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C0untZer0
December 12, 2011, 10:25 AM
.

Wis. cop charged after gun goes off at mall

http://www.policeone.com/Officer-Safety/articles/4810742-Wis-cop-charged-after-gun-goes-off-at-mall/

It was a 40cal S&W with "no safety" apparently - I'm guessing it was an M&P?


I'm convinced though that a holster of somekind is an absolute necesity - even pocket carry - they have pocket holsters, but I think a holster of somekind is necesary.

MLeake
December 12, 2011, 11:41 AM
I don't like carry without a holster, but still... Does Wisconsin law require holsters for carry by off-duty LE or CCW? Does Wisconsin law mandate safeties for semi-autos? If not, the charges seem to be BS.

Meanwhile, I would guess an M&P, but it could have been a P99, Sigma, 4066 DAO etc. Can't expect modern media to get gun details, though... Or explanations of applicable laws...

jimbob86
December 12, 2011, 11:55 AM
The.40-caliber Smith & Wesson was Edwards' duty weapon, according to Anne E. Schwartz, department spokeswoman.

What is the Milwaukie PD's duty weapon?

Don H
December 12, 2011, 12:12 PM
The law the sergeant was charged with violating:
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; or

(b) Operates or goes armed with a firearm while he or she is under the influence of an intoxicant; or

(bm) Operates or goes armed with a firearm while he or she has a detectable amount of a restricted controlled substance in his or her blood. A defendant has a defense to any action under this paragraph that is based on the defendant allegedly having a detectable amount of methamphetamine, gamma-hydroxybutyric acid, or delta-9-tetrahydrocannabinol in his or her blood, if he or she proves by a preponderance of the evidence that at the time of the incident or occurrence he or she had a valid prescription for methamphetamine or one of its metabolic precursors, gamma-hydroxybutyric acid, or delta-9-tetrahydrocannabinol.

(c) Except as provided in sub. (1m), intentionally points a firearm at or toward another.

(d) While on the lands of another discharges a firearm within 100 yards of any building devoted to human occupancy situated on and attached to the lands of another without the express permission of the owner or occupant of the building. "Building" as used in this paragraph does not include any tent, bus, truck, vehicle or similar portable unit.

(1m) 

(a) In this subsection:

1. "Ambulance" has the meaning given in s. 256.01 (1).

2. "Emergency medical technician" has the meaning given in s. 256.01 (5).

3. "First responder" has the meaning given in s. 256.01 (9).

(b) Whoever intentionally points a firearm at or towards a law enforcement officer, a fire fighter, an emergency medical technician, a first responder, an ambulance driver, or a commission warden who is acting in an official capacity and who the person knows or has reason to know is a law enforcement officer, a fire fighter, an emergency medical technician, a first responder, an ambulance driver, or a commission warden is guilty of a Class H felony.

(2) Whoever does any of the following is guilty of a Class G felony:

(a) Intentionally discharges a firearm into a vehicle or building under circumstances in which he or she should realize there might be a human being present therein; or

(b) Sets a spring gun.

(3) 

(a) Whoever intentionally discharges a firearm from a vehicle while on a highway, as defined in s. 340.01 (22), or on a vehicle parking lot that is open to the public under any of the following circumstances is guilty of a Class F felony:

1. The person discharges the firearm at or toward another.

2. The person discharges the firearm at or toward any building or other vehicle.

(b)

1.Paragraph (a) does not apply to any of the following who, in the line of duty, discharges a firearm from a vehicle:

a. A peace officer, except for a commission warden who is not a state-certified commission warden.

b. A member of the U.S. armed forces.

c. A member of the national guard.

2.Paragraph (a) does not apply to the holder of a permit under s. 29.193 (2) who is hunting from a standing motor vehicle, as defined in s. 29.001 (57), in accordance with s. 29.193 (2) (cr) 2.

(c) The state does not have to negate any exception under par. (b). Any party that claims that an exception under par. (b) is applicable has the burden of proving the exception by a preponderance of the evidence.

(d) The driver of the vehicle may be charged and convicted for a violation of par. (a) according to the criteria under s. 939.05.

(e) A person under par. (a) has a defense of privilege of self-defense or defense of others in accordance with s. 939.48.

History: 1977 c. 173; 1987 a. 399; 1989 a. 131; 1993 a. 94, 486; 1997 a. 248, 249; 1999 a. 32; 2001 a. 109; 2003 a. 97, 190; 2007 a. 11, 27, 130.

Judicial Council Note, 1988: The mental element of the offense under sub. (1) (a) is changed from reckless conduct to criminal negligence. See s. 939.25. If the defendant acts recklessly, the conduct is prohibited by s. 941.30. [Bill 191-S]

Pointing a firearm is not a lesser included offense of armed robbery and a defendant can be convicted of both. State v. Smith, 55 Wis. 2d 304, 198 N.W.2d 630 (1972).

A jury instruction that shooting "into" a building under sub. (2) (a) occurs when a bullet penetrates the building however slightly, conformed with common usage of the word and was not improper. State v. Grady, 175 Wis. 2d 553, 499 N.W.2d 285 (Ct. App. 1993).

