from the Red Pheasant Cree Nation reserve who had driven onto his rural property in a grey SUV on Aug. 9, 2016. Members of the group told police they went to the farm looking for help with a flat tire.

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Gerald Stanley trial: Closing arguments scheduled for Thursday

  Gerald Stanley trial: Closing arguments scheduled for Thursday Gerald Stanley trial: Closing arguments scheduled for ThursdayBATTLEFORDS — Lawyers on both sides of the Gerald Stanley trial are expected to deliver their closing statements on Thursday.

Related Video: Colten Boushie's family takes concerns to Parliament Hill (Provided by CBC News)

No firearms expert has been able to fully explain or reproduce the “freak accident” that Gerald Stanley claims caused his gun to fire unexpectedly into the head of Colten Boushie.

The result is what David Tanovich, co-editor of Canadian Bar Review, said was a case of a “magical gun.”

Stanley’s acquittal hinged on a claim of hangfire, an extremely rare scenario in which a cartridge discharges several seconds after it is struck by the firing pin.

Even then, Boushie should still have survived if not for a second extremely specific malfunction that could not be replicated by experts testing Stanley’s gun.

Boushie was killed with a Tokarev TT33, a semi-automatic pistol originally manufactured for the Soviet Red Army.

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  Gerald Stanley trial: Fatal shooting of Colten Boushie 'a tragedy but it's not criminal,' defence says Gerald Stanley trial: Fatal shooting of Colten Boushie 'a tragedy but it's not criminal,' defence saysIn his closing statement, defence lawyer Scott Spencer said Stanley had opportunities to lie to make his case stronger, but didn’t do so.

After a confrontation with an SUV filled with trespassers on his Saskatchewan farm, Stanley testified that he retrieved the Tokarev from a shed, loaded it with three cartridges and then stepped outside to fire into the air. He said he pulled the trigger three or four times.

The defence’s case is that while two bullets were shot into the sky, the third bullet did not immediately fire.

Instead, after Stanley had approached a stationary SUV containing Boushie, Stanley testified that the round suddenly discharged, striking Boushie in the head. The shot killed him instantly.

“Boom, the thing just went off,” Stanley told the court.

Hangfire is the reason why the mandatory Canadian Firearms Safety Course instructs shooters to always wait 60 seconds after encountering a misfired round.

Even among habitual shooters, though, hangfires are a phenomenon that will typically only occur once or twice in a lifetime, if at all. Additionally, the typical hangfire only lasts a split second.

'Bring drums': Boushie support rallies planned in Saskatoon, Regina after Stanley not-guilty verdict

  'Bring drums': Boushie support rallies planned in Saskatoon, Regina after Stanley not-guilty verdict 'Bring drums': Boushie support rallies planned in Saskatoon, Regina after Stanley not-guilty verdict People are gathering in Saskatoon, Regina and other Canadian cities Saturday to show their support for the family of Colten Boushie after Gerald Stanley, a Saskatchewan farmer, was acquitted Friday of responsibility for Boushie's death. "There is no justice!" yelled people in the courtroom after the jury foreman read out the verdict Friday night. Moments earlier, the presiding judge had urged calm despite the "raw emotions" felt by those in the room.

Eric Hung, founder of the U.S. firearms blog Pew Pew Tactical, told the National Post that he was recently attending an advanced National Rifle Association course when the instructor asked attendees whether they had ever experienced a hangfire.

“Only two out of the dozen or so present raised their hands. And these are people that shoot a lot,” he said.

Wayne Bush, a veteran U.S. firearms instructor in southern Pennsylvania, similarly told the Post that throughout a long police and military career that has included shooting tens of thousands of rounds (and being present around the firing of tens of thousands more), he has never experienced a hangfire.

On CanLii.org, a searchable database of thousands of Canadian legal decisions, there is only one mention of the term “hangfire.” Contained in a 1989 negligence case against the Remington Arms Company, it involved a .22 cartridge that exploded roughly 10 seconds after being fired.

