Perhaps one of the most embarrassing (and dangerous) avoidable situation for an officer to have is a negligent discharge (ND) of their firearm. The situation is an immediate announcement of the failure of an officer to follow safety protocols, and in some cases the result of the (ND) is far more tragic than humiliation and discipline to the officer. Recent examples of this abound.
Take for example the recent case with a BART Transit Authority officer who inadvertently discharged his sidearm and killed a suspect that was laying prone on a very busy train platform. [Ed. note: You can read more on the specific incident here. The Force Science Institute gives a very good presentation of the facts immediately surrounding the shooting.]
Or how about the recent New York City Transit Officer who inadvertently discharged his sidearm as he was attempting to holster it to help arrest a theft suspect. That round hit the suspect in the leg.
And how many senseless law enforcement deaths have occurred from the failure to secure live weapons during training, and one officer ends up shooting and killing another officer?
These situations must end, and perhaps the only way to fully address the situation is to ensure that we view each situation individually for what it is. In some circumstances that will absolutely place the spotlight on the officer’s failure to follow safety protocols. However, in other situations the officer could be completely exonerated as a more mechanical reason for discharge is discovered.
THE POWER OF WORDS
The power of words cannot be taken lightly. Indeed, the English language is full of alternative words to help clarify the author’s or speaker’s original intent, because the original word opens the door to interpretation. As officers we often use humor to overcome tragedy. In the case of an officer who has suffered an unintentional discharge, the manner of response from fellow officers can likely have long-lasting effects – positive or negative.
Perhaps one of the most famous literary quotes illustrates this importance in classic brevity, “the pen is mightier than the sword” (Edward Bulwer-Lytton, for the play Richelieu, 1839). This was a similar idea that was penned by Shakespeare in his play, Hamlet, 1602, when he wrote, “many wearing rapiers (thin swords) are afraid of goose-quills (writing pens) and dare scarce come hither”.
In other words, we can sometimes do more damage with our words, than with the weapons we carry. To this extent I wanted to post this article and discuss the use of terminology in relation to one of the worst situations to confront an officer.
NEGLIGENT vs. ACCIDENTAL DISCHARGE
Some in the law enforcement community have interchanged the terms negligent discharge (ND) with an accidental discharge (AD). There are some places in the country that specifically use “accidental” discharge, regardless of the circumstances, in a feeble attempt to minimize culpability. Yet a closer examination into the power of the words, I believe, causes a need to understand that these two situations are entirely different. And the career of an officer may be put into jeopardy if the investigation is handled in a one-size fits all approach.
I understand how some instructors or administrators want to place all of the fault on an officer – the firearm is an inanimate object, it didn’t shoot itself, right. However, I do believe that their are rare instances where a weapon malfunction, or another unforeseen circumstance can cause a discharge. For example, a firearm could discharge due to manufacturing defect.
That discharge is not the result of any negligence, and should not be classified as such. In those rare situations extra caution should be used in how we as fellow officers respond to the officer who happened to be holding the weapon that discharged.
I provide these definitions as only an example of how the two situations can be distinguished and more properly characterized.
Negligent Discharge – a discharge of an officer’s firearm, whether intentional or not, that was primarily caused by the officer’s failure to follow established safety procedures or legal justifications for deadly force.
Accidental Discharge – an unintentional discharge of an officer’s firearm that was not caused by any negligence or failure to follow established safety procedures.
Wrongly placing blame on an officer could have long-term negative effects, just as not holding an officer accountable for an obvious error could create a pathway to disaster. How these situations are classified can have long-reaching effects within a department. If an officer gets screwed over because of a mechanical failure the rest of the officers lose faith in the fairness of the investigation. Now they have to fear a true accident regardless of their efforts at safety. If an officer is not held accountable for an obvious error, the rest of the officers lose faith in supervision and the offending officer. Now the officers have to fear what the offending officer may do on the next call they’re on together.
