We’ve had a spate of gun owners dropping guns that somehow manage to “go off.” Yesterday, we offered a fairly plausible – if entirely inexcusable – example: a dropped derringer that discharged delinquently. (Or, less passively, a negligent gun owner who dropped a derringer that discharged.) Today, wbiw.com reports that “Columbus Police Chief Jon Rohde was at the store at about 8 p.m. Saturday night when he heard a gunshot . . .

Rohde told The Republic that 56-year-old Tony E. Ward of Columbus had been carrying a .22 pistol in a holster on his waistband. The gun fell from his waist and discharged. The bullet went through a soda bottle in a cart and struck the right arm of 26-year-old Virginia Thompson, who was pushing her newborn baby when the gun went off. The bullet hit the outside of Thompson’s arm and after treatment by paramedics she declined to be taken to the hospital. Rohde told the paper that Ward had a permit for the handgun and Ward was not arrested.

Another derringer per chance? Anyway, in neither case did the police press charges against gun owners who carried their firearms in an irresponsible manner (ipso facto). Should they? Should the offender’s license be suspended? Should there be a distinction between NDs in public places, at home or on the range? Or is it a matter of leave well enough alone? [h/t WW]

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100 Responses to Question of the Day: Should Prosecutors Punish Negligent Discharges?

  1. If they hurt nobody but themselves… That punishment is enough. If somebody else gets hurt… Time to bust out the cuffs.

    • I agree, no harm, no foul. Pay for what you damaged, learn your lesson, and move on with life.

    • I second. True, it is the same act, but the pain, the shame, and the medical bills are probably enough to teach a lesson for self-inflicted injury.

    • That’s the kind of thinking I’d expect from Shannon Watts.

      If a person driving a car has a negligent collision, the cops won’t arrest him (under most circumstances). Why should the burden be higher for gun owners?

      They should be financially liable for any damage they cause. But unless the negligence meets the level required for criminal charges with other inanimate objects, there should be no arrest.

      • Yes, they do. If you cause an accident and are issued a summons to appear – Following Too Closely, Speed In Excess of Reasonable For Conditions, etc. – then you got arrested. Just because you didn’t get hauled off to the slammer doesn’t mean there was no arrest. Arrest means you are not at that moment free to go.

        • “Arrest means you are not at that moment free to go.”

          Actually, DETAINED means you are not at that moment free to go.

          Arrested means quite a lot more. I know, because I was arrested once.

      • Let’s be rational about this. A ND is called a “negligent” discharge for a reason. It is impossible to have one except by being negligent. Modern guns in good condition do not just “go off”, proving the incident accidental should be an affirmative defense.

        On the other hand, there are plenty of variables beyond your control on a roadway. Surface conditions, visibility, other drivers, etc… There, the overwhelming probability is that an accident is exactly that. The burden of proof lies on the state to prove malfeasance on the part of the driver.

        Now let’s step back to our ND scenario… If a person has a ND and does not harm others? No real crime has been committed… If there is harm to others, then logic dictates that negligence took place and that the shooter has some ‘xplaning to do. A good parallel would be the difference between running into a tree and running into a person on the side walk. The former gets you, at worst, a ticket. The latter gets you a trip in pretty bracelets.

        • There are negligent vehicular collisions (I used that term instead of ‘accidents’ for a reason). In fact many collisions are due to negligence (distracted driving, unsafe driving, etc.).
          If a person is texting while driving and causes a collision that results in injury, he’ll likely get a ticket, which is a civil complaint, not a criminal one.
          The original post referred to handcuffs, which implies a criminal charge, like for a DUI or going 100mph in a school zone.
          The fact that the negligent person had a gun rather than a car, lawnmower, or other dangerous tool should not be a factor.

        • Given that we have rolling tonnages of steel driving within feet of one another at different speeds and often in different directions all subject to the physical and mental capacities of humans I find it amazing we aren’t all dead.

          But guns are simple. Triggers are simple. I wish we could drop the car analogies altogether.

      • Because when the bullet leaves the barrel, you are no longer in control of it. That is your responsibility.

        If you put a brick on the accelerator of your car and then sent it down the highway without you in it, same thing.
        Granted, the brick thing would be hard to do accidentally but you get the point.
        Knowing that your firearm can do harm at a great distance from the point of firing, there is a greater responsibility to carry it safely. Failing to do so can easily be seen as criminally negligent.

      • Id like to know where you live where if you cause an accident and physically harm someone else that there is no punishment. Especially if there’s a death. Vehicular manslaughter. Can get as much 20 years for that depending on the circumstances.

    • I believe in the paper trail. Charge the individual with a misdemeanor of disturbing the peace or something like that. The DA doesn’t have to put the person in jail. A fine or some community service. But it goes on a record. That way if the same individual has a consistent problem, with their guns, like carrying into an unauthorized location, ADs, generalized stupidity then they can look at taking the guy’s rights away. Accidental Discharges are potentially fatal. There is a real consequence for not knowing what you are doing. When you screw it up (because you didn’t get the training, because you didn’t practice, because you were not doing what you are supposed to) you should be punished.

      If there isn’t any punishment, more than likely there isn’t any behavior change. Hey dumb-dumb, that once-size-fits-all, cheap-ass holster doesn’t fit your gun and it falls out easy, get a new one before you really hurt someone next time.

      I knew someone that had an AD who put their pistol in their pocket with keys and ended up with a nice burn down the side of their leg (first time the gun had been shot since they bought it). Two weeks later they were still keeping their pistol in their pocket instead of spending a little money on a quality holster.

  2. There are definitely times where discretion should be used prosecuting, but for the most part yes, you are responsible for your negligence.

    • So an otherwise law abiding gun owner has a ND in his/her own home, it harms no one and damages only his/her own property. Are you implying that such a person should be charged?

