Accidental Discharge (AD) or Negligent Discharge (ND) ~ VIDEO

Bob Irwin highlights the latest self defense and other shootings of the week. Read them and see what went wrong, what went right and what we can learn from self defense with a gun.

Finger on Trigger Gun Shot Firearm
Accidental Discharge (AD) or Negligent Discharge (ND)
Bob Irwin
Bob Irwin

USA –-( An accidental discharge (AD) or negligent discharge (ND)? In a recent column I did a story about an accidental discharge of a pistol at a gun show.

A number of commenters took me to task for calling an accident, what they see as a negligent act.

In that case it was an accident, there was no intention on the part of the seller of the pistol or the interested customer to fire a round in the gun show venue.

See my discussion on my YouTube show, with lawyer Clark Patrick,  where we weighed in on this (at the end of the video below). For witnesses or investigators to term such an act “negligent” implies a legal conclusion of fault.

They all agree that until all the facts about the incident are investigated and witnesses statements collected, no “legal’ conclusions should be drawn.

That could have far reaching consequences in criminal charges and/or civil lawsuits for monetary damages.

Bob Irwin, The Gun Store, Las Vegas

About Bob Irwin

The writer is the owner of The Gun Store in Las Vegas and has a gun talk radio show “Fired Up with Bob Irwin” Firedup is now on KSHP 1400 am radio from 5 to 6 pm on Thursdays and at the same time also on YouTube “Fired Up with Bob Irwin.

  • 45 thoughts on “Accidental Discharge (AD) or Negligent Discharge (ND) ~ VIDEO

    1. accidental discharge my butt, who loaded the gun?, who was handling it while ignoring the number one rule when taking possession of a firearm?..that is to check it, ya dont pull the trigger first to see if its loaded or not

    2. We look at it differently in the military. If you’ve been properly trained and you have an inadvertant discharge of a weapon then it’s a negligent discharge regardless of the circumstances. You’ve been trained, retrained and pounded into your head again about proper use of a weapon and you are fully responsible… Therefore you are negligent. If you bring a weapon into a gun show it’s pretty safe you ‘know’ the weapon and you are definitely negligent if it goes off because you failed to clear said weapon. For anyone to claim they need witnesses and to gather further information to make a legal case is another example of the downfall of our justice system.

      The only ‘accidental discharge’ is from someone like a child or adult not familiar with the function of a weapon who discharges one they are not familiar with. In the case of a child who discharges a weapon accidentally, any negligence is on the adult who left a weapon unattended around the child.

      As for the story in this thread about a police officer who fired a shotgun at a gun show… He was negligent. He being a trained officer, pulled the trigger of a weapon before HE ensured it was cleared, automatically makes him negligent because he went against the most basic rule of weapons… Always assume a weapon is loaded and keep your finger off the trigger.

      Bottom Line Up Front (BLUF)- any discharge of ‘your’ weapon in your control is negligence on you part.

    3. This was negligence on the part of both the vendor and potential customer.

      The vendor left a loaded pistol within reach of the general public. Most shows I have been to forbid loaded guns and loaded magazines on the floor.

      The vendor did not clear the weapon before handing it to the customer.

      The customer did not clear the weapon after picking it up.

      This is not simply an accident. This was negligent on the part of both parties.

      There is no question about these simple facts.


    5. at some point, somebody loaded that gun, its gonna take alot of overwhelming evidence to prove to me that somebody loaded that weapon and didnt know it

    6. All guns are loaded until proven otherwise. This is a general rule. Treat all guns as if they are loaded! However a lot of new gun buyers are not trained properly and don’t know to check. That is not the guns fault

    7. When I was in sixth grade about 40 years ago I had a friends shotgun go off by a mechanical defect. Fortunately I was raised around guns and I was taught that you never point a gun at anyone even if it is unloaded. My buddy wanted to know how to load his new/used 20 gauge pump shotgun so I told him I would show him. As I pumped one into the chamber the damn thing went off. We were in his bedroom so the room was full of smoke and it was loud as hell. The only fatality was his mattress which had a decent hole in since I was about three feet from it pointing the gun down while loading it. At the time my best guess was the firing pin was stuck out so when I pumped the shell in it went boom. I am not sure what type of discharge that would be considered but it was due to a mechanical defect in the gun somewhere. Needless to say it scared the hell out of me but no one got hurt in the slightest.
      I was so thankful that my Pappy beat into my brain to never point a gun at anyone period. By todays standards kids going hunting by themselves in the sixth grade would probably never be heard of but we did it all the time. I thanked God no one was hurt.

