Yes, You CAN Get Sued If You Carry Double-Action Pistols Without Manual Safeties

LYONS v. CITY OF CONWAY, USDC-ARED No. 4:04CV02303-JLH, 2007 U.S.Dist. LEXIS 29871, before USDJ Holmes, filed 23 Apr 2007.

LONG STORY SHORT: Officer's discharge of double-action pistol lacking manual safety, wounding subject he was arresting, was an unreasonable seizure if intentional; but departmental policy of issuing .45-caliber hollowpoint ammunition was constitutional. Not binding anywhere, but may be persuasive.

FACTS: Defendant, a sergeant of the Conway, AR PD, responded to a report of someone shoplifting steaks at a Kroger store. A Kroger employee advised Defendant that he had chased Plaintiff, the suspect, who hid in a fenced area behind a restaurant. Defendant and his partner looked through slats in the fence to see Plaintiff in a crouched position. Not knowing whether Plaintiff was armed or dangerous, the officers entered the fence and turned to face Plaintiff with their pistols in hand, but not cocked. Defendant was carrying his department-issued SIG P220. [Note: The P220 is normally carried with a full magazine, loaded chamber, and hammer down, but can be deliberately cocked for a lighter trigger pull.] Defendant ordered Plaintiff to get up and approach the officers, and Plaintiff complied. The officers could see that Plaintiff was probably not armed, and Defendant ordered Plaintiff to get on the ground.

Plaintiff began to comply, and the officers approached him on either side, each grabbing a shoulder. Plaintiff was on all fours "like a frog on a lily pad" and could not see what Defendant was doing. Defendant testified that he was simultaneously struggling with Plaintiff and trying to holster his pistol. The other officer testified that Defendant was pawing at his uniform coat and having trouble holstering his pistol. All agreed that Defendant's pistol discharged once, sending a .45-caliber hollowpoint bullet into Plaintiff's shoulder. The projectile exited Plaintiff's underarm and lodged in the top of his thigh. The other officer had turned his attention back to Plaintiff, and neither he nor Plaintiff saw the actual shot. Defendant testified that the shot was completely accidental, and even Plaintiff admitted that Defendant looked very upset after the shot.

Defendant thereafter suffered dizzy spells whenever he had to take a call, and was so nervous about drawing his pistol that he never again did so, even when he should have. Defendant soon left regular police work and became an unarmed code enforcement officer. Firearms experts tested Defendant's P220, impacting its sides in the way Defendant described the events, and could not make it fire by any other means than pulling the trigger. The P220 has a decocker, but no manual safety device. If about 13.5 pounds of force is applied to a P220's trigger, it will fire if a cartridge is in the chamber. An internal affairs investigation concluded that Defendant's pistol fired because Defendant had his finger inside the trigger guard.

PROCEDURE: Plaintiff sued Defendant and the City of Conway in U.S. District Court for the Eastern District of Arkansas per 42 U.S.C. § 1983 for violating his Fourth Amendment right to be free from excessive force and unreasonable seizure. Plaintiff admitted that Defendant had probable cause to arrest him, but claimed that Defendant deliberately shot him when he posed no threat of death or serious bodily harm, and that the City's policy of issuing .45-caliber pistols loaded with hollowpoint bullets, but without manual safeties, amounted to a policy of deliberately inflicting maximum harm on arrestees. After discovery, Defendant moved for summary judgment on qualified immunity grounds, arguing that Plaintiff had no evidence that the shot was deliberate. The City moved for summary judgment, arguing that its gun and ammunition policies were meant only to inflict maximum harm on subjects who posed deadly threats.

DECISION: Whether the force an officer used was reasonable depends on the totality of the circumstances, which include the severity of the crime (misdemeanor shoplifting), whether the suspect poses an immediate threat to the safety of officers or others (Plaintiff did not), and whether the suspect is actively resisting arrest or fleeing (Plaintiff was not). A reasonable jury could conclude that no reasonable officer would have shot Plaintiff under the circumstances.

