Be Aware

[Patocazador]

Does it have to be .40 at loading or .40 when it smacks into Bambi?
Because a .395 lead roundball is going to be a bit larger than .40 by the time it hits a critter.

IDK prolly both I am done pretending I know the law anymore

Most conservation officers don't know the law either. They just look for something to nail you.
I carry a brace of official responses from the state that says a cap & ball pistol IS a "muzzleloader" even though it doesn't load from the muzzle. I asked 4 LEOs about this and got one correct answer. Two of them said it was a violation and one didn't know.
After you get a positive ruling for your side (I hope) copy the judgment and keep it with you so future jerks and their supervisors will not write ridiculous violations. :td:

 

[S.Kenton]

The regs states .40 inch projectile diameter not .40 or 40cal.

Thats where they got you... that for sure is a POORLY written law and worth fighting! Heck ya might even get lucky and have a hand in getting that one changed....

 

[zimmerstutzen]

Disagree. A .40 inch projectile is what comes out, not necessarily what goes in. First, the prosecuting officer can only testify to what he was told by the Defendant. But that is not the legal question. The prosecution would have to have an expert qualified to answer the size of the projectile once started down the bore and once smacked from the rear by the ignition of the powder. I guarantee that neither the arresting officer or the supervisor understands obturation of lead bullets. Neither are probably sufficiently knowledgeable to testify as experts in ballistics of solid lead projectiles, much less projectiles in muzzleloaders. This is a unique set of circumstances. Only a swelling of 5 thousandths of an inch makes it legal. Just starting a moderately snug ball would flatten it and cause it to swell that much. I'll bet just dropping the ball on a hard floor would do the trick.

A minnie ball goes in smaller than it comes out simple concept. My 45-70 barrel slugs .459, but I load .457 pure lead bullets which swell up to fill the bore.

To the OP. be carefully to use the description pure lead. Not soft lead. If the question of hard cast projectile comes up, merely say it is hard enough to cause serious injury or death at 900 ft per sec.

 

[Vaino]

Everything made that is req'd to have some degree of accuracy has a tolerance....what's the tolerance on RBs?....Fred

 

[S.Kenton]

yes.. but what happens when the court asks for a roundball that the OP was using to hunt with? Then when he produces a RB of .395 and they measure it and the DNR states the BALL diameter has to be .40 and over..then what? I know it's "slicing hairs" but that's what the Officer was looking at and I feel the court will stand by him.
Interested to know though how this all comes out...

 

[bubba15301]

Ok to clarify for everyone I was honest and up front with the Game Warden (military game warden. He asked what caliber my flinter was and I told him 40 caliber then he asked what sized bullet it shot. I was honest and showed him a round ball and said its a .395 diameter ball and discussed the entire patch size combo for it. His supervisor showed up on scene and looked over everything and told me I was getting issued a ticket. He flat out asked me is I knew the caliber restriction for a muzzleloader and I told him 40 caliber or larger then he pulled out the rule book and showed me where it said 40 caliber bullet or larger. I was not rude at all with either gentleman. The biggest issue was it happened on a military base which means its a federal offense and tried by the military court system. Luckily my Commander is a big muzzleloader guy himself and thinks its garbage and to fight it and explained it to the higher brass that I was not trying to break the law at all and that its a poorly written rule. The biggest issue is I cant hunt on base until the issue goes to court no matter the plea guilty or innocent I still have to go to court. My commander will be going with me as a character witness and offer his intereptation of the rule as well. It goes to court on Friday (Tomorrow) I will let you know how it goes.

never heard of a military game warden, sure he wasnt an mp . never saw game warden as a military occupation or mos

 

[Loyalist Dave]

Well, first who is asked to produce this round ball? THEY have to prove he was in violation; he doesn't have to prove he was in compliance. In court you can't ask the defendant to produce evidence against himself.

Second, how does the defendant know the ball is actually .395... the label on the box or did he measure it? He probably doesn't "know".

Finally, he was cited for hunting with a bullet smaller than .40 caliber. If they didn't pull and keep the round ball from the rifle, they don't know either... they assume.