    8. theres a jar at the counter at indoor gun shows in Salt Lake City, guns are checked upon arrival, whenever an idiot has a bullet chambered, its taken and put in the jar..its amazing how many idiots there takes 1 second to chamber a round, no need to until theres a target!!

    9. If you hand me a Gun, I check to insure that it is Unloaded! That is the First Law of Gun Safety! Failure to insure that a weapon is unloaded it the Cause of all accidents! An accident = a round Magically jumping into a Chamber and Pulling the trigger all by itself! Damn I hate STUPID People!!!!!!!!!!!!!!!!

    10. Seems to me we have two issues: 1. Was someone negligent by the definition in Webster’s Dictionary & use of the word in the common vernacular of everyday English? 2. Was someone negligent by the definition in Black’s Law Dictionary & use of the word by legal professionals in a court of law?

      The answer to #1 (unless you’re illiterate) is an unequivocal “Yes”. The answer to #2 is “We’ll find out when the case is settled.”.

      1. @Roy Payne, Hey! I like that. You could have been a huge success in the diplomatic corps! Oh, maybe you were in the diplomatic corps.

        1. Nope. Never in the “diplomatic corps”, but I was an English major in college. Currently, I’m a pastor.

    11. I was at he Great Western Gun Show (largest in the World) when some a*sh*le went around putting live rounds into revolvers. A customer with the owners permission picked up one of the boobie- trapped revolvers and pointed it towards the roof to test the trigger pull. This was somewhat common practice at this time. But what was not common was neither the customer or owner checked the cylinder to make sure it was not loaded. The end result was that the show was called to a halt while all guns were checked. Several revolvers were found to have rounds in them and as a result All firearms from that show on were required to be zip tied. This became common practice at all NRA Conventions and most Gun Shows.

    12. There are no such things as accidents. Ignorance, mechanical failure, or acts of God. That’s it. I have been proving my kids wrong about that for the last 10 years. They will randomly call me and say “Ok Dad, I got one…” and then I shoot it down.

    13. Forty one years ago, at a place called Miesau, Germany, an infantry soldier came into the chowhall and sat his M16 down on the floor on its buttstock as he was leaning it up against the table. The bolt, which was locked back, slammed forward and, after stripping a round out of the magazine that he had left in the gun, chambered and fired that round into the ceiling without him touching the trigger. That was an “unintentional” discharge due to his negligence. Made a nice conversational topic for a while.
      When finishing a course of fire in an USPSA match you are told to “unload and show clear’ and then you are told to drop your hammer/striker. If that gun then goes “boom” it is you that is at fault and bears the consequences even though the RO looks into the chamber to make sure there isn’t a round there. You pulled the trigger, and the buck stops with you.

    14. M, it has just been proven by the FBI that they won’t prosecute if there is not intention to do something. At least Hillary got away with exactly that. What’s good for her should be good for all of us.

      1. sorry, I ain’t buying that wimpy “defense”, nor do I want to live in a world run according to the “values’ of Hitlery.

        If I am driving a car with the right front tyre so worn there are two ovals of steel belt weaving esposed on the surface, and that tyre blows at speed, the car then careers out of control and hits someone/thing, I am, at law, negligent for failing to maintain the tyres on my car as I ought. The fault of the crash will legally, morally, and pracitcally, fall upon MY shoulders.

        Now, if the tyre happens to hit some hazard on the road and is blown that way, I am not necessarily negligent (though I COULD be, as if following too closely I lack the time to identify and avoid the hazard) because I would have no reasonable expectation of a burden to prevent, given the circumstances. With the overly work tyre, however, I KNEW, oe SHOULD have known, of the condition of that tyre. And dealt with it before it failed.

