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There is an interesting case in Wisconsin in which a concealed carry weapon license (CCW) holder has been charged with “negligent operation or handling of a dangerous weapon.” From jsonline: “According to the criminal complaint, Marvin W. Jackson, 34, was shopping in the Burlington Coat Factory at 3700 Durand Ave. After he took of his jacket and laid it on a rack while he tried on another, his female companion picked up Jackson’s jacket and laid it over her arm because he had forgotten it on a rack earlier. But as she did, Jacson’s silver .38 caliber two-shot derringer fell out, hit the ground and fired a shot that pierced three sweatshirts before lodging in the metal display rack. The couple quickly left the store.” Just one problem . . .

Jackson was not handling or operating the derringer when the negligent discharge occurred. His companion picked up the coat that had the pistol in the pocket, shifted its position, the pistol fell out and discharged upon hitting the floor.  There was some minor property damage, but no one was injured.

To claim that Jackson was negligently handling or operating the derringer, you have to make the logical leap that the act of negligent handling or operation was placing the derringer in the coat pocket. Or perhaps allowing anyone else to pick up the coat. Here is the actual Wisconsin statute:

941.20  Endangering safety by use of dangerous weapon.

(1) Whoever does any of the following is guilty of a Class A misdemeanor:

(a) Endangers another’s safety by the negligent operation or handling of a dangerous weapon;

There is an obvious cautionary lesson here, but I think it has more to do with the choice of pistol rather than placing one in a pocket. A derringer that will fire when dropped is of an obsolete design. There are many better options available today. On the other hand, not everyone can afford to buy the most modern weapons. Firearms Instructor on makes some cogent observations on the wording of the law:

a) Endangers another’s safety by the negligent operation or handling of a dangerous weapon. One could argue that here was no handling or operation of the weapon. He didn’t handle it nor did he operate it. I think it is a stretch to say by taking off his coat he was operating or handling it.

Clearly, there is a case for civil damages here. Three hoodies were holed. I think that Jackson, his companion, or both should pay for the hoodies and any necessary repairs to the display rack. Perhaps some civil fine would be in order, too. When a Milwaukee police sergeant had an accidental discharge in which his hand was on the pistol (almost certainly on the trigger), he plead guilty to disorderly conduct and had to pay a $1,000 fine. And in that case a minor injury resulted.

From jsonline, a year ago:

Edwards was in line at Auntie Anne’s pretzel shop on Nov. 2 when he reached into his back pocket for his wallet. As he did, his duty issue .40-caliber Smith & Wesson slid out of his waistband and down his pants. As he reached for the weapon, it went off, blowing a hole through his pants. The gun was not in a holster and did not have a safety, the complaint says.

A woman standing nearby heard a loud bang and felt a stinging sensation on her leg, where she suffered a welt, the complaint says.

There is almost no case for negligent operation or handling here. The logical contortions that the prosecution has to go through to prove negligence are two and three times removed. It pushes the definition of “handling” to extremes that essentially changes the meaning of “handling and operation” to storage. It’s not a big step from there to charging gun owners with negligence if their gun is stolen and used in a crime. Jackson’s attorney makes the obvious case:

Jackson’s lawyer argued his client is not to blame.

“It was not Mr. Jackson that was handling the weapon. It was actually Miss *** that was handling the weapon,” attorney Helmi Hamad said.

I would argue that Miss *** was handling the coat, and not the pistol. She may not have even known the gun was in the jacket. It will be interesting to see if the prosecutor extends the same deal to a black man with an inexpensive gun as it did to a police officer with a service pistol, who was more clearly at fault.

As for leaving the scene, did Marvin Jackson and his companion act responsibly? Maybe, maybe not. Firearms Instructor at opencarry makes a plausible case:

 As the police might over react to this a man with a gun call shot being fired and you might end up on the wrong end of police pointing guns at you. Who could be trigger happy, one could very well get killed for a unintentional discharge. It could very well be smart to leave.

One would not want to be gun down like the Costco shopper.

Jackson and his companion turned themselves in when it became clear that there was a police investigation.

I suspect that Marvin Jackson will end up paying a fine. The judge required Jackson to “not possess any firearms” as a condition of setting bail. That suggests that the judge has some negative bias against the ownership of firearms. Of course, he may not be the same judge who hears the trial.