However, the Fourth Amendment governs only intentional government actions. If Defendant's shot was not intentional, then Plaintiff suffered no constitutional violation. Intent is normally a question of fact. In Defendant's favor was his and the other officer's testimony that the shot was completely an accident during attempted reholstering. Against Defendant were the IA finding that he had his finger inside the trigger guard, and the lab tests confirming that Defendant's P220 would not discharge except by trigger action. Defendant's obvious state of upset immediately after the shot and Defendant's subsequent inability to function as an armed police officer did not tilt one way or the other, because these consequences could have resulted from factors other than Defendant's dismay at having accidentally shot somebody. Plaintiff therefore showed that a genuine issue of material fact as to Defendant's intent still existed. QUALIFIED IMMUNITY DENIED as to Defendant.

On the other hand, the City showed good reason for issuing large-caliber pistols with hollowpoint bullets, to wit, so police officers could inflict maximum harm on suspects in deadly force situations. This policy was neither arbitrary nor conscience-shocking. Plaintiff also could not show that Defendant was carrying out any policy or custom of the City if he intentionally shot Plaintiff, nor could the City be liable under respondeat superior if Defendant accidentally shot Plaintiff. SUMMARY JUDGMENT GRANTED for the City.

EDITORIAL: Of course it was accidental! Wonder if it might even have been a fold of clothing that got snagged in the trigger guard as he was trying to holster it. If it did happen like IA said it did, then this was a violation of Jeff Cooper's second and third rules (keep your finger off the trigger, and do not let the muzzle cover anything or anybody you don't want to shoot) of gun safety. Easy enough to violate them in the heat of the moment--but once that bullet is underway, you can't take it back. Why didn't the guy sue the officer for negligence? That would have been more likely to work, although I'm not at all in a position to judge whether the officer was truly negligent or really, really unlucky. It's said there are no accidental discharges, only negligent ones, but I wouldn't say so absolutely. I hope the City of Conway offers the guy a heap big settlement.

I thought we were over the debate about hollowpoint bullets, which ACLU used to claim were cruel and unusual or something. Perhaps the assclowns who complain about hollowpoints would prefer that we go back to hardball bullets that are less likely to stop violent bad guys but are more likely to overpenetrate said violent bad guys and continue on to hit innocent people. But hey, that's in compliance with the Hague and Geneva Conventions, and the people that wrote those documents MEANT well, so they must be good. I hope it's then OK if I shoot bad guys with a 9-pellet buckshot load after the hardballs didn't stop them.

Let this case be a lesson that there are no court-proof weapons. We've all read in the gun magazines and elsewhere that we should leave the cocked-and-locked 1911s and Hi-Powers to Experten because everybody else is just too dumb to remember to wipe off the thumb safety and too accident-prone to be running around with a cocked gun. "For safety reasons" police should carry double-action or double-action-only or "safe-action" Glock-type pistols, without manual safeties so you can fire them just like a double-action revolver. We have just seen how well that philosophy can work! With no manual safety, that trigger is going back if your finger is in the wrong place at the wrong time. Better yet, after it fires, you are running around with a cocked gun and no manual safety, but you are still conditioned to think that because the FIRST shot is DA, you have a safe gun. As Inspector Clouseau would say, "not anymore."

Now if this officer had been issued and properly trained with that horrid "unsafe" 1911, he would probably never even have disengaged the thumb safety in this situation. Even if he had, then he would have been in the habit of re-engaging the thumb safety before holstering, thus possibly saving him from a misplaced trigger finger--and saving his career, and saving the city from laying out megabucks, and most of all saving the poor subject from being shot. Of course, you NEVER totally depend on a mechanical safety and ALWAYS obey gun safety rules, but I'll take all the help I can get. And that, kids, is why THIS lawyer-deputy carries a 1911!--that, and it's easier to hit with than anything else, and the manual safety also might give me a few seconds after a weapon snatch to do something about it. That said, the SIG 220 is a wonderful, accurate, reliable gun that has saved the life of more than one fellow deputy, and the DAK trigger eliminates the cock/decock conundrum. But NO gun confers magic immunity from lawsuits. I'll keep my 1911 as long as I can.

This is as good a time as any to mention that a few months ago on another forum, I pointed out the exact same reasons that a P220 might not always be better than a 1911 in court. I was immediately shouted down with cries of "dumbass" and dire warnings that "you will surely lose your case in court," and the mods accused me of "spouting crap" and threatened to ban me if I ever expressed any more opinions about weapons--because I never know what I'm talking about. Needless to say, I do not populate that forum very often anymore. Funny how neither the mods (who really need to get over themselves) nor anybody else from that forum ever comes over HERE and insults me. They're welcome to, as long as they say why.