Attorney Question of the Month
A few months back, 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, publishing the first half of their responses last month, and wrapping it up in this edition. Here is what we asked–
If this person had been one or your clients, how would you have advised him, and why?
Shawn A. Kollie
Attorney at Law
DeKalb & Associates
40 NW Greenwood Ave. Suite 100, Bend, OR 97703
I have had this exact same factual scenario come up multiple times. With a negligent discharge of a firearm, the best success I have seen is when the client (who discharges the firearm) immediately contacts the neighbor and has a civil discussion about what had occurred. Most of the time the neighbor and client can resolve any issues (like replacing a board, or removing the round from the home, etc.) without law enforcement. This is the best-case scenario to avoid law enforcement contact if at all possible.
If the neighbor is not amicable to resolving everything without law enforcement involvement, immediately contacting an attorney to have them present if/when law enforcement is questioning is the next most important step. In this scenario the client will be investigated and law enforcement will make decisions about arresting the client or not, so having an attorney to be the middleman between them and the client will help limit any negative criminal exposure.
There is no perfect outcome with a negligent discharge of a firearm, but working hard to be outside the criminal justice system if at all possible, is the best thing to do.
Stephen T. Sherer
Sherer & Wynkoop, LLP
730 N Main St., PO Box 31, Meridian, ID 83680
Very interesting question, which I see as much moral as legal. Legally, I would have to advise him not to create problems for himself. I would advise him to remove that gun from his home (leave it at work, safe deposit box, etc.) and do something nice for his neighbor to assuage his conscience. We have a duty to protect our clients legally.
Morally, if it were me, I would have a much harder time with that, but would probably approach the neighbor, show him the damage and offer to pay for repairs. If he then reports, so be it.
Kelly & Chapman
P O Box 168, Portland, ME 04112
The nightmare scenarios are:
1) Slow leak in gas line or nick in insulation causing fire;
2) Someone is injured / bleeding, and will expire if not promptly treated.
Both of those dictate due diligence. Turn on your voice recorder and talk to neighbor FIRST, if he’s home. Be prepared to admit that from now on, you’ll do your firearm stuff in the basement. Have him clear the joint, and be prepared to write a check.
Inform your insurer, or else it won’t be covered. If no harm and you’ve got it on record, no need for cops.
This is MUCH harder if it goes off and you DO NOT KNOW who might be at the other house. In that event, let ’em know [about the] accidental discharge. Let ’em know where it hit. Don’t answer anything more “until I've had a chance to talk to my insurer and neighbor and counsel.” Then call counsel right then. Is this hard to do correctly? RIIIIIGHT!! That's why we try, in polite society, not to shoot the houses of others. At that point, it’s damage control, with some possible downside if prompt action is not taken to mitigate possible harm.
BTW, for the cops, the party line is probably something like: “there's been an accident at [address].” Anything more is risky. They might be able to search or [make a] “protective sweep” [of] your house, in any event.
Summers Compton Wells LLC
1254 University Drive, Suite 300
Edwardsville, Illinois. 62025
I would advise him not to contact the police. I would recommend that he examine the neighbor’s house and, if it is damaged, contact the neighbor and offer to pay for the repairs. If there is no damage to the house and it is not possible to locate a bullet hole, nothing more will be necessary. If there is damage, or even a small hole, the neighbor will likely appreciate the client’s honesty and perhaps not call the police.
If the neighbor calls the police, the client will be in the position of not having tried to hide the incident and will likely not be charged with a crime because it was an accident, although this may vary from jurisdiction to jurisdiction. If the client does nothing and the neighbor discovers a bullet hole, the neighbor may be incensed and insist that the police charge the client with a crime, which may affect the actions of the police.
A recent Illinois appellate case had similar facts, People v. Olivieri (Ill. App. 1st Dist., No. 1152137, Aug. 2016, 2016 WL 4127306). The defendant claimed his finger twitched and caused the discharge of the firearm, which resulted in a bullet going into the neighboring apartment. The appellate court held there was not a showing of recklessness as necessary to support the conviction for reckless discharge of a firearm.
If the client is charged, I would recommend hiring an expert in the area of sympathetic nervous system reaction (SNSR) as applicable to firearms, or other expert if a different theory is appropriate, such as the expert who testified for Mr. Olivieri and stated he “absolutely believe[d] this was an accidental discharge of a firearm and not a reckless act.”
Mark Seiden, PA
3948 3rd St. S., Ste. 387, Jacksonville Beach, FL 32250-5847
Chapter 790.15 Florida Statutes prohibits KNOWINGLY discharging a firearm in a residential area with certain exceptions. It is a first-degree misdemeanor to do so. The State must prove intent under this statute. An unintended discharge lacks the element of intent, so without intent and absent any injury to another, an AD is not a crime. That said, if someone is killed as the result of an AD, however unintentionally, the shooter is liable to be prosecuted for manslaughter. Reckless conduct is the gravamen of a manslaughter charge, not specific intent to do harm.
My advice to a client who has an AD that strikes a neighbor’s home would be to immediately report it to the police. The client could then avoid the serious charge of shooting into an occupied dwelling (which is a felony that requires specific intent) by reporting the AD. If there is no injury, there should be no problem. The biggest issue in such a situation would be the “cover-up.” Should your neighbor discover a bullet hole in their home and call the police, it would not take Sherlock Holmes to figure out that the exit hole in your home lines up with the entry hole in your neighbors home and then the question would be “if it was an accident, why didn’t you report it?”
Most ADs occur during loading and unloading. It is wise to purchase or build a bullet trap somewhere in your home into which you can point the muzzle when loading and unloading.
Thomas C. Watts III
Thomas C. Watts Law Corporation
500 N State College Suite 1100, Orange CA 92686
980 Montecito Suite 101, Corona CA 92879
Long and in-depth did we consider this question but it took less than the time it takes a lightning bolt to make ground-fall to unequivocally answer with a resounding NO!
Many municipalities forbid the discharge of firearms. There is no distinction between intentional discharge and unintentional discharge. The Fifth Amendment to the United States Constitution grants a right against self-incrimination, which is a great right to exercise in any event.
Bruce Finlay Attorney at Law
P.O. Box 3, Shelton, WA 98584
I would never recommend that anyone call the police in a situation where no one realizes something like this happened. You are just asking for trouble. It is not a crime to keep your mouth shut and that is often the best decision, by far.
If you report it, maybe the police don’t charge you with a crime, but probably they do, and the lower you are on the socioeconomic scale the more likely you are to be charged. And if you are one of those unfortunate many in Washington State who lost their right to possess firearms but didn’t even know it, you will be charged with the crime of unlawful possession of a firearm.
You might also be charged with a variety of crimes in the firearms statutes, Chapter RCW 9.41, or reckless endangerment, or even drive-by shooting or something worse such as assault or attempted murder. You cannot be sure that you won’t get charged with a higher crime than you think fits the facts; because you are not the only person who will be judging what the facts were. I would not do it; at least not before talking to my lawyer about it thoroughly.
A big “Thank you!” to all of the Network Affiliated Attorneys who responded to this question. Please return next month when we pose a new question to our Network Affiliated Attorneys.
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