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By Dean Weingarten

Antique Derringer

WI: Is Placing A Gun In A Coat Pocket ‘Negligent Operation”‘

Gun Watch

Gun Watch

Arizona - -(Ammoland.com)-  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, shots 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. Link to Gun Watch

About Dean Weingarten;
Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973.  He taught the Arizona concealed carry course for fifteen years until the goal of constitutional carry was attained. He has degrees in meteorology and mining engineering, and recently retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.

  • 15 User comments to “WI: Is Placing A Gun In A Coat Pocket ‘Negligent Operation’”

    1. John Isbell on December 21, 2013 at 6:48 AM said:

      I know that he may not be criminally libel, but I think he may have to pay for the damages.If someone lets your horse out of his paddock,your still libel for the damages the horse does.

    2. Gene German on December 21, 2013 at 8:32 AM said:

      Negligence is the failure to do what an otherwise prudent individual would have done.

      Mr. Jackson failed to maintain control over his firearm. That is the proximate cause of this negligent discharge.

      No firearm should ever be carried naked, even if in a pocket. The two primary duties of a holster is to maintain a firearms position for ready access and to protect the trigger so it can not be pressed. The responsibility to put his gun in a holster before leaving his home begins and ends with Mr. Jackson.

      No amount of excuses will change the fact that Mr. Jackson carried a loaded and unholstered firearm which was careless handling and he was negligent by not maintaining control over it, which resulted in this incident.

    3. Yeah… His gun… He brought it there, it goes off because he lost positive control of it. He’s responsible and a threat due to his negligence. Idiots like this, AND people justifying it provides great ammo for anti-gun types to push carry restrictions. Cmon man.

    4. Marc Brewer on December 21, 2013 at 9:13 AM said:

      It IS because it IS……that just doesnt happen. Period.
      I don’t know about the legalities and charges but I of course agree with John. Looks like he’ll be buying a display case.

      Believe me, if I had been shot in that incident this dude would be UNDER the jail and rightfully so.

      VERY negligent…..period

    5. One of the major rules for cc is to make sure your weapon is secure. Whether it is an old or new gun is beside the point.To put your gun in an open pocket, then to lay that coat over something, not taking into account gravity and common sense, is not keeping it secure and is just plain dumb. It’s like turning your wrist while holding a cup of coffee to look at your watch,except with potentially dangerous ramifications.

    6. Chris Rakes on December 21, 2013 at 11:12 AM said:

      the author of this article shows his stupidity by calling a Concealed Handgun Permit (CHP), a CCW. this is the language of someone who does not think. hopefully he will stay away from writing

    7. markinidaho on December 21, 2013 at 11:22 AM said:

      The negligence is in carrying a weapon that can discharge so easily. There are plenty of hand guns that can be dropped without a risk of discharge. Gun control is not only about hitting your intended target but also about controlling the gun when it is mishandled. Get a Kel-Tec or LCP or such other small hand gun.
      Guns that can fire when dropped are obsolete safety wise. Just like driving a Pinto. Get rear ended in a Pinto and have the gas tank explode and the Pinto owner is also at fault for having such a dangerous car.

    8. justtryit on December 21, 2013 at 11:38 AM said:

      Guys like this will inevitably give all CCW holders a “bad,bad,wrap”. First, and foremost, the holder of a CCW must ensure the safety of the weapon they are carrying along with the safety of others; disregarding any potential assailants! My take on this is,the individual’s CCW should be temporarily suspended pending sucessful completion of an approved concealed carry safety course (even if they already attended one), and verification by the CCW issuing authority, that the individual understands and complies with “safe carry and operation” of the weapon on their person. We can’t tolerate or uphold someone’s stupidity in this age of 2nd Amendment infringement!

    9. Criminal charges; NO! A class in common sense and maybe a retake of his {C.C.} class; yes.
      I completely agree with your comment Russ!

    10. Chjris Rakes Wisconsin license is named carry concealed license. CCW please dont impugn the author of this well written article with your pedantic prejudices.

    11. Not only is this person negligent, the friend that had possession of the firearm could be charged with illegal possession of a firearm if she was not licensed to carry. A sidearm should always be carried securely in a holster designed for that weapon not in a pocket,waistband or a purse. It must always be in your control.

    12. Rick Rork on December 21, 2013 at 4:52 PM said:

      He was not in control of his weapon. They even said he left it earlier and that is why she picked it up. Did she have a permit to carry? If you are gonna carry you must be responsible and this guy was not.

    13. It’s idiots like this that ruin a good thing for everyone. I would be surprised and frightened if he is allowed to keep his license.

    14. Never leave your loaded gun laying around and let someone else pick it up and drop it yep sounds like Negligence to me.

    15. Yes I agree that he was negligent. Let the punishment fit the crime. He should be fined for his negligent act and made to pay reparations for the damage done. If his negligent act also resulted in someone getting injured or killed then he should suffer the consequence of his negligence by doing jail time.

      He should not be punished for what MIGHT have happened. He should not go to jail or lose his pistol permit because someone might have been hurt. Perhaps a suspension and mandatory training class are in order.

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