        Neither party at the gun show cleared that weapon. BOTH should have. But the one whose finger was pressed onto the trugger MUST have done… else he IS negligent.

    15. Sorry, you’re still wrong. In the case you mentioned BOTH parties were negligent. BOTH should have ensured the weapon was clear. Neither party obeyed the four rules. Negligence isn’t just a term used by attorneys. The word exists in the dictionary for all and isn’t bound to the court room. To be negligent is to be:
      1. guilty of or characterized by neglect
      2. lazily careless; offhand

      Wether or not either party MEANT to fire the weapon is irrelevant. An article you recently wrote implied that during a self defense shooting we are responsible for every round fired (i.e. where does it land, danger to others, suspect fleeing, etc.). A self defense shooting is a high stress event in which all of our faculties may not be clear. Yet people are able to trudge through and make sound decisions during those critical moments. Two idiots at a gun show under no stress whatsoever are OBLIGATED to obey the four rules, and use sound judgement. Neither party was acting responsibly in the gun show incident. There were by definition NEGLIGENT.

      1. @M, Brother, you are looking in the wrong dictionary. See Black’s Law Dictionary( 5th ed) pp 930-933. Black’s is probably way beyond the fifth edition by now, and that will effect the page numbers. My apologies as I have not bought a BLD in many years.

        1. That is exactly my point. I don’t need a legal dictionary to say or use the word negligent. Webster’s has worked for most of my life. Luckily these guys didn’t kill anyone that day. However, if they had I could guess the attorney for the fallen would be arguing that the parties were negligent and therefore responsible for the death. Just because you don’t MEAN to do something doesn’t alleviate personal responsibility. An accidental discharge is when the weapon malfunctions or breaks causing a round to fire without a trigger pull. If someone pulls a trigger and the weapon fires at an inappropriate time. That is being negligent according to the definition in any standard (widely used and accepted in educational settings and some how less accurate according to you non-legal attorney dictionary) dictionary I can find.

          1. M,
            I agree with you on the definition of negligent. I was a LEO for 25+ years and the majority of that time was Senior Firearms Instructor/Armorer. I was involved in many officer involved shootings/discharges. Not a one was ever listed as an accidental shooting, because there was never a mechanical failure of the firearm. The inadvertent discharge of a functioning firearm by an individual is negligent and not accidental.

          2. @M Suit your self brother. But if you throw around legal conclusions, you may find yourself on the stand getting cross X ed. Or you might be joined as a defendant. Even more so if you have credentials.

    16. DH789 says, “For an accidental or negligent discharge to happen, someone must pull the trigger!”
      Absolutely not true.
      Just one example: on SKSs, with a floating firing pin, the gun can fire when the bolt slams into battery if the bolt is not properly maintained, and the pin is allowed to gunk up to the point it doesn’t move freely.
      Would that be an accidental or a negligent discharge? I don’t know.
      But, in my OPINION, it would be negligence, because if you own and shoot a gun, since the consequences can be fatal, it is imperative that proper maintenance should be both understood and done.

      1. @Big Bill, Many military rifles have no mechanical constraint on the firing pin (like a retractor spring), as the civilian rifles do. I have heard of military rifle firing pins being held in the forward most position by a build up of carbon (busy day at the office) then when the magazine is exchanged the bolt goes forward the pin contacts the primer. That is why military cartridges utilize a harder surfaced primer as their safety feature. Personnaly, I think that that is the rifle system’s fault, not the soldier’s. Then again I don’t think that the Hadjis are going to sue.

    17. In my NRA Classes, I use the term “Unintended discharge” which neither dodges blame (accident) or assigns blame (negligent) but in fact states it was a discharge that was not planned or wanted. Let the lawyers talk about assigning blame, and hope it isn’t a coroner doing so later, as well.