A CRITICAL EXAMINATION
Let’s take a look at the examples I’ve provided above. In the first example a Bay area Transit officer was assisting in the arrest of a suspect at a train station. Without any observable justification to use deadly force, the officer discharges his weapon and tragically kills the suspect. In this case the only reasonable conclusion is that the officer violated safety rules causing the discharge. This one goes down as a Negligent Discharge.
In the second example the New York City Transit officer was attempting to assist another officer in handcuffing a suspect they had chased down. Again, the suspect was on the ground, and there is no report that the suspect was fighting with the officers. In an attempt to holster his weapon, the officer’s pistol discharges and strikes the subject in the leg. The investigation continues in this one so more details may come out to help form a conclusion. However, I think there is enough here to at least contemplate the two most likely hypothesis: one supporting accidental and one supporting negligent.
As the officer was placing the sidearm into his holster something got caught up on the trigger causing the discharge. This could have been part of the holster, part of his uniform, or another piece of equipment on his duty belt. If any of these situations occurred, there was no specific violation of safety rules by the officer. As such, this situation could reasonably be classified as an Accidental Discharge.
The potential for this occurrence is much more likely with SWAT officers as their heavy vests covered with pouches and accessories provides an abundance of opportunities for something to get caught in a trigger guard causing a discharge. Detectives also have a higher risk because their holsters and equipment are often much more loose fitting than a traditional duty belt.
Under many circumstances this could reasonably be classified as an Accidental Discharge. A proper investigation could lead to changes in how equipment is carried to prevent further problems.
If the officer had his finger on the trigger that is a violation of the safety rules and this would be a Negligent Discharge. At the time of discharge there was no justification for deadly force, and in fact the officer was putting his sidearm away.
Finally, the case of the SWAT officer who shot his partner in the back. In this case the officers had left training to get some drinks, and upon return were not safety checked before entering the training area. The deceased officer had never been struck with a Simunition round and asked to be shot so he could know what it felt like. The shooting officer retrieved his live weapon and fired, killing the other officer.
We here at Bluesheepdog.com have repeatedly expounded upon the concept of officer safety, and in particular how officers handle and use their firearms. In this case there was a failure of the instructor, a failure of the safety officer (we are all safety officers), and a failure of the officer who fired the shot. The result is a dead officer, an officer whose career is ruined (the shooter), and an entire department and several families crippled by a senseless death. There is no other way to look at this example then to call it for what it was – a Negligent Discharge.
CONCLUSION
As law enforcement professionals we must hold ourselves to the highest standards. In many cases of an inadvertent discharge there was a failure to follow safety protocols. In those events we are left with no other choice then to call it for what it was – a Negligent Discharge.
Understandably it will have consequences for the offending officer, but it has to be that way. We must protect other officers, the public, and the welfare of the entire Department from future disaster. As we’ve seen, a negligent discharge that injures or kills, also ruins careers and effects the entire department when hefty settlements are paid out to victims. This does not take into account the emotional turmoil for the victims and involved officers.
On the other hand, officers who followed safety protocols and merely suffered a discharge due to a mechanical failure, or an inadvertent foreign object entering the trigger well, should be afforded the exoneration that comes with an entirely different finding – an Accidental Discharge.
Words have meanings. And words should not be used lightly. I hope I’ve made an argument that a negligent discharge is completely different than an accidental discharge. Both situations are serious, and the investigation into both must be thorough. However, the ultimate positive outcome may rest on how we as the law enforcement community respond to the officers who find themselves in these situations (good or bad).
About Aaron
Aaron is a sergeant with a midwestern police department, where he serves as a trainer, supervisor and SWAT sniper. In addition to his broad tactical knowledge, Aaron has experience in DUI, DRE and undercover narcotics investigations.
Aaron, I have given you some grief in the past about a couple of articles… but I really liked this one! Good Work!
Thanks Ron! And your grief always generates great discussion, so you’re welcome to post anytime.