Too bad Marvin Jackson didn’t spend some of the money that he will have to use for his defense to obtain a more modern firearm to start with. When I read about cases like this, I think: “There but for the grace of God go I.” No one is perfect. Stuff happens. The fact that such incidents are exceedingly rare is a tribute to the responsibility of the vast majority of gun owners.

©2013 by Dean Weingarten: Permission to share is granted when this notice is included.

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    • it can if the hammer is resting on the shell. My take is if we as a community exercise our right to carry ‘arms’ then we are responsible for those arms even if it is an accident. If you accidently rear-end another car are you not ‘responsible’, does your insurance not pay (you get to pay higher premiums over the next 3 or so years). My wife carries a derringer, but the hammer rests in a notch between shells. you have to cock the hammer back to get the cylinder to rotate so a shell is under the hammer.

      There are holsters made for jackets. A gun is part of the financial investment, a proper fitting holster can be very expensive. but should hold your weapon even if some idiot tries to pick-pocket you. It should at least offer enough resistance to clue you into the fact that someone is trying to take your gun. Plus if you are going to keep one in the chamber…. you increase the risk and therefore should increase your ability to ensure that the weapon is secure and has the lowest possible chance of ‘accidently falling out’

      I bet this person spent very little time at the range if ever. your holster needs to be secure enough to hold onto the gun, but easy enough to get the gun out quickly if needed. Plus regularly handling your gun, besides taking it out of the cabinet and sticking it in your pocket, makes you more comfortable. Weekly/monthly trips to the range will identify errors in how you carry and equipment in a realitive safer place. Not just range time either. Dry firing at the house, or use of plastic dummy rounds will let you practice getting your gun out quickly, putting it into operation and squeezing off that first round. It will also identify times you are more likely to drop your gun. or get it hung on clothing etc…

  1. I would say they are absolutely right to charge the owner for criminal negligent handling.

    The owner of a firearm is responsible for the handling of said weapon by others in their party.Just because it’s not the shooting range doesn’t make it any less applicable.At NO time do I permit parties near me to handle my weapon even AT the darn range, to say nothing about the local clothing retailer.

    Those people darn near killed someone, and the ONLY reason were not talking about a dead person is chance.For that reason alone, the owner should be charged accordingly.

    • I am so happy to hear a reasonable voice weigh in on this. No doubt, the law does not have the best wording but this man allowed his firearm to be out of his possession which is rule number one. To me this is no different than keeping loaded firearms within easy access of children. Accidents happen and walking away from your loaded firearm should bear a penalty, regardless of injury.

    • All well and good, ST, except that Jackson didn’t let the woman handle his gun. She handled his coat, and she did so of her own volition — he never told her to do it. She dropped the gun, and it fired. And he’s arrested?

      • And what was the coat containing his weapon doing off his person?

        That’s akin to taking your holstered gun and leaving it on a counter.

        • @ST, you’ve laid out an excellent case for charging the owner with the crime of “negligently leaving his gun in his coat.” However, that’s not the charge. If he was my client, he’d walk.

        • He was charged, among other things, with negligent handling of a dangerous firearm. He left a dangerous firearm in an unattended coat in a store. Was he not handling it by leaving it there? Is “placing it unattended in a dangerous condition” not negligent handling in NY or MA? Is “handling” under NY or MA law a littoral holding it in his hand, as opposed to exercising physical control over the weapon as it is abandoned in a dangerous condition? I don’t believe it. Would it be any different if he left it on a shelf at a child care center as opposed a store with children in it? I’d rather be the prosecutor. You can defend all you want. I think you’d lose.

          I like Weingarten’s encompassing look at the matter. The guy was negligent. It is a simple case. Whether it was his woman or some twelve-year-old that moved his coat is of no consequence whatever.

      • Sooo if the guy removed his holstered 1911 left it on a shelf in a store and walked away he wouldn’t be responsible at all for someone picking it up without his permission and discharging the gun? He didn’t leave the GUN on the shelf, just the holster…. with a gun in it. And he didn’t tell the person who picked it up to do so did he?

        Clearly this man is responsible for his negligence.