      My father backs his SUV over the little lights he has lining his driveway on an annual basis. Should he be charged for that too?

      No victim, no crime.

      • I disagree with that analogy. Assuming this is a state where there are legal restrictions on how you carry/store/discharge a firearm on your property then that is very different than getting into a fender bender in your garage. There are no roadway laws for your own driveway.

        • Brian,

          I believe you are misunderstanding the topic of this post. The question is whether or not we support law enforcement arresting someone who discharges their firearm unintentionally or negligently.

          I encourage you to reconsider your blind acceptance and obedience to unjust laws. Remember, government’s primary purpose is to secure our rights, not define what we may or may not do by legislative fiat.

        • You’re making the assumptions that:

          1) That such laws carry any moral weight. “Shall not be infringed…”

          2) That the presence of such a law undermines my analogy even though the results are identical.

          3) That driveways are somehow traffic law free zones.

          4) That such laws are enforceable without demonstrating intent. That’s not necessarily true. Many such laws depend on the government being able to prove to a reasonable person that the shooter had the intent to violate the law. You know… the reason why manslaughter and murder are two different things. Context and intent matter. Let’s say I live in a town that does not permit the intentional discharge of a firearm within the city limits. There’s a big difference between John having an ND and John shooting bottles off of his fence.

          5) That such laws are enforced without any prudence or prosecutorial discretion whatsoever. Let’s say I live in a city with a law that reads like this: “The discharging of a firearm within the city limits is prohibited.” I am walking down the street minding my own business and I am forced to discharge a lawfully carried handgun in a defensive gun use. It’s a good shoot and my use of force complies with state law. Should I be prosecuted for discharging a firearm? By the letter of the law, I have committed a crime. Realistically will I be charged? Provided that I do not live in a slave state (I do not), I can reasonably expect to be cleared of any wrongdoing. Hypothetically if I am a dumbass and have a 100% victimless ND, there shouldn’t be a difference because the letter of the law and the spirit of the law are two different things. Now that is up to the local DA to decide, but IMO a lot of non-slave state DAs have bigger fish to fry.

          I’d like to offer the following scenarios for your consideration to expand on #2:

          Scenario 1: My dad takes out a glock to clean it. He has an enormous, terrible brain fart. Aiming it at the wall, he squeezes the trigger so that he can disassemble the weapon. Like a dumbass, he assumes it isn’t loaded and doesn’t properly clear the weapon. Well, it IS loaded and the round goes through the wall and hits one of the lights he lines his driveway with. The light is destroyed. He is forever shamed and taunted mercilessly every thanksgiving because his son keeps the destroyed light and showcases it annually his own amusement.

          Scenario 2: My dad is backing out of his driveway. He has an enormous, terrible brain fart. He’s failed to remember the staked, solar-powered lights that he lined his driveway with. In a rush, he carelessly backs over one. The driveway light is destroyed. He is forever shamed and taunted mercilessly every thanksgiving because his son keeps the destroyed light and showcases it annually for his own amusement. Plus his son has a collection because his father seriously does this at least once a year.

          Are the results of scenario 1 and scenario 2 any different? Realistically, there is ZERO difference. Though if my father were ever careless enough to have an ND (he isn’t) he would NEVER be that careless again. Whereas with the driveway lights… well he helps keep home depot in business. Why should one be different than the other? Because of the gun? If that’s your tack then you’re no friend to the RKBA.

          Let’s replace “driveway light” with “kid.” Instant manslaughter if he’s using the SUV. What would it be with the gun? Capital murder? See how that makes no sense? While tragic and awful, the person driving the SUV didn’t mean to harm the child in either case. He is neither more negligent nor less negligent in either case. The results are identical: dead kid. Is the crime somehow more egregious with a firearm? If you believe it is, then you and I view the world through radically different eyes. That distinction is solely one of emotion and perception. Emotion and perception should have no place in the law. Only facts and logic should matter. Why is it different with a gun? Because wealthy, white soccer moms drive SUVs? The implication hiding in plain sight is that the guy who owns the glock is bad because he is a gun owner. Anyone who actually thinks that there is a difference should take a cold, hard look at their own prejudices.

        • You’re making the assumptions that:

          1) That such laws carry any moral weight. “Shall not be infringed…”

          2) That the presence of such a law undermines my analogy even though the results are identical.

          3) That driveways are somehow traffic law free zones.

          4) That such laws are enforceable without demonstrating intent. That’s not necessarily true. Many such laws depend on the government being able to prove to a reasonable person that the shooter had the intent to violate the law. You know… the reason why manslaughter and murder are two different things. Context and intent matter. Let’s say I live in a town that does not permit the intentional discharge of a firearm within the city limits. There’s a big difference between John having an ND and John shooting bottles off of his fence.

          5) That such laws are enforced without any prudence or prosecutorial discretion whatsoever. Let’s say I live in a city with a law that reads like this: “The discharging of a firearm within the city limits is prohibited.” I am walking down the street minding my own business and I am forced to discharge a lawfully carried handgun in a defensive gun use. It’s a good shoot and my use of force complies with state law. Should I be prosecuted for discharging a firearm? By the letter of the law, I have committed a crime. Realistically will I be charged? Provided that I do not live in a slave state (I do not), I can reasonably expect to be cleared of any wrongdoing. Hypothetically if I am a dumbass and have a 100% victimless ND, there shouldn’t be a difference because the letter of the law and the spirit of the law are two different things. Now that is up to the local DA to decide, but IMO a lot of non-slave state DAs have bigger fish to fry.

          I’d like to offer the following scenarios for your consideration to expand on #2:

          Scenario 1: My dad takes out a glock to clean it. He has an enormous, terrible brain fart. Aiming it at the wall, he squeezes the trigger so that he can disassemble the weapon. Like a dumbass, he assumes it isn’t loaded and doesn’t properly clear the weapon. Well, it IS loaded and the round goes through the wall and hits one of the lights he lines his driveway with. The light is destroyed. He is forever shamed and taunted mercilessly every thanksgiving because his son keeps the destroyed light and showcases it annually his own amusement.