The questions to ask the officer are,

"If you came across a hunter using a rifle, and he shows you a round ball and tells you it's .440, how do you know he doesn't have a sabot loaded in the rifle with a .358 bullet? So the only real way to know would be to pull the bullet and measure it, right? How would you know the ball he showed you was .440 and it was a .45 rifle? How can you tell it's not a .395 ball and a .40 caliber rifle which he claimed was a .45? Do you ever measure or do you simply quiz people? If you do measure did you do so, and if not why not? What would you have done if the defendant had said he had a .45 and it used a .440 ball? Would you simply walk away? So you just take a person's word, but you don't really know if the person was incorrect about the bullet size? When a person is speeding does an officer use a measuring device, or do they stop the person, and ask them how fast they were going, and right them the ticket based on that? So you come across a driver who when stopped says they're drunk... you don't do any field sobriety tests or offer a breathalyzer, you just charge them? So back to the defendant..., you don't have any real evidence except for an alleged conversation?"

Again, it would've been simple for them to impound the rifle and have the ball pulled with CO2 and measured, and so you'd simply pay the fine, as there would be no argument. That's what I would have done, and I'd have already photographed the rifle for court and given it back to the defendant to boot.

Yep you screwed up but that doesn't mean the LEO's get to be sloppy about the job. As an LEO of 23 years, that was a sloppy job (imho) and you demonstrated good faith by not lying to them on the scene.

LD

 

[S.Kenton]

lets think about this for a second... IF i am out hunting or shooting my BP rifle.. I KNOW exactly what size RB I am shooting..or at least I know what it says on the box..anyone who does not.. should not be shooing BP. This is simply a case of the rules and regs. not being read correctly.. end of story.

 

[hanshi]

Just as an aside and directed to no one in particular is a situation I'm familiar with.

Back where I use to hunt (not here) there was a game warden who issued tickets to names he took off old tombstones. Corruption was/is respected there. He drew enough attention that he was eventually transferred, IIRC, not fired. His wife (a food service worker, ahem) got a prestigious political job in the county.

What I'm getting at is that there are those who simply want to write tickets and don't care about the laws or your rights. They are in the minority, thank goodness, but you never know when you'll run across one. I'm a former cop and have more than my share of "abuse of power" horror stories.

 

[Tony Logan]

Conservation officer of the year awards are given to the young guys that write the "most tickets for the state". It must be a competitive process to win one. I know a recipient of one of these prestigious awards for our state and he easily qualifies for A-Hole of the Year award. He even has family members that will vouch for that. He abuses his authority and sees every encounter he has with sportsmen and their families as a oppurtunity to write another ticket. I also knew a judge that got a conservation award as well. He was known for prosecuting any thing the conservation officers brought him without blinking an eye,100% prosecution rate. I know they are not all like that because I have encountered in the field and known many officers that treated me and my family fairly and actually used common sense. I explained my way out of a lot of simple things that would have costs me most likely with todays officers. Everyone they encountered wasnt guilty or trying to get away with something, the problem is most of these guys are now retired or have passed away.

 

[stinkyfeet]

Ok to clarify for everyone I was honest and up front with the Game Warden (military game warden. He asked what caliber my flinter was and I told him 40 caliber then he asked what sized bullet it shot. I was honest and showed him a round ball and said its a .395 diameter ball and discussed the entire patch size combo for it. His supervisor showed up on scene and looked over everything and told me I was getting issued a ticket. He flat out asked me is I knew the caliber restriction for a muzzleloader and I told him 40 caliber or larger then he pulled out the rule book and showed me where it said 40 caliber bullet or larger. I was not rude at all with either gentleman. The biggest issue was it happened on a military base which means its a federal offense and tried by the military court system. Luckily my Commander is a big muzzleloader guy himself and thinks its garbage and to fight it and explained it to the higher brass that I was not trying to break the law at all and that its a poorly written rule. The biggest issue is I cant hunt on base until the issue goes to court no matter the plea guilty or innocent I still have to go to court. My commander will be going with me as a character witness and offer his intereptation of the rule as well. It goes to court on Friday (Tomorrow) I will let you know how it goes.