Police officers do not have an absolute right to point their weapons, but privilege may be asserted as an affirmative defense. State v. Trentadue, 180 Wis. 2d 670, 510 N.W.2d 727 (Ct. App. 1993).

Although intentionally pointing a firearm at another constitutes a violation of this section, under s. 939.48 (1) a person is privileged to point a gun at another person in self-defense if the person reasonably believes that the threat of force is necessary to prevent or terminate what he or she reasonably believes to be an unlawful interference. State v. Watkins, 2002 WI 101, 255 Wis. 2d 265, 647 N.W.2d 244, 00-0064.

It looks like the question is going to be: " Was the sergeant guilty of "negligent operation or handling of a dangerous weapon"?

ATW525
December 12, 2011, 12:13 PM
I don't like carry without a holster, but still... Does Wisconsin law require holsters for carry by off-duty LE or CCW? Does Wisconsin law mandate safeties for semi-autos? If not, the charges seem to be BS.

Why would the charges be BS? He had a negligent discharge in a crowded shopping mall that caused injury to a bystander.

C0untZer0
December 12, 2011, 12:14 PM
I called the department and they said that they carry the S&W M&P.

I just want to contrast that with when I called University of Illinois Campus Police to inquire about a ND by one of their officers, and when I asked what their standard issue duty weapon was, they replied "We don't release that information to the public."

OK...

So anyway, it was an M&P.

kraigwy
December 12, 2011, 12:16 PM
I pocket carry my 642 without a holster. I tried ever way from Sunday to get it to fire (empty of course). Just don't see it. Not with a 642 anyway.

MLeake
December 12, 2011, 12:35 PM
ATW525, the "injury" was described as a welt.

The guy dropped a gun. That in itself isn't negligence. Question is whether WI law mandated the use of holsters or safeties. If yes, criminal charges might make sense. If no, then this should fall under accidents, with regard to criminal law.

That is not to say civil actions would be out of line.

ATW525
December 12, 2011, 01:06 PM
The guy dropped a gun. That in itself isn't negligence.

He had a responsibility to carry his firearm safely, and he was clearly negligent in carrying out that responsibility since he lost control of his weapon and discharged it in a crowded public space. "Ooopsies... my bad," doesn't cut it when you're dealing with deadly weapons. This loser count his blessings, because in this state he could have been looking at felony charges instead of a slap of a wrist.

K_Mac
December 12, 2011, 01:19 PM
ATW525, the "injury" was described as a welt.

The guy dropped a gun. That in itself isn't negligence. Question is whether WI law mandated the use of holsters or safeties. If yes, criminal charges might make sense. If no, then this should fall under accidents, with regard to criminal law.

That is not to say civil actions would be out of line.

Dropping a gun while at the range may not be negligence, although the range officer and the folks close to you may not agree. Dropping a weapon in a crowded mall is negligent by any standard. Carrying a weapon is a serious responsibility. When this sort of thing happens it makes the entire gun community look bad, and adds fuel to the fire of the anti-gun crowd.

A Milwaukee police sergeant whose gun went off inside Southridge Mall in Greendale on Nov. 2 was charged Thursday with endangering safety by use of a dangerous weapon, a misdemeanor.

He was responsible for the unintentional discharge of a dangerous weapon in a shopping mall! Whether he is a cop, banker, or NFL player if that is not "endangering safety" what is? Whether anyone was injured or not is completely irrelevant in my opinion. Tell the woman with the welt it is no big deal...

C0untZer0
December 12, 2011, 01:20 PM
I am not a big fan of the Glock-type "safe action" setup as being the only safety on an auto. That's why I think the grip safeties are a good idea on the XDs.

But anyway, I'm guessing the weapon slipped down his pants and when he tried to stop it from falling he snagged the trigger.

If the pistol had a manual safety that was engaged - probably it would have lessened the chance that it would have gone off, if it had a grip safety - probably it would have lessened the chance that it would have gone off, depending how the gun was grasped, but like I said, i'm guessing he just grabbed for it and his finger went into the trigger gaurd snagging the trigger.

As far as the legal technicalities, I guess lawyers and union reps can argue about that ad nauseum, but the fact is - he did discharge his weapon.

Bartholomew Roberts
December 12, 2011, 01:43 PM
This is a guy with 25yrs plus of LE experience and President of the Milwaukee Police Supervisors Association. How the hell could he not recognize the possible problems with carrying a safe-action pistol in his waistband with no holster? Is his judgment that bad or is it just his ignorance regarding how the pistol works that caused him to Plaxico himself?

Crazy88Fingers
December 12, 2011, 02:46 PM
^ Beat me to the Plaxico joke.

Anyway, he really should know better. And I'm sure the department pays him enough to buy a $20 IWB holster.

jimbob86
December 12, 2011, 02:58 PM
The guy dropped a gun. That in itself isn't negligence.

Carrying it in a manner in which the gun was not secured, and likely to fall is.

