I believe I understand the motive behind the movement that began a few years ago toward replacing the term "accidental discharge" with the now in vogue "ND." As I view it, the shooting community wants to hold itself to a higher standard of safety and is taking the position that any unintentional discharge of a firearm is negligent. As the argument goes, the only "accidental" discharge that occurs is one that is caused solely by a mechanical failure unrelated to any human input. I believe this position is not only overly harsh on fallible humans, but it is also conceptually and legally incorrect. Otherwise, we have to accept the premise that any untoward event that is caused in whole or part by human failure or mistake rises to the level of negligence. Surely we aren’t ready to shoulder that heavy a burden on a global basis, so why should we do so with firearm usage?
Perhaps I’m looking at this from the standpoint of a trial attorney, but really don’t think that is the sole basis of my opinion. Nevertheless, let’s look at the definition of “negligence� that is given to juries in civil cases.
Note that the definition doesn’t say that any participation in an unwanted or unintended occurrence is negligence, rather it focuses on what reasonable prudent people would or would not do. This standard does not require perfection in terms of human performance. There are many events most people would call accidents, such as a driver’s wet shoe causing their foot to slip off the clutch and causing an accident; missing the nail and hitting your finger or punching a hole in the drywall; or slamming a fresh magazine home without your hand being flat a pinching your hand! (Guess why I used that one. )Definition of Negligence wrote:�Negligence� is doing that which a reasonable prudent person under the same or similar circumstances would not have done, or not doing that which a reasonable person would have done under the same or similar circumstances.
Bad results don’t always equate to negligence, nor does our failure to perform to the highest standards in any activity. The fact is people do make mistakes and accidents do happen. Does this mean it’s okay to have a car wreck, cut ourselves with a knife, burn an arm while reaching into a hot oven, or having a AD at the range? Of course not, we should always try to prevent accidents and to learn from them when they do occur. And some conduct clearly rises to the level of negligence, perhaps even gross negligence. Pointing your gun at the target with people downrange is clearly negligent, or going into a “shoot house� to run a drill without first making sure the tapers are clear is another example. Driving your car while you are exhausted or on medication that makes you drowsy are other examples of conduct that rises to the level of negligence.
I suggest that whether an intended discharge of a firearm rises to the level of negligence will depend upon the circumstances surrounding each specific event. Undoubtedly, some will be caused by negligent conduct while others will be simple accidents. A drunk with a gun is a clear example of negligence even before the ND. So too is someone who doesn’t practice trying to take the dreaded “hostage shot� in a life or death encounter. Other unintended events (including firearm discharges) are truly accidents as we commonly use that term. I have seen hundreds of juries rule precisely that, even though the event was caused by the acts or the omissions of the defendant. Although it’s hardly a legal concept, most of the jurors I have spoken to after such results in trials tend to view the defendant’s conduct in terms of what does or does not frequently occur to people. If it commonly occurs, juries tend to label such events as “accidents� because they happen to people they would consider to be “reasonable prudent� people. If the event is rare, then the perception is that “reasonable prudent� people don’t cause such events, so it rises to the level of negligence. This seems like a reasonable analysis when juries round off the rough edges of the law.
I suggest that calling every unintentional discharge “negligence� plays into the hands of the anti-gun crowd, just as we did years ago when we started using the term “assault rifle� when referring to guns that clearly were not. Calling an AD and ND does not result in greater safety and fewer events, nor does using the term “accidental discharge� condone unsafe gun-handling practices. Perhaps it’s time for us to reevaluate the application of the term “negligent discharge� to every single unintentional discharge.
Just my opinion folks - - -
Chas.