I could argue that an object entering the trigger gaurd and depressing it was caused by a person’s negligence of the clearance around the weapon. I’ve never unintentionally discharged however EVERY situation I’ve heard from buddies or aquaintences, I called it an ND.
One of the very few cases I would use the term AD would be a manufacturing defect perhaps causing a discharge…so next to never.
Disclaimer: I’m not an LEO so feel free to tell me to GTFO.
Brandon,
You do not need to be a law enforcement officer to participate here. We are all on the same side, and everyone’s opinion is welcome. We just like to keep things civil. Thanks for stopping by.
-Richard
Brandon,
Thanks for your comments, they are greatly appreciated. I agree with you that in most cases an unintentional discharge will have to be classified as an ND. My article mentions the “rare” circumstances where a mechanical defect or a foreign object entering the trigger guard causing discharge could be reasonably classified as AD.
One example would be the problem that some Remington 700′s suffered from, and has been mentioned on internet forums. As the shooter would disengage the safety, the rifle would fire – without the shooter being on the trigger. This was a very touchy subject for a very popular rifle.
Google – “Remington 700 accidental discharge problems” for a list of sources on that one.
Also not an LEO, but have been carrying concealed for a decade and a half:
I think “negligence of the clearance around the weapon” is way too strong a standard. How can one manage that when one has to holster while keeping their eyes on something else, or when there’s little light? Hmmm, I suppose you could use your other hand to sweep the holster area, but that still sounds iffy.
I like the advice of Massad Ayoob from his LFI safety video (highly recommended in general): keep your thumb on the hammer while holstering. If it’s single action, in front so it can catch the drop of the hammer, otherwise in back so you can feel the hammer rising as the trigger is engaged.
Unfortunately this can’t help officers in e.g. the NYPD where they are mandated to use an internal striker fired handgun; Glocks in their case, and obviously their department’s heavy “New York trigger” modification is not a complete solution to the problem.
Great comments Harold. Massad’s videos are always helpful and very informative. Your suggestions are good for the firearms that fit. For striker-fired handguns like the Glock, it requires the shooter to be that much more aware of what is going on.
ome handguns, like the older S&W semi-autos, had a hammer block/hammer drop safety. When the safety was engaged the hammer would be dropped, but a steel block would simultaneously move in front of the firing pin so an ND could not happen.
You mention the “New York trigger”. Having gone to the Glock Armorer course, I can attest that the trigger pull is set ridiculously high. Unfortunately, that can only tend to make things lean more towards an ND rather than an AD for those officers.
Just have to be obnoxious as an attorney who regularly and, hopefully, always responsibly carries. I took Massad’s 40 hour class earlier this year and it was great in every regard. If those who thought all gun owners were irresponsible nuts sat through something like this and realized the gravity we all place on our handling and ownership of firearms, I think they would be surprised, and perhaps their minds changed.
Anyway, I just take issue with “accidental” being different than “negligent.” Accident in both English and legal terms means it was not intended. It does not mean it was or wasn’t negligent. So in essence, every “ND” is also an “AD”, but every “AD” is not necessarily an “ND.” Except, in these particular situations, given the gun safety rules that should always be followed, it is, as noted above, almost impossible to have a an “Accidental Discharge”, especially any that results in physical harm, that is not also a “Negligent Discharge.”
If a gun firing is NOT an “Accidental Discharge” then it is intentional. So it was either a justified shooting, safe and appropriate target practice, or some variation of murder or attempted murder.
Craig you make some sound points and your thoughts are very much appreciated. I like the concept that you make about every “ND” being and “AD”, but not every “AD” is an “ND”. I agree.
Part of the focus of this article is the differing response that is found throughout law enforcement in regards to these situations. Some areas want to file everything (outside of a bullet striking a person) as “accidental”. On the other hand, some areas want to place everything as “negligent” regardless of if it can be shown that a malfunction or legitimate interference caused the discharge.
I disagree with both of those approaches, and am instead advocating the reasonable approach to truly investigate these situations and then handle them appropriately.
Aaron