Dropping a gun and trying to catch it is foolish, if not neglignet.

I know that you do not Carry Plaxico style. You know you do not Carry Plaxico style. This guy was a Professional*, and he did not know you do not Carry Plaxico style?

Negligent.







*....but was he the only one, in this room, that he knew of, Professional enough.....

kraigwy
December 12, 2011, 02:58 PM
Reminds of a story.

Two off duty Anchorage cops were in the local credit union to negotiate a loan for a joint fishing boat gig.

One of them dropped his service revolver. He looked around sheepishly and with his foot, shoved it under the chair of his partner, Who pushed it back.

This went on, back and forth until the loan officer finely said. "that's enough, just pick up the damn thing so we can get back to business".

Probably nothing would have been said but the loan officer ratted out the two cops to every cop she ran across.

Peer pressure is pure he!!.

MLeake
December 12, 2011, 03:31 PM
People seem to be confusing de facto negligence with criminal or culpable negligence. Dropping a gun, and trying to catch said gun, is negligent in a sense. But how do you establish mens rea with regard to a poor reflex action?

Culpable negligence usually requires either utter recklessness, or else deliberate undertaking of actions that a reasonable person should know would be likely to result in harm.

A fair number of people, just based on numbers who post here, seem to think Mexican carry, and unholstered pocket carry, are just fine. It could be argued that a reasonable person might not see an obvious likelihood of harm from such practice. (IIRC, kraigwy pockets a snubby without a holster.)

So, unless Wisconsin mandates the use of holsters (as some states do) or safeties (also as some states do), then this guy may be a knucklehead, but that does not make him a criminal.

jimbob86
December 12, 2011, 03:34 PM
Culpable negligence usually requires either utter recklessness, or else deliberate undertaking of actions that a reasonable person should know would be likely to result in harm.


If he draws me on a jury, I know what my vote is.

Stupid should hurt, and if it hurts bystanders, it should hurt more.

K_Mac
December 12, 2011, 03:44 PM
People seem to be confusing de facto negligence with criminal or culpable negligence. Dropping a gun, and trying to catch said gun, is negligent in a sense. But how do you establish mens rea with regard to a poor reflex action?

Mens rea my foot.:p Endangering safety does not require criminal intent. Negligent is as negligent does.:rolleyes:

Edit: I think actus reus is the relevant statute.:D

Bartholomew Roberts
December 12, 2011, 04:12 PM
A fair number of people, just based on numbers who post here, seem to think Mexican carry, and unholstered pocket carry, are just fine.

I think you are conflating apples and oranges a bit. I haven't seen much support on this site for the idea that Mexican carrying a condition 1 "safe-action" style pistol with no manual safeties is a good idea. That isn't quite the same as sticking an uncocked Colt Peacemaker in your belt or a Condition 3 Glock.

It could be argued that a reasonable person might not see an obvious likelihood of harm from such practice. (IIRC, kraigwy pockets a snubby without a holster.)

Kraigwy carries a S&W 642 (a double action revolver) in his pocket with no holster. This differs with the practice being discussed here in two significant ways:

1. It is in his pocket, where it is unlikely to fall out/end up jiggling down his pants leg and trigger that reflexive grab move that caused the problem here (and in several other prominent past cases).

2. It has a long double action pull that is comparatively heavier, making it less likely that an object in the trigger guard would fire the revolver.

Personally, I am still not a fan of holsterless pocket carry; but what kraigwy describes doing and what this guy did are worlds apart in terms of safety and reasonableness.

rem44m
December 12, 2011, 04:32 PM
"I pocket carry my 642 without a holster. I tried ever way from Sunday to get it to fire (empty of course). Just don't see it. Not with a 642 anyway."


I carry an SP101 everyday that way everyday, but revolvers are a different animal and are not something carried "cocked" whereas most semi's will be carried cocked, because no one wants to draw and then rack the slide while your threat waits for you to get prepared.

I ride four wheelers/ATV's like that all the time! I don't worry about an accidental discharge, but with my Glock I ALWAYS have a holster and a secure one at that.

aarondhgraham
December 12, 2011, 04:34 PM
By that I do not think he should be charged with a felony,,,
He had no intent to harm and wasn't under the influence of drugs or alcohol.

But if I read the article correctly his charge would be a misdemeanor,,,
And in his state a misdemeanor would not disqualify him from serving as a police officer.

If any one of us would have done the same thing,,,
We would be facing prosecution for that same misdemeanor charge.

If any of you are thinking he should get preferential treatment,,,
Simply because he is a police officer,,,
Shame on you I say!

He made a poor decision to waistband carry,,,
His poor decision facilitated the negligent discharge,,,
The man dropped his handgun and it went off in a public venue,,,
The fact that he is an experienced officer makes it even more negligent.

No matter how slightly, a person was injured,,,
He can stand up and say he is sincerely sorry all day long,,,
In his career how many times has he charged people who expressed sincere regret.

I won't try to make the old argument that police officers need to be held to a higher standard,,,
But I will make the argument that they need to be held to the same standard,,,
Again I say, if any of we citizens had the same misfortune,,,
We would be charged with no questions asked.