        • I think it can be agreed that he is guilty of negligence in general, which resulted in property damage; however, he is not necessarily guilty of negligently handling of a firearm, which would be a separate charge. Should I negligently leave a brick where it can fall on your head and kill you, I am not necessarily guilty of involuntary manslaughter.

      • So if I take my holster off and set it on a chair at the store, a kid picks it up and shoots himself, I shouldnt be responsible?

    • A Negligent Discharge is NEVER a good thing. It is scary and dangerous and a very serious black eye for all POTG. However, this man did NOT negligently discharge his firearm. By its very definition a negligent discharge requires someone by their own negligent handling to cause the weapon to fire. I would say it would even be a stretch to call firing when dropped an ND. That would be one of the few cases where the firing could actually be classified as an Accidental Discharge.

      He did not mishandle or otherwise violate any of the four basic safety rules and thereby cause the weapon to discharge, so no ND. Nether did his companion. If there is any rule in that jurisdiction prohibiting him from placing his weapon away from his immediate control while in public, even with a CCW, that is the only charge I can see being brought against him. And as in traffic violations I think that proper penalty would be to spend a Saturday in a remedial gun safety class.

      • I think this is more of a “Stupid Discharge.”
        Stupid #1. Buying a cheap POS derringer. He’s lucky it didn’t SD sooner.
        Stupid #2. Carrying in his coat pocket unholstered. See #1.
        Stupid #3. Letting his GF handle his coat w/POS derringer in it.

        Another clear-cut case of “Stupid in Public.” Next…

  2. I had an FIE .38 derringer for a while. Absolutely unsafe to carry with both chambers loaded. I could very well see someone having an AD from dropping one.

    • Being a fan of “The Wild, Wild West” in my youth, I thought everyone knew that derringers were supposed to be in a mechanism underneath your shirt sleeve that would reach out and stick the gun in your hand at just the right moment. You know, like when you needed to shoot a metal dart with a cable attached so you and a damsel could escape the clutches of some criminal wacho.

  3. If you think that he shouldn’t be charged then his female companion can be charged with carrying a concealed weapon. Also what kind of responsible adult just walks away after an incident like this.

    • He was a fool for carrying the Derringer in his coat instead of on his body. He was a bigger fool for taking that jacket off (twice) and walking away from it. It could be reasonably argued that his girl friend/companion did not realize he was such a fool and therefore did not know the pistol was in the jacket. She may have been (briefly) carrying a concealed weapon, but there is no way to prove that she knew the weapon was in her possession at any time before it fell out of the jacket and fired.

    • What kind of adult just walks away after an incident like this? A man-child. With an entitlement attitude and no sense of responsibility.

  4. I’m curious about whether the defendant had the cross-bolt safety engaged on his derringer or whether he had the hammer down on a live round. If it’s the latter, the prosecutor might argue for negligence based on failure to take a basic safety precaution and carry the gun the way it’s intended to be carried.

    • I decline to allow ANY prosecutor to charge me with negligence based on their interpretation of basic firearm safety precautions. If that were the case I could be charged for carrying my Ruger SR9c, which has a Glock-style trigger safety AND a 1911 style thumb safety, if I decide not to use the thumb safety. The pistol is still every bit as safe as if I were carrying a Glock, but the prosecutor could argue I was not following the safety precautions provided by the manufacturer. That is a very scary concept.

      Safety is in how you handle the weapon, not the number of mechanical devices provided by the manufacturer. If we go down that road they will soon require us to carry with the trigger lock in place if one came with the pistol.

    • Yes, of course, lots of guns are designed to be drop-safe with the safety disengaged, or with no active safety whatsoever. (Revolvers and DAO pistols, anyone?) But single-action derringers, like the Cobra pictured in this post, aren’t.

      I’m not saying that the gun owner should be charged in this case. I’m just wondering exactly how the discharge happened and how that will affect the legal arguments.

  5. I’ll bet a dollar this case gets dropped.
    There was no culpable mental state, no intent, no willfulness.
    Good grief.
    I worry about this kind of thing. I just left my granddaughters “holiday” play, all the while, constantly aware of where GG was.
    Very good point Mr. Weingarten, about the purchase of a better gat would have likely been cheaper in the long run.