When Stanley’s lawyer was calling up witnesses to prove the existence of long-delayed hangfires, the defence team relied heavily on the testimony of a random citizen who approached them with a hunting story.

Protests erupt following acquittal of farmer

  Protests erupt following acquittal of farmer Protests erupt following acquittal of farmerA jury in Battleford, Sask., found Gerald Stanley not guilty of second degree murder on Friday in the death of 22-year-old Colten Boushie, a resident of the Red Pheasant First Nation.

Wayne Popowich called up Stanley’s legal team after reading about the trial in the media, and was soon placed on the stand to describe an event from 40 years ago in which he fired an unmaintained rifle and had it behave exactly the same as the Tokarev in Stanley’s testimony.

However, a clear point in Stanley’s favour is that he was using ammunition that was particularly prone to hangfires. The Tokarev was loaded with 64-year-old cartridges originally manufactured in communist Czechoslovakia — and stored in an uninsulated shed subject to the extremes of the Saskatchewan climate.

“Hangfires are most common among old military surplus ammunition such as that used in this case,” Tom Givens, co-founder of Tennessee’s Rangemaster Firearms Training Services, told the Post.

Stanley farm3.jpg: On the left is the vehicle where Colten Boushie was shot to death. Stanley testified that he was attempting to remove the keys from the vehicle when his gun unexpectedly discharged. © RCMP On the left is the vehicle where Colten Boushie was shot to death. Stanley testified that he was attempting to remove the keys from the vehicle when his gun unexpectedly discharged.

Nevertheless, even with a hangfire, one more unlikely event needed to occur to ensure Stanley’s version of events.

Before approaching the vehicle containing Boushie, Stanley testified that the slide on the Tokarev was pushed back, indicating that the gun was out of ammunition.

Under normal conditions, the slide of a Tokarev will indeed snap back into a locked position once the gun is out of ammunition. The video below by YouTuber Hickok45 illustrates the feature: After he has fired all nine rounds of a magazine, at 1:40 the Tokarev snaps open as a signal to the shooter to reload.

‘We’re going to fight back’ — Colten Boushie’s mother delivers emotional message

  ‘We’re going to fight back’ — Colten Boushie’s mother delivers emotional message ‘We’re going to fight back’ — Colten Boushie’s mother delivers emotional messageThe gatherings ranged from vigils to protests, pulled together under the banner “Justice for Colten Boushie.” Two took place in Saskatchewan, the province where Boushie lived and died, while others took place or were scheduled to take place on Parliament Hill in Ottawa, Yellowknife, N.W.T., and as far away as Palm Beach, Fla.

However, the slide cannot snap open if the last round fired was malfunctioning, as Stanley’s testimony claims.

The slide needs the recoil of a fired round to snap into a locked position. Thus, even if he was out of ammunition, the only way the slide of the Tokarev could have been in a locked position would be if Stanley had done it manually.

Here’s the important part: Doing that should have safely cleared the gun’s chamber of the misfired round.

A properly functioning Tokarev would have ejected the malfunctioning round when Stanley racked back the slide. Then, when the round suddenly discharged, it would have done so relatively harmlessly on the ground, instead of into Boushie’s head.

So, for Stanley’s account to be credible, his gun loaded with malfunctioning ammunition also had to be malfunctioning itself.

The Tokarev would have needed to have a faulty extractor that failed to expel the cartridge, allowing the round to sit unnoticed in the gun’s chamber.

Notably, this would have needed to happen just once, as tests conducted after the shooting found the pistol to be in perfect working order.

“I simply don’t know what caused that firearm to discharge,” testified John Ervin, an RCMP Chief Firearms Officer called by the defence.

Greg Williams, an RCMP firearm specialist called by the Crown, was similarly baffled, offering at one point that the strange series of events described were caused by an “obstruction” in the barrel, even though no obstruction was later found.

While there is no physical evidence for Stanley’s ammunition experiencing a hangfire, the casing from the bullet that killed Boushie was found to have an unusual bulge when found by RCMP investigators.

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At trial, Ervin offered the explanation that the round could have discharged “out-of-battery,” a firearms term for when a cartridge detonates in the wrong place within a gun.

stanley farm 20.jpg: Gerald Stanley's ammunition for the Tokarev. © RCMP Gerald Stanley's ammunition for the Tokarev.

When a cartridge goes off “out-of-battery,” it’s simply exploding, rather than undergoing a controlled discharge within a chamber.

An “out-of-battery” firing would be consistent with Stanley’s testimony, but even then, it’s still not a given that the cartridge would have been able to propel a bullet down the gun barrel with enough velocity to kill Boushie.

If a cartridge is floating freely in a gun’s chamber and isn’t braced against anything, it could just as easily expel its explosive force out the rear of the gun, leaving a bullet harmless rattling around inside.

Ron Flowers, with the Pennsylvania-based Citizens Defense Training, told the Post that when bullets discharge in irregular circumstances they often become far less lethal.

“I’ve ejected (live) rounds out of a gun and let them fall to the ground and they’ve hit a rock and gone ‘bang’,” he said. “It scared the snot out of me, but it didn’t do anything.”

David Dyson, a firearms consultant based in the U.K., raised similar questions. “If a round was somehow in the chamber when the slide was ‘back’, then there would be no support … if that is correct, then it would be (fired) with much reduced energy,” he told the Post.

In a widely shared summary of the trial, Saskatchewan lawyer Rob Feist pointed out the “hard to believe” logic of Gerald Stanley fetching a gun to protect itself, only to immediately fire all of its ammunition into the air rendering the “firearm empty and useless for self-defence.”

He also called it an “extreme stretch” that the hangfired round exploded at the “precise second his Tokarev was aimed at close range at Colten Boushie’s skull.”

Gerald Stanley due back in court to face allegations he improperly stored 7 guns

  Gerald Stanley due back in court to face allegations he improperly stored 7 guns Gerald Stanley due back in court to face allegations he improperly stored 7 gunsStanley, 56, still faces two charges of improperly storing firearms on his Biggar, Sask.-area farm where Boushie was killed.

boushie vehicle11.jpg: The unusually bulged cartridge from the bullet that killed Colten Boushie, pictured as it was found by RCMP investigators. © RCMP The unusually bulged cartridge from the bullet that killed Colten Boushie, pictured as it was found by RCMP investigators.

Alan Voth is a retired RCMP gunshot-residue expert who lives in the Edmonton area and works as an expert witness.

He said the events Stanley described “could happen,” but he offered an alternative theory.

When Stanley fired into the air, it could have ignited the round’s primer without immediately igniting the gunpowder. The force of the primer would have been just enough to kick the bullet out of its casing and lodge it in the gun’s barrel.

Then, when the round detonated due to hangfire, the explosion would have blown the lodged bullet outwards.

Voth’s theory notably only requires the malfunction of the ammunition, rather than the simultaneous malfunction of the firearm as well. It also carries the added feature that the primer explosion could have jostled the slide, making it look to Stanley that his gun was empty.

MainArt: The Tokarev TT33 that killed Colten Boushie. © RCMP The Tokarev TT33 that killed Colten Boushie.

It’s just another theory, but Voth soon intends to acquire a Tokarev and put it to the test.

As he told the Post, “I believe I can recreate this event.”

• Twitter: TristinHopper | Email: [email protected]

Gerald Stanley due back in court to face allegations he improperly stored 7 guns .
Gerald Stanley due back in court to face allegations he improperly stored 7 gunsStanley, 56, still faces two charges of improperly storing firearms on his Biggar, Sask.-area farm where Boushie was killed.

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