Either charge him or never charge any other citizen for the same occurrence.

Aarond

trex1310
December 12, 2011, 05:07 PM
I always considered carrying without a holster a good way to
eventually lose part or all of your family jewels.

jimbob86
December 12, 2011, 05:18 PM
I'm trying to figure out what kind of fashion statement he was trying to make wearing pants so baggy that a full size duty gun could fall down them ......

MLeake
December 12, 2011, 06:38 PM
And yet you could fail to maintain adequate following distance on a wet road, fail to get enough traction, and rear-end a stopped car - yet not draw criminal charges unless the state decided you weren't only too close, but reckless. Drivers kill people in preventable accidents, and get reamed in civil court, yet typically they do not face criminal records or jail times.

Was the guy stupid? Sure.

Do I carry in that manner, or recommend carry in that manner? No.

And yet I feel we as a nation tend to overcharge and/or criminalize way too many things. This is especially true when guns are involved.

And no, I am not for cutting him a break because he is a cop. If anything, I would hold him to a higher standard in a civil suit.

MLeake
December 12, 2011, 06:47 PM
How to make a 642 or 442 trigger cycle in holster-less pocket carry:

Forget a house or car key in that pocket, then insert gun. That'll do it. This is why I use pocket holsters - and try not to ever put anything else in that pocket.

Make any DA trigger cycle: snag a windbreaker drawstring on the trigger while holstering; or loose shirttail material.

We had another TFL guy post about a discharge due to worn holster leather snagging his trigger when he holstered.

Some folks might want to get off the high horse long enough to consider that someday it might be them, remote though the possibility may seem, that screws up.

At that point, their take on what should constitute a crime may have a sudden shift...

Bartholomew Roberts
December 12, 2011, 07:04 PM
At that point, their take on what should constitute a crime may have a sudden shift...

My take is, and will continue to be, that Mexican carrying a condition 1 "safe-action" style pistol with no manual safeties is negligent. If you are a 25+ year veteran and a police supervisor, I just cannot fathom how you could not know this was not an acceptable practice.

Had there been some compelling reason to take that risk - a possible robbery in progress for example, I could cut the guy some slack. As it is, it looks like he just engaged in a stupid practice that not so long ago killed a father in front of his children. If he gets a misdemeanor out of it, that is really a long way from the worst outcome of what he did.

Drivers kill people in preventable accidents, and get reamed in civil court, yet typically they do not face criminal records or jail times.

Drivers in non-injury accidents routinely receive Class-C misdemeanors here in Texas (tickets/fines). If you injure or kill someone, you can not only be charged with higher level offenses, you can be arrested right there on the spot and taken to jail. I don't know where you are at; but I'm betting that drivers that kill or injure people end up with criminal records there too.

MLeake
December 12, 2011, 07:10 PM
Drivers in Florida and Georgia only seem to draw criminal charges when: intoxicated; racing; traveling at speeds defined by statute as reckless; running red lights; or if they leave the scene.

A driver in FL put my dad in the hospital with damaged disks in his neck and back via an unsafe merge onto I-4. He then left the scene. A Samaritan followed the guy, who exited, re-entered opposite direction, and was pulled over by FHP while rubber-necking. Because he was stopped adjacent to the scene, he was not even charged with leaving...

K_Mac
December 12, 2011, 07:23 PM
And yet you could fail to maintain adequate following distance on a wet road, fail to get enough traction, and rear-end a stopped car - yet not draw criminal charges unless the state decided you weren't only too close, but reckless. Drivers kill people in preventable accidents, and get reamed in civil court, yet typically they do not face criminal records or jail times.

In this example the driver doing the rear-ending would be cited for too fast for conditions, failure to have his vehicle under proper control, or some similar charge. He would be fined accordingly; and, if someone was killed or injured and there was any evidence of recklessness or negligence he would be charged accordingly.

And yet I feel we as a nation tend to overcharge and/or criminalize way too many things. This is especially true when guns are involved.

MLeake I agree that the guy was stupid. While we would probably agree on many of the things Government should stay out of, carrying a weapon in a way that puts others at risk is reckless. When guns are involved we have have the responsibility of doing everything right. When we don't we endanger ourselves and others, and we give the knotheads in Government reason to clamor for more control. Peace.

kraigwy
December 12, 2011, 07:31 PM
How to make a 642 or 442 trigger cycle in holster-less pocket carry:

Forget a house or car key in that pocket, then insert gun. That'll do it.


I have more then one pocket. One is just for my 642. I have other pockets for the other junk.

I started the pocket carry when I was in LE. That was Anchorage and being Alaska, it got nippy in spots. We had Parka's and even though they had a zipper side to get to the gun, everthing hung up. So I started carrying a snubby in my parka pocket. (nothing else in that pocket). I figured it worse came to worse I could shoot from the pocket and if I felt the need, I kept my hand in my pocket. No one knew I was "ready". No one saw the revolver.