    18. For an accidental or negligent discharge to happen, someone must pull the trigger! Why is that considered to be an accident? Did someone pull the trigger by accident? How is that possible? He may not have intentionally wanted the gun to fire but he surely pulled the trigger intentionally. That would imply negligence because I have never been to a gun show where it was safe to just start squeezing triggers on guns. If you determine that you absolutely need to pull the trigger, wouldn’t you first want to visually and physically inspect the firearm before hand

    19. Neither the seller nor the buyer took proper care in handling the weapon. In the real world of common sense, that is negligent.

      1. @Kewl, I am not convinced that there is a sense that is common to all. The court, where the issue of negligence is decided, is the hypothetical plane, and has almost nothing to do with the real world. It is true that based upon the article someone may not have taken proper care, but who all, what was done or not done, and, several other sub issues remain undecided. Thus negligence can not, yet, be reached.

        1. Wild Bill, I understand your point, but most of here aren’t concerned with the legal aspect, it’s a potential life in jeopardy.
          I think the point of the article is ever constant vigilance in the name of safety, otherwise stupid and dangerous things can happen to the best of us.
          Rarely is it truly an “accidental” discharge, as in a failure of the mechanics. Everything else is a negligent discharge, (whether is be technically legal or not) because a human screwed up.

          After it happens is another matter, call a lawyer. A good one.

          1. BINGO!!! The semantics game is what the far left does to move their agenda or protect their criminal operatives. I will not participate in it. If someone had caught the bullet, there is a very good chance that the one holding the gun would have been charged with involuntary manslaughter. A lesser charge seems appropriate unless the gun failed(extremely unlikely). Every time someone handling a firearm has a momentary lapse of good judgement, that person makes all gun owners look bad because the leftists love to treat all Americans as a collective. Therefore, we should not rush to defend those who make the defense of our rights more difficult. We should appropriately chastise them so that it becomes less likely to occur again.

    20. Legal “word play” is a luxury we can not afford.
      Call it whatever you want, but someone screwed up big time and needs to be responsible. This impacts all of us who take care to follow the the 4 basic rules of gun safety.

    21. What happened to the concept that all weapons are considered loaded? No matter the circumstances. An accidental discharge, a negligent discharge is never ok because of the possibility of death or severe injury.

      1. @Don Bailey, That concept is still there along with the other well thought our rules of gun safety and remains paramount.
        @John Schoen, It is not legal word play. It is analysis before conclusion. Yes, some person or persons might be responsible, but we should all take care to avoid conclusions based upon the little thumb nail sketch provided supra. We must also be mindful that our four basic rules of firearms safety are not law. Those four rules work to keep us save, but can not be used to measure or decide the issue of negligence.

        1. I disagree. We’ve become so accustomed to reverting to the legal meaning of words we’ve lost track of common sense meaning. However, if you wish to go to it’s basic 8th grade form: “The core idea of negligence is that people should exercise reasonable care when they act by taking account of the potential harm that they might foreseeably cause to other people.”

          When you violate the one or more of the basic firearm safety rules you have committed an act of negligence, period. So, to the author and all the leagal beagles out there, stop parsing words and stop treating us as if we need a law degree to understand the meaning of the word.

          1. @Vann, Unfortunately, our lives are not governed by the ordinary usage of words. Our lives are governed by the meaning that the courts have given to words.

    22. Negligence is a legal conclusion leading to huge jury awards. For that reason the tern negligence should not be amateurs, outside of the courtroom. There are four (some break it down to five) elements leading to the conclusion: negligence. It would be improper to brand an action negligent, without running the analysis first.

    23. I was at a gun show in Raleigh North Carolina, an the Sheriff department was checking guns in that people bought to sale. Well an idiot bought a loaded shotgun to the show an a bigger idiot a deputy pulled the trigger before checking to see if the gun was loaded. A lady just happen to be walking by an, the pellets bounced off the floor hitting her in the butt. The officer was not charged.

    24. If you are handling a loaded gun at a gun show you are negligent.

      You failed to immediately determine if the gun you are handling is loaded and if it is unload and return to seller and get out of there. If unloaded continue to obey the four rules and buy your new gun!

      Accidental discharge is when a gun breaks somehow, a sear let’s loose or similar mechanical defect causes the gun the fire. Nothing anyone could do to prevent it from discharging, an “accident.”

    Comments are closed.