WI:Is placing a gun in a coat pocket "Negligent Operation"?

There is an interesting case in Wisconsin where a Concealed Carry Weapon license (CCW) holder has been charged with "negligent operation or handling of a dangerous weapon".  From jsonlin:

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.

There are some important points to note.  First, Marvin Jackson has a valid CCW license.    From jsonline:

Jackson is a valid concealed carry permit holder. The Racine woman was questioned and released by Racine police.

Second, 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 a pistol rather than placing one in a pocket. The derringer that will fire when dropped is an obsolete design. We have many better ones available today. On the other hand, not everyone can afford to buy the most modern weapons. Firearms Instructor on opencarry.org 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. Three hoodies were holed. I think that Jackson, or his companion, or both should pay for the hoodies and for any necessary repair to the display rack. Perhaps some civil fine would be in order. When a Milwaukee police Sargent had an accidental discharge, in which his hand was on the pistol (almost certainly on the trigger), he only had to pay a $1,000 fine, even though there was a minor injury associated with that negligent discharge. 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.

 So, if someone else picks up your firearm and drops it, you are to be charged with negligently handling and operation of a firearm?

There is almost no case here.  The logical contortions that the prosecution has to go through, to prove "negligent handling" 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 is not a far step from this to charge 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.  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.  

Now, 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 bail.  That suggests that the judge has some negative bias against the ownership of firearms.  Of course, the trial judge may not be the same judge that set bail.   To bad Marvin Jackson did not 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 of cases such as 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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