The same thing, only now its my pants pocket. Nothing to hang up on, and nothing to catch the trigger.

I don't ask others to do this, but I've been doing it for nearly 40 years and ain't shot my self yet.

K_Mac
December 12, 2011, 07:40 PM
Some folks might want to get off the high horse long enough to consider that someday it might be them, remote though the possibility may seem, that screws up.

At that point, their take on what should constitute a crime may have a sudden shift...

So what is your point? If I negligently discharge a weapon at the mall I will accept the consequences.

I am not advocating jail time for the good Sergeant. A fine and disciplinary action seems reasonable to me.

MLeake
December 12, 2011, 07:51 PM
A misdemeanor carries the potential for up to one year of jail time in most states; in some states, it could be up to three years in jail.

This is different from a fine or disciplinary action, don't you think?

If Wisconsin wanted to suspend his CCW, or his department wanted to put him on rubber gun duty pending remedial training, that wouldn't bother me. Misdemeanor charges are excessive.

K_Mac
December 12, 2011, 08:26 PM
Would a year, or even three in jail be excessive if someone had been killed? Yes, in this circumstance that would be excessive, and that is why there is flexibility in the system. I understand you're not happy with the system, and sometimes I'm not either, but until something better is found I'll take my chances with this one.:cool:

Kevin Rohrer
December 12, 2011, 08:32 PM
This is an excellent example of why pistols need manual safeties and why the 1911 is still the safest one out there after 100-years of use.

Moral: if you carry a pistol that doesn't have a manual safety, carry it in a secure holster. Revolvers are safer due to ther heavier trigger and passive safeties, but you still have to be careful w/ them.

DVC

C0untZer0
December 12, 2011, 08:41 PM
^ HK P7 is safer than a 1911 or BHP, IMO.

I had a Colt Mustang and my wife's purse had a pocket that fit it perfectly, I packed it for her for a business trip - loaded it and put the safety on and zipped it in it's pocket, when she came back I took it out of the pocket and the manual safety was off - flipped down.

It didn't discharge, but it was a lesson to me that even though that purse compartment fit the Mustang perfectly - the gun needed a holster.

Pvt. Pyle
December 12, 2011, 10:08 PM
Protect your dick wear a mic.

Perfect holster for this type of pistol with this type of carry.

This guy overlooked something when he walked out the door with a gun that operates the way it does, carrying the way he was.

Just a good thing no one was seriously injured.

This guys superiors should give him a wood gun like on The Other Guys.

Niantician
December 12, 2011, 10:31 PM
Can one of the posters who pocket carries without a holster explain why? A Nemesis pocket holster costs less than $20, it breaks up the outline of the gun, it protects the trigger, as well as most of the rest of the gun, it keeps the gun oriented in the proper direction for drawing, and it keeps your pockets from wearing out.

kraigwy
December 12, 2011, 11:11 PM
Can one of the posters who pocket carries without a holster explain why? A Nemesis pocket holster costs less than $20, it breaks up the outline of the gun, it protects the trigger, as well as most of the rest of the gun, it keeps the gun oriented in the proper direction for drawing, and it keeps your pockets from wearing out.

I can't speak for others. I tried pocket holsters and never found one that suited me. It created more bulk, and looked like something weird.

I carry my 642 in my pocket (without anything else) and it looks no more bulky then my keys, pocket knife, and pocket watch in my other pocket. In fact if you notice it at all, just looks like junk like the other pocket.

I have had a problem with it "shifting" The always sets the same way where when I put my hand in my pocket, I get the grip.

Its fast too, faster then any holster I've tried. I can get it out pretty quick. I don't draw or use it on public ranges, I only shoot it in my back yard range, just in case some one gets nervous.

If I diside to shoot a match with my 642 I use a belt holster.

The only problem I've had in the last, almost 40 years, with this method is, a couple times while in the shower my wife forgets and grabs my pants and heads toward the washing machine without checking the pockets. Now she pretty much leaves my pants alone until I empty the pockets and toss them in the hamper.

When I use holsters I've found them inconvient, taking them off in the evening 'n such. My pocket revolver is always with me, I hang my pants on the beadpost at night keeping it handy.

Not saying pocket carry is for everyone, it just the way I do it.

OH by the way. I was at our club meeting tonight and someone had a Glock. I dry fired it a bit and its not quite like my 642. I would never carry a glock without a holster. The trigger is a bit different, not even considering the size.

jimbob86
December 13, 2011, 12:35 AM
I don't ask others to do this, but I've been doing it for nearly 40 years and ain't shot my self yet.

I bet Sgt. Shotdafloor said something similar...."I been dong this 25 years and I ain't shot myself yet."

By the Grace of God, sez me.


"Yet."

Maybe you won't ever have an ND. kraigwy..... but you go touting your ability to carry sans holster and someone a bit less ..... "disciplined" ...... about keeping a pocket just for the gun will read that and say, "Kraigwy can do it- hell, he makes his own guns, he must kow what he's talkin' about.... and now we have some newb that thought he was an aspiring Kraigwy and was really just another Plaxico...... only the foot he puts a bullet through is as likely to be some bystander's as it is his own...... it ain't smart, so don't condone it.

