Attorney Question of the Month
Recently, one of our members called to chat about having an unintentional discharge of a firearm, which exited his house and possibly struck a neighbor’s house. The neighbor was not aware of it and did not suffer any harm from the incident. The member wanted to know if he should call the police and self-report the incident. It was such a good question, subject to variables like political climate in one’s specific location and other concerns, that we pushed the question out to our affiliated attorneys as this month’s question. Here is what we asked–
If this person had been one or your clients, how would you have advised him, and why?
Attorney at Law
3101 Oakes Ave., Everett, WA 98201
The crime of reckless endangerment was committed the moment the bullet left the barrel. My advice at any point afterwards is to remain silent. The client should not run to the police to confess. Remaining silent is the best policy. The issue is likely to go away.
Benjamin M. Blatt
PO Box 221, South Bend, IN 46624-0221
I actually had to advise a client about this very issue a couple of months ago.
If your AD/ND strikes a neighbor’s home, call the police. Here’s why: Yes, you might wind up facing criminal charges and expending money on criminal defense, but if you don’t report it, and the neighbor later spots and reports the damage, you have lost control of the narrative. Instead of being an apologetic neighbor who had an accident, the police will be looking at you as someone who may have attempted to harm or intimidate your neighbor for any number of reasons.
It’s like brandishing a firearm to dissuade a criminal act. If you fail to report it initially, and the would-be criminal calls the police instead, you go from victim to perpetrator in the space of a phone call.
Dale Carson Law
Blackstone Bldg., 233 E. Bay St., Ste. 1101, Jacksonville, FL 32202
No! To charge you with a crime there need only be probable cause! If you talk about this to anyone, anyone at all, you are likely to create probable cause. If anyone comes to your door or calls asking questions, about the AD, say nothing and get a lawyer. Under these circumstances, the questioner is not your friend. They are seeking an admission. Admissions against interest are never in your better interest. After all it is Biblical, to keep silent, better to be thought a fool than to speak and remove all doubt.
Today, there is more. There is now a dangerous new twist. We (speaking here as a former cop and retired FBI agent) never thought of charging citizens for lying to us. Why? Everyone lied to us at one level or another. We could not charge everyone. Today, things are different. In Florida if you lie in connection with a capital felony you can, and likely will be charged with a first degree (30-year) felony. Go figure!
Marc S. Russo
Attorney at Law
25 Plaza St. W. #1-K, Brooklyn, NY 11217
It says “possibly” struck a neighbor’s house. Unless the person was a trusted friend or relative, I would advise him not to report it. Especially if it happened some time ago and no one ever made any noise about it.
Nowadays especially, you never know what quagmire you could step into, even if no law was broken and no harm done. After all, you could have been “endangering minor children in your household through improper storage.” Maybe your concealed carry permit or hunting license should be lifted due to improper training or knowledge of safety procedures. In some of the more anti-gun jurisdictions they might go after you for “illegal discharge of a firearm” or “reckless endangerment.” Almost all cities and many towns and municipalities have laws against the former, even in rural areas with respect to “the town limits” or “within 100 feet of a house” or school, or something similar. If it ain’t broke don’t fix it!
Randy L. Robinson, Esq.
Attorney at Law
P O Box 682, Augusta, ME 04332
I would not self-report. This was an accident and if the neighbor is not worried about it, there is no reason to invite scrutiny from the local police.
If the neighbor does report it, be honest with the police. If possible, have a knowledgeable attorney along.
Stay quiet, retain an attorney and protect yourself. In sum, feel a little shame, and do not embarrass yourself and your lineage by pointing out your actual stupidity.
Finally, who could possibly benefit from your disclosure except those who would act to harm you?
Eric W. Schaffer
Attorney at Law
Schaffer & Black P.C.
129 W. Patrick St., #5, Frederick, MD 21701
As I sometimes tell clients do not confuse legality with morality. They are two very different concepts that do not always overlap. I think the November 2016 Network Attorney Question highlights this since there is both a legal and moral component to the question.
From the legal perspective if this person consulted with me I would advise them not to report the discharge. You have no duty to self-report, with your right against self-incrimination being enshrined in the Fifth Amendment. If you do the consequences could be severe. At a minimum you would be charged with reckless endangerment. This is a five-year misdemeanor in this state, which upon conviction would mean an immediate lifetime ban under Maryland law from ever touching a firearm again. There are certainly also civil ramifications with the potential of being sued.
It is only then after being fully advised of the legal ramifications of the different possible courses of action, that I would suggest the person considers the morality of their situation. They must square this with their own moral compass and decide what they should do. That is not something a lawyer can or should do.
Peter E. Taussig
Attorney at Law
2545 SW Terwilliger Blvd. #705
Portland, OR 97201-6322
Licensed to practice law in CA
Can’t imagine why on earth anyone would ever even consider doing that in the described circumstance. If there is an investigation, he [can] then think about providing an explanation of what occurred, but whether he is contacted in the course of the investigation could bear on the decision, even in that case.
Robert L. Schaefer
Schaefer & Dupree, Attorneys at Law, PLLC
112 N. Mulberry St., Elizabethtown, KY 42701
We had a similar action occur here within the last three months. Young man was cleaning a revolver, it discharged, traveled through his wall and struck the neighbor’s home. My advice is to not contact law enforcement but rather to contact the neighbor. I treat this as though my lawnmower had thrown debris against my neighbor’s home. Offer to pay for the damage and explain to the neighbors why this won’t happen again.
Once upon a time, law enforcement would have lectured the gun owner, offered some education and moved on. Today, when law enforcement is called, the LEOs want to charge the gun owner. A wanton endangerment charge, either felony or misdemeanor, can be difficult and expensive to defeat. The negligent firing of a firearm is just that, negligent; but juries often cannot understand the difference between negligent behavior and wanton behavior.
By the way, my guy actually called the police. As predicted, he was charged with Wanton Endangerment 1st Degree. He pleaded guilty to misdemeanor wanton endangerment, took 30 day of probated time and forfeited the gun.
John R. Monroe
Attorney at Law
9640 Coleman Rd., Roswell, GA 30075
I can't think of any reason for calling the police. Would you call the police if you were not sure if the light had changed when you entered the intersection? If you might have torn the tag off your mattress?
A big “Thank you!” to all of the Network Affiliated Attorneys who responded to this question. Please return next month for the rest of the responses our Affiliated Attorneys submitted on this topic.
Click here to return to our November Journal to read more.