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Old December 12, 2011, 10:25 AM   #1
C0untZer0
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Carrying without a holster

.

Wis. cop charged after gun goes off at mall

http://www.policeone.com/Officer-Saf...s-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.

Last edited by C0untZer0; December 12, 2011 at 10:37 AM.
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Old December 12, 2011, 11:41 AM   #2
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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...
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Old December 12, 2011, 11:55 AM   #3
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Quote from the linked story.....

Quote:
The.40-caliber Smith & Wesson was Edwards' duty weapon, according to Anne E. Schwartz, department spokeswoman.
What is the Milwaukie PD's duty weapon?
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Old December 12, 2011, 12:12 PM   #4
Don H
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The law the sergeant was charged with violating:
Quote:
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"?
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Old December 12, 2011, 12:13 PM   #5
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Quote:
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.
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Old December 12, 2011, 12:14 PM   #6
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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.
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Old December 12, 2011, 12:16 PM   #7
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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.
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Old December 12, 2011, 12:35 PM   #8
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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.
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Old December 12, 2011, 01:06 PM   #9
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Quote:
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.
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Old December 12, 2011, 01:19 PM   #10
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Quote:
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.

Quote:
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...
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Old December 12, 2011, 01:20 PM   #11
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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.
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Old December 12, 2011, 01:43 PM   #12
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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?
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Old December 12, 2011, 02:46 PM   #13
Crazy88Fingers
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^ 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.
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Old December 12, 2011, 02:58 PM   #14
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Quote:
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.....
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Old December 12, 2011, 02:58 PM   #15
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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!!.
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Old December 12, 2011, 03:31 PM   #16
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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.
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Old December 12, 2011, 03:34 PM   #17
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Quote:
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.
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Old December 12, 2011, 03:44 PM   #18
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Quote:
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. Endangering safety does not require criminal intent. Negligent is as negligent does.

Edit: I think actus reus is the relevant statute.
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Last edited by K_Mac; December 12, 2011 at 03:51 PM.
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Old December 12, 2011, 04:12 PM   #19
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Quote:
Originally Posted by Mleake
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.

Quote:
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.
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Old December 12, 2011, 04:32 PM   #20
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"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.
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Old December 12, 2011, 04:34 PM   #21
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I do not believe this man should be hung out to dry,,,

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.

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Old December 12, 2011, 05:07 PM   #22
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I always considered carrying without a holster a good way to
eventually lose part or all of your family jewels.
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Old December 12, 2011, 05:18 PM   #23
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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 ......
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Old December 12, 2011, 06:38 PM   #24
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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.
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Old December 12, 2011, 06:47 PM   #25
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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...
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