Deja vu
December 13, 2011, 09:02 AM
My grandfather carried for 66 years in the pocket with out a holster and never had any problems. He said he did not like how the holsters felt. He has now passed so I guess it is possible to not use a holster and never have an accident.

I carried for 11 years with out a holster and no incidents. It wasn't until I got a holster (as advised by this forum and my wife) that I ever had a problem. The stiff leather did not allow my shirt to move away from the gun when re-holstering it and the gun went off, Fortunately I was on my own land and no one got hurt (other than my pride).

I have switched holsters

Skans
December 13, 2011, 09:41 AM
I don't see the big deal of carrying without a holster - so long as the gun is appropriate for the clothing you are wearing. I might have an objection if someone attempts to carry a Desert Eagle in the pocket of his jogging shorts.:eek:

Kevin Rohrer
December 13, 2011, 10:30 AM
I carry a J-frame revolver in my (inexpensive but servicable) Mika pocket holster for 3-reasons:

1. It breaks-up the outline of the gun.
2. It keeps the muzzle from poking a hole in the bottom of my pocket.
3. It keeps the hammer from getting caught in the pocket and interfering w/ my draw.

Bartholomew Roberts
December 13, 2011, 10:44 AM
Carrying without a holster can be done safely. My grandfather used to carry a single-action revolver in his pocket. Perfectly safe because it was a single-action and the hammer was down. You can carry the S&W M&P involved in this incident in condition 3 with no holster and it will be every bit as safe (and probably a bit safer from a drop safe perspective).

What you can't do without creating a much higher risk of negilgent discharge is carry a safe-action pistol in Condition 1 with the trigger exposed.

9ballbilly
December 13, 2011, 10:45 AM
Gotta kick my two cents in guys.

I do sometimes carry my S&W 4006 .40cal tucked in the back of my pants with no holster. This is a comfortable way for me to carry this gun, however mine does have a safety and it is always on when I carry in this fashion. I've done this for sixteen years without incident.

TailGator
December 13, 2011, 11:03 AM
I don't carry without a holster, but I no longer have a handgun suitable for doing so, either. In defense of kraigwy and others who make a considered and well-informed choice to carry in that manner, there is a whole heap of difference between the triggers of various revolvers and pistols. When I had a 642, I occasionally carried in that manner, but I wouldn't consider doing so with my Glock 26. Understanding the capabilities and limits of a given firearm seems to me to be much more valuable than making blanket statements.

My concern with the story in the OP is that it leaves the appearance that the officer was either misinformed, made poor decisions, or was too casual in his considerations and handling. I have a hunch that this may have been a case in which gun handling became so routine that it became thoughtless, which is something we would all do well to guard against.

kraigwy
December 13, 2011, 12:27 PM
"Kraigwy can do it- hell, he makes his own guns, he must kow what he's talkin' about.... and now we have some newb that thought he was an aspiring Kraigwy and was really just another Plaxico......

Well in that case, I guess I wont discuss my days when I use to "run with scissors or talked to the bus driver when the bus was in motion"

MLeake
December 13, 2011, 12:55 PM
kraigwy, sorry, I wasn't trying to make a bad guy out of you. I was just pointing out that what may be a no-no to some may be ops normal to others; and that in the absence of statute or case law to the contrary, lack of a holster or safety does not in and of itself equal criminal negligence. I used you as an example of a reasonable, respected person.

aarondhgraham
December 13, 2011, 01:10 PM
In my mind the issue is that the man allowed his gun to go out of his immediate control and a bad thing happened as a result of it.

This line of the statute applies here,,,
"Endangers another's safety by the negligent operation or handling of a dangerous weapon"

One can waistband carry for years and if nothing ever happens then negligence never happened.

But in this case something bad did happen,,,
So I think a charge is completely valid.

Mleake made a point that I am in some agreement with,,,
We may have become a society too eager to lay blame and deal out punishment.

In that light I will not call out for him to be hung out to dry,,,
But some sort of punitive sanction should be applied towards him.

The charge could just be "Stupid in Public",,,
He should not however be allowed to get off scott free.

Aarond

TexasJustice7
December 13, 2011, 01:14 PM
Kraigwy: I pocket carry my 642 without a holster. I tried ever way from Sunday to get it to fire (empty of course). Just don't see it. Not with a 642 anyway.

I pocket carry my S&W 642 airweigh too, but I have a Charter Arms holster
I bought for less than $20 for my CA Bulldog. I only use the CA holster for
the S&W and the Bulldog in a Galco paddle hoslter. My 642 has no hammer
or reclused, so I don't believe one like mine can go off from being dropped.
That CA holster works really well when I draw the gun, it stays in the pocket
because of the material its made out of. I don't think the guns accidentally
going off are revolvers, unless they are old ones.:)

Rj1972
December 13, 2011, 01:28 PM
I don't think anyone has mentioned it, so I will. We keep talking about holster or not here (which i'm a fan of), but there's one more thing worth repeating. While it's not 100% clear that this happened, there's enough evidence to think it MIGHT have been the case that he caught the gun while it was falling.