  6. I don’t care what he’s charged with or convicted of. I don’t want to go there simply because ANY convoluted involvement with cops, lawyers, clumsy girlfriends, and whatever else might happen is already worse than he deserves for three holed hoodies and a squirt of adrenalin.

  7. We’ve all had it drilled in our heads that you are responsible for where your gun is and where your bullets end up. Seems this man did not have a familiarity with firearms enough to realize that this was a bad idea, to leave his coat lying around with his firearm in the pocket.

    • And yet he at least had his companion following him around and policing up his jacket when he walked away. How many reports have we read about law enforcement officers leaving their pistols in washroom stalls or on movie theater seats? Didn’t we see a report recently about the amazing number of law enforcement weapons that are left lying about and the subsequent loss or theft of same?

      Everyone has the potential for a brain fart now and then. While I have never left my pistol lying about in public, I have on more than one occasion left it in the safe in the care when I had placed it there temporarily. This man deserves some sort of reprimand, as does anyone who leaves their weapon unattended in public, but since no one was harmed and the weapon was not lost I think remedial action should be sufficient to the offense.

      • Leaving your gun around and nothing bad happens- reprimand.

        I’d say placing an unsafe gun in an unsafe manner in an unsafe area and allowing it to be indirectly manipulated unsafely (as if there’s a choice with that manner of carry) deserves a bit more.

  8. The only issue here is with the gun owner and the store owner.
    No fine to be assessed, not forced lessons to take, nothing but the gun owner paying for the damages on the premises and moving along.

    I hope he takes a lesson from it, but that is as far as I would go.

  9. The gun certainly discharged through it’s owners negligence. However, if the wording of the law is such that it does not cover what happened, being that the firearm was not handled, then he should not be charged, and the law should be amended to cover such incidents.

    However if the language of the law is generic enough to cover what actually happened, yes he should be charged.

    • The gun didn’t discharge through its owner’s negligence.
      If anything if the company that manufactured the gun is around you might be able to get them on designing and selling a product that can fire without the actual accepted firing mechanism being used.

      Language of the law means you have to prove the owner held and operated the firearm in a negligent manner, he didn’t, in fact he didn’t have the weapon at all, his female was the one who picked up the coat in which the gun feel out and fired, not him.

      • He put a firearm without a trigger guard and without a safety in a pocket, outside of a holster (so far as we know at this point) where it fell out. I would consider myself negligent had I done that.

        • He can carry his weapon any way he would like.
          It might not be the best judgement but it isn’t a violation of any law that meets the legal requirements of negligence. Not in the slightest.

          He did not fire the weapon, he was not in possession of the weapon or the coat when it feel out and discharged.

          The only one I could think having a real criminal complient would be the female companion, in the event someone was struck, or the gun manufacturer/

  10. The real negligence was taking off his jacket and laying down when he had a weapon in it. One should keep one’s weapon under one’s direct control at all times.

    Those derringers are poor weapons. They can discharge when dropped. They are slow to fire, inaccurate, hold only two shots and weigh as much as an airweight Smith and Wesson 38. The S&W .38 holds 5 shots, will NOT discharge if dropped, is quick to fire yet safe to handle and is reasonably accurate.

  11. How can the prosecutor argue that Mr. Jackson endangered anyone? His firearm did not strike anyone. It fired and the bullet went through some shirts and lodged in a metal frame.

    According to the prosecutor’s standard, if a driver thought his car was in reverse but was actually in drive, then stepped on the gas pedal and crashed forward into a barrier, aaaaaannnnddd a pedestrian was standing 10 feet away, did the driver operate his vehicle (deadly weapon) negligently in a way that endangered anyone? Since there were no injuries, I find it very hard to prosecute someone.

    If you want to site someone for a civil infraction that involves a fine of, say, $500 for their firearm discharging in public unintentionally, I can go along with that. Beyond that is a witch hunt.

  12. It’s his gun, and it was in his jacket. It doesn’t matter that the woman picked it up, it’s his responsibility to ensure that his firearm is secure.

