A closer look at Stan­ley’s de­fence


Saskatoon StarPhoenix - - FRONT PAGE - TrisTin Hop­per Na­tional Post thop­per@na­tion­al­post.com

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.



Court ex­hibit pho­tos from the sec­ond-de­gree mur­der trial of Ger­ald Stan­ley in­clude, at top: the ve­hi­cle where Colten Boushie was shot to death. Stan­ley tes­ti­fied that he was try­ing to re­move the keys with his left hand, while hold­ing the gun, at the time it went off. Bot­tom left to right: The Rus­sian Tokarev TT33 that killed Boushie, and Stan­ley’s am­mu­ni­tion for the Tokarev.

Ger­ald Stan­ley


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