          Scenario 2: My dad is backing out of his driveway. He has an enormous, terrible brain fart. He’s failed to remember the staked, solar-powered lights that he lined his driveway with. In a rush, he carelessly backs over one. The driveway light is destroyed. He is forever shamed and taunted mercilessly every thanksgiving because his son keeps the destroyed light and showcases it annually for his own amusement. Plus his son has a collection because his father seriously does this at least once a year.

          Are the results of scenario 1 and scenario 2 any different? Realistically, there is ZERO difference. Though if my father were ever careless enough to have an ND (he isn’t) he would NEVER be that careless again. Whereas with the driveway lights… well he helps keep home depot in business. Why should one be different than the other? Because of the gun? If that’s your tack then you’re no friend to the RKBA.

          Let’s replace “driveway light” with “kid.” Instant manslaughter if he’s using the SUV. What would it be with the gun? Capital murder? See how that makes no sense? While tragic and awful, the person driving the SUV didn’t mean to harm the child in either case. He is neither more negligent nor less negligent in either case. The results are identical: dead kid. Is the crime somehow more egregious with a firearm? If you believe it is, then you and I view the world through radically different eyes. That distinction is solely one of emotion and perception. Emotion and perception should have no place in the law. Only facts and logic should matter. Why is it different with a gun? Because wealthy, white soccer moms drive SUVs? The implication hiding in plain sight is that the guy who owns the glock is bad because he is a gun owner. Anyone who actually thinks that there is a difference should take a cold, hard look at their own prejudices.

      • So what about drunk drivers who don’t hury anybody? Should that be legal too? Cops should just stop trying to catch them before they cause damage, right? Like you said, no victim, no crime. Just like backing over some lights.

        Also that is a terribly shitty analogy. Backing over some lights presents very little danger to others. People discharging firearms when they don’t mean to is vastly more dangerous. In a preventive case like this you need to evaluate the potential outcome, not just the one that happened. With your logic attempted murder isn’t even a crime if you miss.

        • Actually it isn’t a shitty analogy. A driver who carelessly backs up over an object HE KNOWS IS THERE is paying so little attention that he’d probably hit a jogger or a child if they happened to be behind him. Why is it more dangerous to be reckless with a firearm than with a vehicle? What kills more people each year? Careless driving or careless firearm handling?

          Also, the difference between DUI and an ND is intent. NDs, while negligent and reprehensible, are accidents. No one ever intends to have an ND. Otherwise it would just be a discharge, see? Drunk drivers, on the other hand, CHOOSE to get drunk and CHOOSE to get behind the wheel. You see context and intent matter dude.

          Even still, where have these drunk driving laws gotten us? People die in every city every weekend because of them. All of our future-crime laws haven’t prevented a thing. Much like gun control laws… see how that works? I wonder if you’re even aware of the similarity.

          Want to stop drunk drivers? De-criminalize the act of drunk driving but criminalize the consequences. Drunk driving, unlike NDs and car accidents, involves the willful and wanton decision to put others at risk. Stop giving them a pass when they crash. A few weeks in jail? What person who is already reckless enough to drive drunk will be deterred by that? The death toll tells me that they are not deterred.

          How about this. If you damage property as a result of drunk driving, make them liable for twice the damages and a $100,000 fine. If you kill someone, you get the chair. No if ands or buts, no more than four weeks following the conviction. If you drive drunk and you are also killed then the victim’s family gets to take possession of your entire estate and anything jointly owned by you.

          Craft the laws and start executing drunk drivers who kill people for negligent homicide. Put it on live TV. See if people still drive drunk. Making the act illegal and only offering a slap on the wrist hasn’t accomplished a f*cking thing. Future crime laws never do.

          Also your attempted murder argument is absurd. Once again, intent and context matter. Additionally, attempted murder still has a victim. Your inability to see the similarities between useless gun control laws and useless DUI laws speaks volumes.

  3. How about they start with the “ND’s” by the boys in blue first and if that works out we can talk about the ‘civilians’ they want to persecute… err prosecute.

  4. I feel bad, but I can’t stop myself from laughing every time I see that video of Tex shooting his effing self.

    I think it’s just the way he said “I just effing shot myself”. Hysterical.

    And yeah, I know… No one is immune. Sorry, I can’t help it.

    Anyway, I would think ND’s have to be judged on a case by case basis and ultimately, the result will dictate the response – as with most things.

  5. Wasn’t there an NFL player a few years back who managed to drop a pistol from his sweat pants while out on the town? That’s… inept. If you’re going to carry, buy a decent holster and secure your weapon. That seems obvious.
    My favorite ND stories involve guys with cowboy-style holsters who have their finger on the trigger as they lift the weapon vertically… and shoot themselves in the foot, trigger weight being less than the weight of the weapon. “Safety is no accident” as they say.

    • Probably thinking of Plexico Burress, managed to shoot himself in the leg with a Glock he was concealing unlawfully while in a nightclub in New York, got 2 years in prison for it.

  6. Well…. in this case I don’t think there really needed to be a charge. I wouldn’t be surprised if the guy ends up getting sued for it anyway.

    Now as for an over all concept of charging someone that has a ND… I’m going to have to err on the negative side. At least when we’re talking about this exactly incident where none were harmed. Attaching an automatic penalty to any one action will tend to have unintended negative consequence.

  7. Make them take a safety course, including mandatory inspection of the firearm that “went off”. This should be followed by an explanation of what defect or operator error caused the negligent discharge.