  13. I won’t even attempt to argue the legal nuances here, but from a practical perspective, there is no doubt in my mind he was being negligent. Discharging the firearm was just the last in a series of poor decisions:

    1. His choice of weapon was inappropriate to its use. If you can’t afford a drop-safe carry gun, then you can’t afford a carry gun.
    2. He (apparently) didn’t use a holster. That’s a poor decision with a modern weapon; with his derringer, it crosses into negligence.
    3. He took his jacket off and left it.

    • “If you can’t afford a drop-safe carry gun, then you can’t afford a carry gun.”

      Meh. That’s not true. You DO need to be conscientious of what you’re doing though. He took a risk (knowingly or unknowingly) and it bit him in the butt. Luckily only figuratively. He is definitely responsible for his lack of judgement here though. I don’t think many would argue that.

    • I wholeheartedly disagree with points #1 & #2. To say that if you cannot afford a better weapon or holster, you should not be (allowed to be) carrying is to disenfranchise the poor of one of their basic rights. To say that you are responsible for your actions is more apt. I.E., if you choose to carry a not-drop-safe weapon in a pocket with no holster, you are 100% liable for any damage or injury that results. But, in a civil context, not a criminally negligent context.

  14. I think he should be charged with negligent discharge. It was HIS negligent handling that brought about the problem in the first place. The gun wasn’t holstered, and he left it unattended. There are holsters for every type of carry you can imagine. He is to blame in entirety.

  15. Wow.

    This comes down to whether the owner of a weapon is responsible for the results of every firing, regardless of circumstance.

    Saying “yes” to that sets a very dangerous precedent.

    Saying “no,” however, leads to the question of where the boundary line is.

    For me, here’s the key question: did the girlfriend know there was a gun in the coat? If she did, then the fault is on her – she knew she was handling a weapon, or its container. If she didn’t, it’s on the guy – it was his decision to go armed, and his negligence that left the gun in a situation which could have been reasonably foreseen as leading to a discharge, to wit, someone picking up the coat.

    He didn’t take “usual and customary” care, i.e. a half decent holster, so he could have had no reasonable expectation that the gun would have remained in the coat. Had he used a holster, I would call this a bona fide accident. He didn’t, so basically it’s on him for acting like a dumbass.

    • Even if she knew it was there, which might be why she picked it up in the first place, it could still be argued that it would be reasonable for her to expect that the firearm was secured in the coat and not just going to fall out, making it still his fault. Of course than they could argue that she was conceal carrying without a license (assuming she does not have one) though I really don’t like the idea of charging somebody that was trying fix a potentially dangerous situation. (take the same situation but instead the firearm never falls out of the pocket and discharges, should the woman be charged with carrying without a license)

  16. The. Burlington Coat Factory is a great place to pick up,hard up milf’s. If you got a job and a car that has no dents or rust, you’re like Bill Gates to most of the female customers.

  17. He was grossly negligent at least 3 different ways resulting in a discharge that was lucky not to kill someone. Lawyers can play games with the wording of the law and a court will sort that out. This guy and others like him are a threat to our rights in the court of public opinion. I have no problem with throwing the book at him.

  18. Under the “punish the dangerously stupid” provisions of many state codes (or at least the judicial glosses of such), he should be fined. The label attached to the fine hardly matters. Call it a summary offense. Fine him what it would have cost to buy a small pistol that actually has a trigger guard, and which is drop-safe. The legalities are fuzzy but his irresponsibility is clear. If the drop and fire had occurred in my living room, I’d have been enormously angry, even if it missed my other guests. If the shot grazed my mother-in-law, that might be an ameliorating fact, but only partially.

  19. I’m frankly surprised that there’s any disagreement at all on this one. Seems to me like this guy made, not one misjudgement, but several of them. If this is how he handles his gun on a day to day basis, it was probably a matter of time. People like this don’t do the rest of us any favors. But at least he stuck around and faced the mus… Oh, wait. He didn’t. Yeah, I have no qualms about this fella being taken to task, personally.

  20. I agree with him being charged. The weapon is his responsibility, whether it was his negligent handling that directly led to the discharge or, in this case, the weapon NOT being in his possession. I carry concealed all the time, I would never leave my firearm in a jacket or anything off my body. Period. Your gun discharges, it’s your a** on the line to take the responsibility for it. You don’t run away either, that to me was the 2nd indicator that Mr. Jackson makes bad decisions, the 1st being leaving it in his coat off his body and therefore out of his direct supervision. Negligence through and through. He’s just lucky nobody was killed or injured.