As he reached for the weapon, it went off, blowing a hole through his pants.

Most of us already know it, but don't catch that falling gun. It's infinitely more likely to go off if you catch it than if you just let it hit the floor.

If that's not quite what happened then so be it, but I'll throw that out there anyway.

Onward Allusion
December 13, 2011, 01:59 PM
The only way a semi-auto should ever be carried in a pocket w/o a holster is if the chamber is empty.

MLeake
December 13, 2011, 02:06 PM
I have dropped a gun once, and barely overcame the urge to catch it.

When I was younger, while quartering an orange with a Chicago Cutlery knife, I dropped the orange. On pure reflex, I caught it. Knife was still in the orange. Slashed up my left thumb pretty nicely.

Point being, reflex often kicks in and has us do things we would not do, if given a moment to reflect. Thinking about the problem ahead of time can help pre-condition against reflex.

That said, I have been shooting for thirty years or so, including military training; yet I don't think an instructor ever mentioned not catching a dropped gun until fairly recently.

I still think too many people want to make crimes of what more reasonable people would use as teachable moments.

K_Mac
December 13, 2011, 02:24 PM
I still think too many people want to make crimes of what more reasonable people would use as teachable moments.

The sinking of the Titanic provided a teachable moment for the entire industry. That does not justify the recklessness of many of the decisions leading to the disaster, or the loss of life and property.

I think reasonable men can disagree. It does not necessarily mean I'm less reasonable than you because we disagree on this issue.

MLeake
December 13, 2011, 02:35 PM
So, K_Mac, is it reasonable to assume you think all hunting accidents that result in injury should be criminally charged? All traffic accidents? All boating accidents? If not, what is your cutoff for criminal vs civil liability?

manta49
December 13, 2011, 03:40 PM
Its a chance you take carrying a pistol with a round in the chamber. If he didn't we would not be having this discussion.

The problem is there was a complaint made the police have to follow it up i would think end expect an experienced police officer to know better than to carry a loaded firearm and not have it in a holster. Before having to much sympathy for the officer if you did the same thing he or one of his colleagues could be round arresting you and telling you how stupid you where.

K_Mac
December 13, 2011, 04:04 PM
So, K_Mac, is it reasonable to assume you think all hunting accidents that result in injury should be criminally charged? All traffic accidents? All boating accidents? If not, what is your cutoff for criminal vs civil liability?

No, that conclusion is not supported by my posts.

I think the question of where the line is drawn is a fair one though. At the end of the day the line is not always clear. You simply cannot use a one size fits all answer to this question. All hunting, or boating, or lawn darts accidents are not criminal, but if someone is killed or injured and you have been reckless in your actions, maybe it is. To use your argument, mens rea is either intent or recklessness. The administration of justice is is not simple or easy. Our system of justice that you find oppressive takes this into consideration.

Back on topic, if this negligent discharge of a weapon in a shopping mall is not 'endangering safety by use of a deadly weapon' what is? Is it right for the government to have laws on the books that protect citizens? Seems like I've read that somewhere...

MLeake
December 13, 2011, 08:49 PM
Intent or recklessness, great.

Since his intent was not to shoot, now you are left with recklessness. Since there have been many gun owners, over the years, for whom holster-less carry was normal, IMO you can't establish recklessness simply because you (and I) think holster-less is a bad idea. You would need either statute or case law that said such carry met the level required for recklessness, as opposed to simple carelessness. These are not the same.

Some folks have thrown "Plaxico" around. Please bear in mind that Mr. Burress was not licensed to carry in NY. I am not sure if his gun was legally owned in NY. His charges did not directly result from the discharge of the weapon, but from the fact he was carrying it in the first place.

JohnKSa
December 13, 2011, 10:10 PM
Proper holsters and proper cases** provide the only reasonable way to avoid violating Rule 1 while carrying a loaded gun.

If you're carrying a loaded gun without one then it's virtually impossible not to violate Rule 1.

As far as I'm concerned, the person involved intentionally violated the first rule of gun safety with a loaded gun in a crowded area by carrying it without a proper holster.

**A proper holster/case covers the trigger/triggerguard and makes it totally impossible to fire the gun until it is removed from the holster/case.

K_Mac
December 13, 2011, 10:11 PM
Holsterless carry is a bad idea, and when it endangers others it goes beyond that to reckless. You claim carelessness rather than recklessness. We do not need a statute to establish the difference. We need only to look at the cause of the action that put lives at risk. You say that carrying a 'safe action' pistol stuck in your pants is normal because some do it, and it is not specifically prohibited. I say that when you carry a weapon in a reckless manner you assume the risks that go with it.