    You would think that genuinely unsafe handguns would all have been driven off the market by now, but I regularly see people bring antediluvian “Saturday night specials” and pot metal derringers into local gun shops, usually looking for .32 or .38 S&W ammo. The price of obsolete ammo usually convinces them to get something more modern, but when the gun in question is a .22, and a lot of the guns involved in negligent discharges seem to be rimfire, they just go buy a box of .22s and the antique is never seen by someone who might caution them against using it.

    Having said that, I do believe that most of these incidents are caused by negligent handling.

  8. Just watched the video.
    As a side note, hospitals are required to report gunshot wounds.
    Will Tex end up on moms list as another “child” injured by a gun?

    • How old do you think he was at the time?

      24, 25, maybe a little older. Yeah, he’s close enough, another child victim of gun violence.

  9. You can be punished for failure to maintain control of a vehicle, why not the same. As long as its enforced across the board.

  10. NOPE.

    But certainly, we SHOULD and MUST punish #GovtTerrorist primates who’ve apparently never graduated booger-finger control school who attempted 2nd Degree murder or at least attempted manslaughter, and as per usual IF WHEN the criminal gets off scott-free and a civil suit ensues, those culpable state actors should always be personally be held liable. NOT paid for by the County taxpayers.

    Can you imagine, how quickly every incident of copthuggery will drop, if every LE in US had to be personally held financially, civilly, and criminally held liable, without having the idiotic, utterly fictitious and UnConstitutional made-up BS faux-legalese: “qualified immunity” can never be invoked nor accepted, where the entire citizenry become aware of #JohnBadElk and Jury Nullification??

    Seriously, does any amount of money alleviate having your home raided, because the illiterate knuckle-dragging monkeys never heard of Google Maps, let alone the definition of the term “reconnaissance,” let alone know how to read enough to distinguish multiple addresses, and having a terrorist “accidentally” put a round through your “breast,” “abdomen and both thighs,” leaving you in a permanent state of pain, and will get increasingly worse, as you age, like this Long Island, NY woman found out the hardway that no Alqaeda will ever attack her, but a tax-funded operator wannabe assholes, certainly have and will??

    Iyanna Davis, Hempstead woman accidentally shot by Nassau cop, to get $650G

    Originally published: May 23, 2014 7:43 PM
    Updated: May 23, 2014 9:50 PM
    By ROBERT E. KESSLER robert.kessler@newsday.com

    A Hempstead woman shot by a Nassau County police officer searching for suspected drug dealers who lived in the apartment below her has reached a $650,000 settlement with the county, according to her attorney and court records.

    Iyanna Davis was shot in 2010, once in the breast, by a bullet that then went through her abdomen and both thighs, by an officer who said his assault rifle went off accidentally, court records say. Davis was never charged with any crime and the officer was cleared by an internal police investigation of any wrongdoing.

    “My client is pleased and justice has been served,” Davis’ attorney, Charles Horn of Lake Success, said Friday.

      • Just being literate will suffice; as a citizen of a supposed constitutional republic, one has no excuse in not understanding fundamental principles of Common Law heritage and foundation:

        Manslaughter

        Manslaughter is the act of killing another human being in a way that is less culpable than murder. See Homicide.

        Under both the common law and the Pennsylvania Method of differentiating degrees of murder, manslaughter was divided into voluntary and involuntary manslaughter:

        •Voluntary manslaughter is intentionally killing another person in the heat of passion and in response to adequate provocation.
        •Involuntary manslaughter is negligently causing the death of another person.

        Under the Model Penal Code, manslaughter includes:

        •Reckless homicide
        •Homicide that would be murder, but “is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse.”

        See Model Penal Code § 210.3

        Title 18 › Part I › Chapter 51 › § 1112

        18 U.S. Code § 1112 – Manslaughter

        (a) Manslaughter is the unlawful killing of a human being without malice. It is of two kinds:

        Voluntary—Upon a sudden quarrel or heat of passion.
        Involuntary—In the commission of an unlawful act not amounting to a felony, or in the commission in an unlawful manner, or without due caution and circumspection, of a lawful act which might produce death.

        (b) Within the special maritime and territorial jurisdiction of the United States,
        Whoever is guilty of voluntary manslaughter, shall be fined under this title or imprisoned not more than 15 years, or both;

        Whoever is guilty of involuntary manslaughter, shall be fined under this title or imprisoned not more than 8 years, or both.

        If you read the article, and researched whatever is currently made public a bit deeper in the above Long Island case, and don’t think what the moron SWAT fuck did qualifies as that, then apparently you believe in two separate class of laws and people.

        But really, who gives a scheisse? The #GovtTerrorists never follow what’s legal, lawful or constitutional: they ‘follow’ whatever the fuck that they can get away with.

        If one has not figured out by now, that we do NOT live in a nation of Laws, anymore, if ever, all this discussion is moot.

        Rest is all passing bliss. C’est la vie.

  11. How about they take a safety course with emphasis on proper carry techniques? Like how if you get a traffic violation you can go to traffic school to avoid penalties.

  12. I think that you should be responsible for damages and injury to others in all cases, but not necessarily an automatic arrest.

    If someone is carrying a firearm in public I would hope that they would have it in a proper holster and it would be an appropriately designed and maintained firearm that will only fire when the trigger is pulled. Kept in the holster they pose no danger and even if they fall out then only an embarrassing moment. People who carry damaged, hacked on, or inappropriate styles of firearms or firearms not in an appropriate holster might qualify for a criminal charge if they have a AD in a public venue. At home if the bullet doesn’t leave the area and damage other peoples property or injure other people then the police should not be involved if it is an AD. Multiple incidents might warrant investigation.

    • There is no such thing as an “accidental discharge”… It’s called a “negligent discharge” for a reason. In my entire time in the corps, not a single member of my unit had a ND. Good training and good discipline makes NDs virtually impossible.