  21. I sometimes carry a Browing Baby 25 ACP caliber that is striker fired but unlike a Glock where the striker is moved rearward by the trigger mechanism then released to fire, the striker in this Browning is held rearward mechanically when the slide is operated to load a cartridge into the chamber until the trigger is pulled to release it. For safety reasons I carry it without a cartridge in the chamber since the design of this gun makes it plausible for a negligent discharge to occur.

  22. Last year at a mall in Silverdale. Washington a man dropped a .38 derringer on the floor of store. It discharged and damaged some merchandise. Local prosecutor said he would be charged with “aiming and discharging a firearm”. Later reduced to a minor charge and deferred prosecution.

  23. I’m surprised by how many here wish to see this man punished by the law for a ‘crime’ he clearly didn’t commit. His choice of weapon, carry method and the decision to leave it laying about are of course deplorable and inadvisable, however this is not what he is being charged for/with. To insist that he be punished for a ND that he clearly could not have caused (the weapon not being under his control at the time) because he made some poor but legal decisions leading up to the ND is to openly ask for prosecutorial overreach of the type that is almost universally (and for good reason) decried here as counter to the constitution (due process) and the cause of liberty.

    What is it about this event that has so deeply divided us and blurred our usually sharp focus on the liberty of the individual in opposition to the tyranny of the state?

    • “punished for a ND that he clearly could not have caused (the weapon not being under his control at the time)”
      Dude was out in public with a pistol that wasn’t drop-safe & had a round chambered to boot, then he left that accident waiting to happen un-holstered & unsecured in a coat draped over a clothes rack and you think he’s not guilty of negligence when the ND happened?
      I suppose you think a driver who parks his car on a hill & walks away with the vehicle in Neutral & no parking brake, with the wheels not turned towards the curb, should also be exempt from punishment when mayhem ensues since he wasn’t ‘operating the car’ at the time?
      By definition, carrying a gun entails accepting a higher level of risk of an accidental/negligent discharge than does not carrying. Smart people mitigate the risk by 1. not carrying unsafe antique guns, 2. always using a good holster, 3. always keeping the gun 100% under your control on your body. Dumbasses that violate all 3 rules tell it to the judge. I’ve got zero sympathy for this guy- makes the rest of us CC’ers look bad. They should hammer his tits- pour encourager les autres!

  24. +1 on that Navillus!!

    You are ultimately responsible for your firearm whether it’s on your person or in a coat pocket. The fact that Mr. Jackson fled the scene to escape prosecution and responsibility, proves that he is in fact, an irresponsible human being. This whole prosecutorial overreach is a null and void argument: Saying we can’t hold him responsible because of the precedent it would set for all gun owners is absurd and I find it very “Nanny State-ish”. Are we to hold his hand and tell him it’s not his fault the gun went off and seek judgement against the manufacturer of the jacket because they didn’t think about sewing in a firearm retention device into the pocket? Or is it the gun manufacturers fault for not making a ridiculously designed pocket pistol drop safe? The buck stops with him and though I don’t think he should serve time in county, I do believe he should be fined and charged with a misdemeanor.

    If I discharge my weapon out of any other reason than self defense with the city limits of my hometown, the police will be arriving shortly to investigate and when they find it was an ND , I’ll have to own up and face the music.

  25. Handguns being transported in an unsecure manner (i.e., not in a holster) are much more prone to being dropped. I’d say that would indicate negligence and thus negligent handling. Empirically proved by the fact that the weapon falls and fires unintentionally. QED. YMMV.

  26. One issue with the comparison to the Milwaukee officer who had the negligent discharge. The comparison is not quite applicable, because this incident did not happen in Milwaukee. Instead, it happened in Racine, a city 25 miles south of Milwaukee.

  27. The whole purpose of this charge is not to “serve justice”. It is to saddle the unfortunate citizen
    with a criminal charge that can be used later to revoke or deny a CCW permit and possibly to
    declare him unfit to own firearms. It is nothing but a backhanded and not very subtle attempt
    to deny this man his 2A rights.


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