I once went rabbit hunting with a guy who carried a semi auto shotgun through fields and woods all day without using his safety. At the end of the day, I noticed that long before he shot he had his finger on the trigger and he did not disengage the safety before shooting. When I asked about it, he told me he wanted to be ready to shoot and he never used the safety. What he learned from this opportunity was hunting or shooting with me was no longer an option. It was careless on my part to hunt with someone who did not follow the rules. It was reckless on his part not to. We don't need a law or lawyer to know the difference.

MLeake
December 13, 2011, 10:21 PM
Well, K_Mac, I guess the sergeant will have to hope he draws a jury with at least one person who doesn't see things as you do. I would say his odds are not too bad.

K_Mac
December 13, 2011, 10:30 PM
MLeake, it is hard for me to imagine this will come to trial and I think you know that. It is also hard for me to imagine that anyone on a jury could find our Sergeant's actions anything but negligent.

I have beat this horse long enough, any more might be considered recklessness.:D Peace.

MLeake
December 13, 2011, 10:34 PM
K_Mac, I could not keep my current job with a misdemeanor firearms conviction. This is why I do not see it as "just a misdemeanor," and why I do not think the sergeant will accept any plea that comes with a conviction.

People seem to think a misdemeanor is only a slap on the wrist. This is not true.

Bartholomew Roberts
December 14, 2011, 02:02 AM
Since there have been many gun owners, over the years, for whom holster-less carry was normal, IMO you can't establish recklessness simply because you (and I) think holster-less is a bad idea.

To me, it appears you are trying to take a more general practice that can be done safely or with significantly less risk (carrying a handgun without a holster) and conflate it with a practice that is almost impossible to do safely (carrying a cocked and loaded constant action handgun with no holster or device to block access to the trigger). I don't know if you are doing it intentionally, unintentionally or just don't understand why that is an important difference in this case.

I don't think you'll find that most gun owners regard the holsterless carry of cocked and loaded safe-action pistols as normal. And even if they did, it is still an unsafe practice, regardless of how many people do it. I think JohnKSA outlined why very well.

TX_QtPi
December 14, 2011, 03:05 AM
k, been following this one since it started.
I highly doubt the officer went out with the intent of this happening.
Did it happen? Yes. Speculation aside it was negligence on his part.

Having worked in a few DOJ & DOD offices I have met some gun handling cocky LEOs. One got EXTREMELY offended when I asked him not to throw around the bag he had his service weapon in.

He said it was IMPOSSIBLE for it to miss fire. A few weeks later he had a misfire at the range when he "forgot" about the chambered round pulled the clip and dropped the safety on what he thought was an empty weapon.

It's not the exact scenario but JMO, if it's exposed to other things around it (such as in his bag) or out of a holster where it can snag or an accidental trigger pull can occur it's a bad idea.

Not sure who posted earlier but they mentioned a pocket carry which I would say is not as bad, because your pocket "becomes the holster" but like it was also said on here it's too easy to forget about the house key you had in your pocket or to drop that pen in your hand in there along with it...

My basic premise is, carrying with out a holster (especially if it's a trigger action safety or no safety set up) is a lot like screwing without a condom, sure it feels good, but it is careless and you better be able to deal with the consequences....

MLeake
December 14, 2011, 09:30 AM
Again, there is basic negligence and there is criminal negligence. You want to talk conflation...

Meanwhile, bearing in mind that many cops are not gun guys, how many of us grew up watching Magnum PI rack his 1911, then tuck it in the back of his waistband?

I stopped carrying a 1911 in one shoulder holster I had, because I found that the thumb safety would get clicked off sometimes during carry. Yet some posters to this thread seem to think a 1911 is ok for Mexican carry.

Pocket carry, meanwhile, could be pants or coat. It can allow for dropping of the weapon, and foreign object intrusion.

Meanwhile, JohnKSA says a holster must guard the trigger. Yet a lot of revolver guys use Threepersons type holsters, that wholly expose the trigger. And DeSantis just introduced a pocket holster that leaves a hole over the trigger guard, and another over the grip, so the gun can be shot from the pocket...

Make the guy pay for the floor. Make the guy pay for the woman's doctor visit. Slap him with a fine, pull his gun privileges pending remedial training, and put a note in his file at the department. That is all fine. Why, exactly, do we need to give the guy a criminal record?

Edit: this would be a great opportunity for the department to put out an order that all handguns shall be carried in some kind of holster, if they already haven't; for Wisconsin to stipulate holsters for CCW, if it hasn't; and for the sergeant to be assigned to give lectures about not being a bonehead. Those are all more appropriate than criminal action.

jimbob86
December 14, 2011, 10:21 AM
Why, exactly, do we need to give the guy a criminal record?


Go back and look at the local prosecution records: if Joe Sixpack gets charged for a public ND, then Officer Sixpack should be charged also.

If, OTH, Joe Sixpack get scolded to not do it again, then the same goes for Officer Sixpack.

What is Good for the Goose is Good for the Gander.

MLeake
December 14, 2011, 10:29 AM
Wisconsin just passed concealed carry this year. From what I understand, people generally did not make much use of open carry. IE there probably isn't much precedent. I do agree there should not be a double standard, but I would have the same opinion if the bonehead had been a civilian CCW.