      • Where I was deployed there were `clearing barrels’ at every common area tent entrance. 55 gal drum cut in half in a sandbag base with a hole in the middle, looked like a Civil War era mortar. Remove magazine & charge/dry fire twice into barrel. An AD got you a field grade Article 15.

        • Yeah… I’ve dealt with those barrels. What service were you in Herb? I’ve had it beat into my skull from day one of recruit training that there is no such thing as an AD… Might be a Marine thing…

      • “Accidental” refers to intent. If you didn’t intent for the firearm to discharge, it’s accidental.

        • If you didn’t have intent it’s an accidental discharge? No sir, I disagree, if you didn’t have intent it’s a negligent discharge. You are responsible for every bullet that comes out of the muzzle of your firearm. It one comes out that you didn’t plan on, it’s negligent.

  13. Should the police arrest everyone who has an automobile accident? I don’t think so. Some negligence may be criminal. Some negligence is a civil matter and should be treated as such. Arresting everyone who has a ND is just one more step toward being a fascist state.

  14. Yes, you’re damned right you should be prosecuted.

    If a little boy gets shot in the head because you dropped your damned pistol, then yeah, sorry but, enjoy sharing a cell with Bubba.

    Part of being a gun owner is being RESPONSIBLE. There’s enough crap going on in the world now with special interest groups sharing the general notions and principles that ALL gun owners are careless and wreckless. Accidental discharges don’t look good and make us all look bad.

    If it’s too challenging of a task for you to handle your firearms properly, then perhaps you shouldn’t be handling them at all.

    • I hope you get arrested the next time you’re at fault for a fender bender.

      You are always responsible for your shot. If it goes through the wall and causes damage to your neighbor’s property, you are absolutely liable for the cost of the damages. If it goes through the wall and injures someone, you are absolutely liable both criminally (if the victim decides to press charges) and civilly. If someone is killed, then you are guilty of manslaughter and should be punished as such.

      But a blanket prosecution for any ND? Even if it causes no damage or injury? That’s statist nonsense Sir. How would you like it if they applied that standard to speeding? Or fender benders? What if erosion from your property damages your neighbor’s foundation? What if branches from your tree go untrimmed and rip your shingles off in a wind storm? What if they rip off your neighbor’s shingles? What if you fail to signal? What if that tree rots and falls over and hits your shed? What if you fail to de-ice your driveway and someone breaks their leg? What if an old branch falls and injures your neighbor? Those are ALL examples of negligence. Some only cause damage to your property. Some damage others’ property or cause unintentional injury. Some don’t cause any damage or injury. Should you be prosecuted for those things too? There is no difference. You’re going to reply that there is, but that difference is only in your mind. It is a difference in perception.

      There is a big park behind my house. If I hit a golf ball and I accidentally damage a neighbor’s roof, I am civilly responsible for the damage. If I have an ND and it damages the same neighbor’s roof, I am civilly responsible for the damage. By your logic, should I go to jail for the bullet and not for the golf ball? Why? I hypothetically hit my neighbor with a golfball and it kills him. I am guilty of manslaughter. I hypothetically do the same by having an ND. Am I guilty of a more severe crime in that scenario? Because of the type of tool involved?

      In the same scenario, instead of hitting my neighbor it lands harmlessly in his lawn, causing nothing more than a dent in the soil. No victim, no damage. Should I be prosecuted? The same occurs when I hypothetically have an ND: the round goes out my open window and lands harmlessly in his back yard causing no detectable change. No victim, no damage. Should I be prosecuted? If so, then why? Explain it to me. Because of the “potential” for damage or harm to others? Explain to me logically why that is different from a golf ball or a big dead tree branch that falls on his side of the fence? The branch was very dangerous; I personally know of a woman who died that way. My neighbor was nowhere near where the branch fell but there certainly was the potential that he could have been killed. Is THAT what we’ve come to? Throwing people in jail for what COULD have happened? Not even “future-crime…” but “didn’t-occur-but-could -have-hypothetically-occurred-crime?” Is it different than failing to signal? Surely there’s a lot of potential for damage, injury or death there. Should you be prosecuted for that negligence?

      No victim, no crime. Think about it.

    • What if it discharges into the poured conrcete wall in the basement of your simgle family home? No injury, just damage to your own property and reported by the neighbors that keep throwing their dog poop into your yard. And the HOA finds out. And part of the covenant prohibits firearms.And your locally elected Sherrif is strongly against private ownership.

  15. How many people get into car accidents each year? How many have TTAG readers been in? And how many of those accidents were for inattentiveness or other recordable “Irresponsible Car Drivers of the Day” actions? Unless the accident has egregious results, it’s pretty rare to be arrested and prosecuted for a car accident. If you’re drunk, stoned, or your negligent driving results in serious injury or death – you should be prosecuted – whether the accident is with a car or a firearm. If not, the punishment should fit the crime – misdemeanor or no charge at all, and pick up the tab for whatever damage you caused.

    We have enough ways to be punished simply for owning the wrong gun or magazine at the wrong time or place. I fail to see where adding additional, mandatory arrest for an ND serves the public good, any more than “zero tolerance” rules at school regarding guns, gun drawings or Pop Tarts preserves student safety.

  16. The only time criminal charges for anything should ever be filed is if another person is harmed. Period. Full Stop.

  17. Should they? Probably.

    Would they? Highly doubt it.
    If they did they would have to do alot more than paid suspensions for every cop’s gun that just goes off as well.

  18. If you are going to bust out the cuffs every time someone get “accidentally shot”, then it’s time to bust out the cuffs every time someone injures another person in a car accident, kids drown in swimming pools, kids take too many of mom and dad’s scripts etc, etc, etc.

    There should be no difference, how about when a parent accidentally scalds a child in a bathtub and let’s not go there when a surgeon makes a mistake, if we jail surgeons for
    accidentally injuring someone, the hospitals will be empty and the jails full to overcrowding.

    Just sayin’

  19. I spent 7 years in the USAF as an SP. Of the thousands of SPs I worked with in that 7-years who carried pistols (chambered round, safety off, holstered), there was exactly 0 (zero) negligent misfires. We did have an augmentee shoot a hole through a clearing barrel with an M-16, but no NGs. For an SP, an NG was a gateway to an Article 15 and a career path outside the USAF. Firearm safety is not that hard. It is not difficult to train yourself to make safe handling of firearms instinctual. It is not hard to review the safety of specific firearms and holsters. So, I firmly believe people need to be held accountable, but I am against leftists using this as a way to push their agenda though the back door.

  20. Only if they hurt others. If they hurt themselves that is the punishment. Saying they should prosecute NDs is just giving them another chance to violate your privacy, rights, and grow their power. Don’t need an investigation every time a door slams and some “thinks they heard a gunshot”.

  21. The problem is that the term “negligent discharge” is often misused. To me, a negligent discharge is “I was cleaning my gun, forgot to clear it first, pulled the trigger…” Spinning your heater round your index finger while pretending the be Wild Bill at a early 20th century western show is not a negligent discharge, it is a reckless (and criminal) one. Getting your windbreaker drawstring caught in your holster and having your gun go bang upon re-holstering is a ND — “dry firing” while your gun is “wet” is not… Trying to catch a falling revolver and firing is, I would argue, a ND… Anything firearms related following the phrase “Hey man, hold my beer for a second…” is NOT a ND.

    Like most things in law, it depends on the facts and circumstances.

  22. To sum this up:

    There is just too large of a gray area to answer this question with a simple, black-and-white, yes or no answer.

  23. I’m going to take a contrarian view of NDs. Even assuming no one was injured or property was damaged, yes, I think they should be charged with a misdemeanor.

    A drunk driver can (and should) be arrested even though he doesn’t mow down a bicyclist or crashes into a mailbox.

    A driver or gun owner has to be responsible for the care and safety of the implement he is wielding.

  24. If I was the one pushing my newborn child in a cart while shopping and a bullet whizzed by the baby and hit me, I would MOST disturbed and upset. Probably to the point that I would be arrested for beating the nit wit senseless. I pretty much hold to the idea that there are no accidents with firearms, just carelessness, and if a person is careless enough to not buy a proper safe holster, careless to the point that they are dropping their gun on the floor and having it go bang, careless enough to not store guns safely away from their kids, then they are responseable for what happens. Punishment should be according to how bad the nit wit screwed up.

  25. Would you tend to blame the gun owner if his bullet entered the baby the woman was carrying? Why oh why are any of you equating this with a car accident? This is a much higher standard. This should NEVER happen.

    • People pushing their kids around in strollers, etc., should be required to post “Baby on Board” placards. For the children.

  26. All this talk comparing guns and cars is making mandatory auto insurance laws rather terrifying.

  27. Opens up a broader question – should there be required training for conceal carry like Illinois has throughout the rest of the country and yes I think you should be sited (not necessarily arrested) for a ND. Gun ownership is a responsibility and each time another gun owner doesn’t take it seriously gives the grabbers more ammunition to take away my right. I view it that I’m not only responsible for those around me when I have a loaded firearm but I’m also responsible to help protect everyone else’s gun rights by being a responsible gun owner.

  28. Hey, it’s the Tex shooting himself with the 1911 video…

    Yeah, my favorite part is around the 1:02 mark when you can really see the motion “hydrostatic shock” from the .45 ACP take place.

    For those of you who haven’t seen the video, the “hydrostatic shock” part is where he flinches, calmly sets the gun down, and walks away cursing.

    Man, he’s lucky to still have a leg. Devastating stuff.

    • I get a kick outta his statement ” my training kicked in” , musta been trained to place his gun on the ground when he got shot. Not sound gunfight training.

  29. The overriding concept here is common law: if there is no victim, there is no crime. Like another poster said, “no harm, no foul”.

    Police and prosecutors should treat unintentional and negligent shots from firearms the same way they would treat unintentional and negligent events from any other cause.

    If you are trying out a new golf club in a sporting goods store and clobber someone in the process, you are responsible for restitution, medical expenses, pain and suffering, and (if appropriate) criminal charges. If you swing the golf club and no one is injured, there is no crime. I view firearms the same way.

    • That doesnt work because a golf club that is swung in a sotre is being used exactly as intended, assuming no one is hurt of course.

      A negligent discharge implies the gun was not used as intended, meaning an appropriate analogy is that of a car accident as previously mentioned. You cant take it so far as saying ND is the same using a fork the wrong way and no one is arrested for that.

      Car acidents are treated case by case, as should ND. The car accident is viewed in terms of injury to others, property damage, location and level of negligence or risk (tapping your bumper in a parking lot vs. doing 120 mph on a side street), intoxication obviously, outside factors (weather), and a few other factors. So should negligent discharges.

      ND on your property, far from the public, with no injury, and maybe some damage to your own workshed or barn…no need for any police involvement.

      Standing in a grocery store, surrounded by others, without a proper holster, and a ND occurs should have some ramifications even if there is no property damage or injury. Not 2 years in jail, but some safety course requirements, perhaps a review of your license in light of other past events, perhaps afine, just like you would a drivers license.

      If you want guns to be given mainstream acceptance there needs to be some rationality applied on both sides. Guns are not nuclear weapons. Nor are they forks.

      • Okay, so instead of a golf club a person swings a piece of galvanized water pipe like a baseball bat in a hardware store. If the person who swings the pipe harms someone, Mr. Baseball is responsible for restitution, pain and suffering, and possible criminal charges. If the person who swings the pipe in the hardware store does not harm anyone or anything, they have not committed a crime.

        Caveat: I am referring to negligence. I am not referring to a person who swings a pipe at someone with the intention of harming them and happened to miss.

    • So if someone breaks into your house, without actually damaging anything (say they pick the lock), spends the day rifling through your wife’s unmentionables drawer and trying things on, as long as he leaves without stealing or damaging anything and you never find out about it, you’re cool with that? It would ok with you if later on he brags about the break in to someone else, who turns him in, if the police were to say “Well, the homeowner never filed a report, so there must be no harm, so no foul. Go ahead and let him go, boys!”

      What about if there is a victim, but the victim doesn’t regard themselves as a victim, as with many domestic battery cases? Do we then just wash our hands of it and say it’s a private matter?

      • Jonathan,

        If someone breaks into my home, I am a victim plain and simple because the intruder violated my sacred space. The intruder has indeed harmed me whether I realize it or not. Since there is harm, there is a “foul”.

        But more importantly, the intruder in your scenario intentionally violated me. The topic at hand is negligence without malice aforethought, not intentional harm.

  30. Negligent discharges where someone gets hurt should be prosecuted but if not, then no. If something is destroyed by the discharge, then they should be prosecuted under destruction of property.

  31. In the motorcycle crowd, people are always saying “you’ve either gone down or you’re about to go down,” implying that crashes are inevitable. I suppose there’s some truth to that, but can the same be said about negligent discharges? I’ve heard people say that sooner or later, they happen to everyone. I don’t want to believe that. Surely there must be folks who go their whole lives without firing off unintended rounds.

  32. People keep using the auto accident analogy here. In an auto accident if the person is doing something illegal like driving ubder the influence, doesn’t have license, registration, insurance, the car is stolen or they were found to be aggressive and therefore caused the accident yes they get arrested. The same should be true for negligent discharge. If a driver displays repeated violations they have their license suspended and they have to take driver’s ed classes. Again, the same burden should be put upon a person carrying a gun. If a driver kills someone in an accident they kay not be prosecuted but they sure as hell will be sued, again apply it to carrying.

  33. People keep using the auto accident analogy here. In an auto accident if the person is doing something illegal like driving ubder the influence, doesn’t have license, registration, insurance, the car is stolen or they were found to be aggressive and therefore caused the accident yes they get arrested. The same should be true for negligent discharge. If a driver displays repeated violations they have their license suspended and they have to take driver’s ed classes. Again, the same burden should be put upon a person carrying a gun. If a driver kills someone in an accident they kay not be prosecuted but they sure as hell will be sued, again apply it to carrying.

  34. I had a buddy that had a ND once, back when I was in the Army, on an exercise, with a rifle loaded with blanks and a BFA. The punishment was quick, severe and to the point… I’ve been out of the military for almost 15 years now and can happily say that I’ve never had an ND in my life. Learned my lesson by proxy.

    To that point, there are areas of the country that aggressively prosecute ND. Chicago is a great example, anything they can do to take away someone’s right to bear arms is on the table. They charge with felony reckless discharge of a firearm. if convicted, you loose your 2nd amendment rights. Unlike gang bangers, they won’t let you plea this down either. The ASAs is out to make an example of anyone they can get there hands on. It’s an area is rife for abuse.

    I’d say treat it like any other negligent damage or injury. That’s what it is, negligent damage or injury.

  35. They used to call them Accidental Discharges (AD). The more accurate and modern descriptor is Negligent Discharge (ND). Today I was reading about an AD/ND in a police station prior to shift change. No one was hurt. No disciplinary action taken. If they cannot/will not discipline themselves they shouldnt be permitted to discipline the public!

    On another note the firearm in question was a Glock and that writer alluded to lots of NDs with that weapons design.

  36. I agree with Ralph – again. I don’t want to prosecute someone who has not injured anyone, or done anything in a criminally negligent manner. If you hurt yourself and / or damage your own property, then punishment has already been served. If, on the other hand, your criminal negligence is the proximate cause if an injury or death, than prosecution is appropriate.

    My father in law negligently fired a Taser which belonged to someone else. I must also mention that it wasn’t in my presence, because our department technically treats negligent discharges the same with a Taser or handgun. This was a non-departmental weapon, and was not registered to me. He fired prongs into the carpet, which were easily removed. The replacement cartridge pair ran $49 plus shipping and handling. Lesson learned.

    The same standard should apply to police. We’ve had three guys written up in our office, including a two day suspension without pay, for firing Tasers into the ceiling. That was over the period of about 7 years. There were zero firearm NDs. One guy missed so badly firing over the hood of a patrol car that he hit the spotlight on the cruiser. He got written up and suspended as well. That’s some truly crappy shooting and you ought to get written up for it.

  37. The responsibility of safely handling a gun is entirely and inextricably within the purview of its operator. Not amount of legislation is ever going to force people into acting responsibly, only punish them if they don’t. Further, if no one else was harmed with the negligent discharge, the focus should be entirely on that specific person to begin with. It is not, has never been, and is never going to be an indictment of anyone or anything else.

    End of.

  38. I thought I had already replied…
    Oh well, here I go anyway.
    If the negligent discharge harms no-one, then no chase. If someone is injured, then prosecute. Otherwise charging someone shouldn’t be an option.

  39. This incident occurred in my community. I shop at that Walmart with my family and I always conceal carry when I do. I simply CAN NOT fathom how any “person of the gun” with an IQ greater than the number of moms at a MDA rally could do this. It is pure, unfettered negligence and the damage done by this incident goes far beyond the flesh wound on that woman’s arm. That negligently discharged .22 might as well have been a Mk-19 being unleashed on an orphanage filled with kids and puppies once Shannon Watts gets her hands ahold of the story. People won’t comprehend how much of a rarity this type of incident is and they will never understand how enraged us gun owners are by this ballistic anomaly. Having said that, now I’ll get off my self righteous soap box and say that I don’t believe it warrants criminal charges. I do think it should be pursued in civil court.

    • Totally agree. Not a criminal case, but he will be buried in the civil suit that will come. Surely the lady will receive a thousand calls from attorneys telling her why she needs to bring a civil suit. He’s toast.

  40. The automobile examples are invalid on the face because every negligent discharge can be fatal, while not every automobile collision can be fatal. Backing into a car at 5 mph in a parking lot is not the same as discharging a projectile at 1,100 fps. If you insist, though, consider the comparisons valid, but understand that automobile collisions span a wider range of circumstances and potential outcomes than do negligent discharges. Negligent discharges occupy a more narrow segment of that span and start out toward the higher end of it, as well. Hence, the penalties associated with negligent discharges do overlap with those for collisions, but they start out at a higher placement because the underlying action starts out at a higher placement.

  41. This incident occurred in my community. I shop at that Walmart with my family and I always conceal carry when I do. I simply CAN NOT fathom how any “person of the gun” with an IQ greater than the number of moms at a MDA rally could do this. It is pure, unfettered negligence and the damage done by this incident goes far beyond the flesh wound on that woman’s arm. That negligently discharged .22 might as well have been a Mk-19 being unleashed on an orphanage filled with kids and puppies once Shannon Watts gets her hands ahold of it. The fence straddler on the issue of gun safety might be nudged into the paranoid pasture of hoplophobia after reading MDA’s account of this very rare occurrence that is a ballistic anomaly. I’m not sure if I’m more upset by this idiotic ND or the fact that all the people that will listen to Voldemort describe it on major cable news shows won’t comprehend both how rare it is and how upsetting it is to our pro2A community when these preventable incidents do ( very seldom ) occur. Having said all that, I’ll now get off my self righteous soap box and state that I don’t believe this dangerous dolt deserves criminal charges. I do however think he should be receiving some civil charges. Anybody know if Judge Judy is pro-gun?

  42. This incident occurred in my community. I shop at that Walmart with my family and I always conceal carry when I do. I simply CAN NOT fathom how any “person of the gun” with an IQ greater than the number of moms at a MDA rally could do this. It is pure, unfettered negligence and the damage done by this incident goes far beyond the flesh wound on that woman’s arm. That negligently discharged .22 might as well have been a Mk-19 being unleashed on an orphanage filled with kids and puppies once Shannon Watts gets her hands ahold of it. The fence straddler on the issue of gun safety might be nudged into the paranoid pasture of hoplophobia after reading MDA’s account of this very rare occurrence that is a ballistic anomaly. I’m not sure if I’m more upset by this idiotic ND or the fact that all the people that will listen to Voldemort describe it on major cable news shows won’t comprehend both how rare it is and how upsetting it is to our pro2A community when these preventable incidents do ( very seldom ) occur. Having said all that, I’ll now get off my self righteous soap box and state that I don’t believe this dangerous dolt deserves criminal charges. I do however think he should be receiving some civil charges. Anybody know if Judge Judy is pro-gun?

  43. If they are so willing to punish law abiding citizens for an ND they should apply the same punishment equally to law enforcement officers otherwise it is an equal protection violation making two classes of citizen the “2nd class citizen” and the “LEO elite citizen”

  44. I think if you ND while carrying in public, your carry permit should be revoked. Whether you should be charged with a crime depends on the circumstances. There are plenty of “victimless” crimes, so I don’t see bodily injury as the determining factor. The drunk driving analogy someone put up earlier is a good one. Merely exposing others to an unreasonable risk of harm is often a crime.

  45. This incident occurred in my community. I shop at that Walmart with my family and I always conceal carry when I do. I simply CAN NOT fathom how any “person of the gun” with an IQ greater than the number of moms at a MDA rally could do this. It is pure, unfettered negligence and the damage done by this incident goes far beyond the flesh wound on that woman’s arm. That negligently discharged .22 might as well have been a Mk-19 being unleashed on an orphanage filled with kids and puppies once Shannon Watts gets her hands ahold of it. The fence straddler on the issue of gun safety might be nudged into the paranoid pasture of hoplophobia after reading MDA’s account of this very rare occurrence that is a ballistic anomaly. I’m not sure if I’m more upset by this idiotic ND or the fact that all the people that will listen to Voldemort describe it on major cable news shows won’t comprehend both how rare it is and how upsetting it is to our pro2A community when these preventable incidents do ( very seldom ) occur. Having said all that, I’ll now get off my self righteous soap box and state that I don’t believe this dangerous dolt deserves criminal charges. I do however think he should be receiving some civil charges. Anybody know if Judge Judy is pro-gun?

  46. When there is negligence, then you should be held civilly liable for any damages. Whether there should be any criminal liability….that depends on the damage, the grossness of the negligence and the circumstances.

    It seems to me that is there is gross negligence, then even if no one is hurt there should be cuffs and charges (no victim, no crime is NOT a maxim of common law, nor should it be, since the actions inherently endanger others even if in this instance they did not)

    There is a difference between an improper holster system though and say pulling it out to show someone and pointing it around.

    I would think common sense and current law would suffice, but sadly probably not on the former?

  47. My question is this. Why the hell would anybody post video of themselves blowing a round through their porcine leg for _ALL_ the world to guffaw at? People just gotta have their fifteen minutes I guess, no matter how ugly.

  48. There are NO accidental discharges only negligent discharges. If another person is hurt then yes they must be charged.

  49. A good lawyer could argue that the gun discharging itself after falling on the ground could constitute a defect which could likely cause the manufacturer to be held responsible for damage caused by said defect.

  50. The badgemonkeys face no consequences if their gun “accidentally” goes off….even if the round strikes someone…or KILLS someone. What’s good for the goose etc. so NO if it’s kosher for the boys in blue to
    squeeze off an errant round now and then the DA and his minions need to leave the rest of us alone also.

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