never heard of a military game warden, sure he wasnt an mp . never saw game warden as a military occupation or mos

You are correct he was an Military Police task with and trained as a Game Warden but still an MP. His supervisor was a civilian man however but so are many of the Military police on Post. I go to court tomorrow morning at 0930 hours. I plan to come in honestly and state my case as it happened and add nothing even though I could be shady and bring in conicals that will mic out a touch over .40 I stand by what I did and will make my case and see how it plays out. Update will be after court

 

[Walks with fire]

I am sure a box of .395 ball would say 40 caliber on it just like a box of 50 caliber says .495. A box of .429 bullets say 44 caliber. It all comes down to whether the law has a . then the number or it just says caliber.

Where the law gets you is that they say that the intent of the law is this or that even when it say's something else entirely. I feel your pain but they got you probably. Fighting it will just be a waste of time and effort; just live and learn.

 

[zimmerstutzen]

What some of you are missing is that a .395 round ball is no longer .395 after it has been started down the barrel. And it certainly is no longer .395 after it has been fired. What size of balls were in the box is irrelevant. Just like the size of balls in the box is irrelevant to the size of the bullet coming out of a cap and ball revolver. In the latter, the ball comes out smaller, in the muzzle loader rifle, the ball is deformed at starting at the muzzle, possibly when seated on the powder and again when the powder goes off. It is what was in the gun or what size the ball is when fired out. I have yet to meet a WCO or LEO that has enough grasp on muzzleloader shooting to understand that. Probably very few even know the word obturation as it relates to projectiles.

The shame of it is that unless the OP cab convince the judge of this, he will be railroaded by the system.

Somebody asked what happens when they measure one of the balls from the box. 1) they can't force him to produce one and 2) what are the chances that the LEO has a sufficiently calibrated measuring device to even discern whether it is .40 or .395. Just like radar guns and noise meters, the results do not come in unless there is a statute or they were recently calibrated. They sure aren't going to measure it with the average wooden or plastic desk ruler.

In fact what the box said on it, is hearsay evidence and should be excluded on objection. (An out of court statement or writing introduced for the truth of the statement. There is no way to cross examine the person who made or wrote the statement.) The rules of evidence would almost universally exclude what the box said. What the defendant stated they were can be introduced, but I would object to that as well. He was merely repeating the hearsay statement on the box. Such close tolerance measurement is not something the layman can know by looking at something. He would have had to measure it with a sophisticated device, like a vernier or micrometer.

 

[stinkyfeet]

Update: The charges and fines were dropped. I explained to the judge using honest and professionalism the fact that the ball while undersized originally expands as it is pressed down the barrel to seal off with the 40 caliber rifling. While I would like to think it was my great debating powers the issuing officer failed to take a ball for evidence, or the rifle in question, which I had in my truck and offered photos to the judge. The judge also stated that the law is very vague and easily open for interpretation and even he doesn't understand it as an experienced hunter. He did ask a lot of technical questions and showed an interest in learning about muzzleloaders. He also asked what the diameter was of a 40 caliber S&W round I told him I honestly didn't know but would make an educated guess its small then .40 or else it would be rough going out the barrel. I am now clear to hunt with a .40 caliber muzzleloader regardless of the ball size so long as the gun is clearly identified as a 40 caliber. He added a side note that is the will be looked at on base but hunting anywhere else in Kansas he doesn't have power to rule over, and advised to get additional clarification.

 

[S.Kenton]

VERY COOL!!!! Glad to hear that common sense prevailed!

 

[Problem Child]

That is great.Sounds like you had a good judge too.

 

[zimmerstutzen]

Congrats Mr. Darrow

 

[Powderhorn09]

Sounds like the Judge might have left an opening for you to 'recruit' another muzzleloading participant. Glad things worked out and since you are obviously military, 'Thanks for your service' and watch you topknot!!
Powderhorn09

 

[BillinOregon]

2 Tall: I just love it when justice prevails. Thank God both you and the judge each possess a tall measure of common sense.

 

[54ball]

:thumbsup: :thumbsup: