A closer look at the Stanley defence
THE EXTREMELY UNLIKELY DEFENCE THAT SECURED HIS ACQUITTAL
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 last week hinged on a claim of hang fire, a 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Boushie was killed with a Tokarev TT33, a semi-automatic pistol originally made for the Soviet Red Army.
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 two bullets 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.
Hang fire 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, hang fires are a phenomenon that will typically only occur once or twice in a lifetime, if at all. Additionally, the typical hang fire only lasts a split second.
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 hang fire.
“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 hang fire.
On CanLii.org, a searchable database of thousands of Canadian legal decisions, there is only one mention of the term “hang fire.” Contained in a 1989 negligence case against the Remington Arms Company, it involved a .22 cartridge that exploded roughly 10 seconds after being fired.
Wayne Popowich called up Stanley’s legal team after reading about the case in the media and was soon placed on the witness stand to describe an event from 40 years ago in which he fired an unmaintained rifle and had it behave exactly the same as Stanley’s Tokarev.
However, a clear point in Stanley’s favour is that he was using ammunition that was particularly prone to hang fires. 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.
“Hang fires 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.
Nevertheless, even with a hang fire, one more unlikely event needed to occur to ensure Stanley’s version of events. Before approaching the vehicle, 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. 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.
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.
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 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 hang fire, the casing from the bullet was found to have an unusual bulge.
At trial, Ervin offered the explanation that the round could have discharged “outof-battery,” a term for when a cartridge detonates in the wrong place within a gun.
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 barrel with enough velocity to kill Boushie.
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 said.
In a widely shared summary of the trial, Saskatchewan lawyer Rob Feist pointed out the “hard to believe” logic of Stanley fetching a gun for protection, 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 hang fire round exploded at the “precise second his Tokarev was aimed at close range at Colten Boushie’s skull.”
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 hang fire, 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.
IT WOULD BE AN ‘EXTREME STRETCH’ THAT THE HANG FIRE ROUND EXPLODED AT THAT ‘PRECISE SECOND.’