Dep’t of Correction v. Flores




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1Dep’t of Correction v. Flores

OATH Index No. 1855/05 (Sept. 26, 2005), 1aff'd, NYC Civ. Serv. Comm'n Item No. CD06-49-SA (Apr. 24, 2006)


Correction officer charged with carelessness after injuring himself with off-duty pistol. ALJ finds expert evidence sufficient to establish carelessness and recommends a penalty of 20 days' suspension.

______________________________________________________


NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of

DEPARTMENT OF CORRECTION

Petitioner

- against -

JULIO FLORES

Respondent

______________________________________________________


REPORT AND RECOMMENDATION

JOHN B. SPOONER, Administrative Law Judge

This disciplinary proceeding was referred to me in accordance with section 75 of the Civil Service Law. Petitioner, the Department of Correction, charged respondent Julio Flores, a correction officer, with carelessness after injuring himself with his off-duty weapon.

A hearing on the charges was conducted before me on August 12, 2005. Petitioner called a firearms instructor, who indicated how officers were trained to unload a gun. In describing the incident himself, respondent insisted that his efforts to unload his jammed pistol were reasonable.

For the reasons provided below, I find that the charge has been proven and recommend that respondent be suspended for 20 days.


ANALYSIS

This disciplinary case concerns the accidental discharge of a gun on March 1, 2004, outside respondent's residence in New City, New York. Most of the circumstances surrounding the discharge of the weapon were undisputed. At around 11:30 a.m., respondent returned home after working at the Manhattan courts. Outside his door, he paused to unload his off-duty weapon, a Glock 26 pistol, prior to entering the house where he lives with this wife and two children. During the process of unloading the weapon, he accidentally shot himself in the left hand, just below the knuckle of his left index finger.

The local police officers who reported to the scene assisted respondent in getting to a hospital. According to a written report (Pet. Ex. 6) prepared by Detective Juan Rocha of the Clarkstown Police Department, Detective Rocha and other officers responded to respondent's residence at around 11:34 a.m. to find respondent standing in his driveway. Respondent explained to the detective that the accidental discharge of his weapon occurred when he tried to "clear" his weapon and eject a bullet from the firing chamber (Pet. Ex. 6). Respondent reported the incident to his command approximately one hour after it occurred (see Pet. Ex. 7).

The injuries caused by the accident were serious, although not life-threatening. The bullet went all the way through respondent's left hand. Respondent had 50 stitches and remained hospitalized for a week. Since the accident, he has had three surgeries, including one to insert rods into the hand and another to graft bone from his hip to his metacarpal bone. He has another surgery scheduled to repair the joint in his hand (Tr. 60). He was out of work for five months, and did not return to full duty for approximately 10 months (Tr. 61).

Respondent insisted that the discharge occurred when the weapon jammed as he was trying to remove the round of ammunition from the barrel. He tried to relieve the jam by using his left hand to release the levers on either side of the pistol's slide mechanism while pushing on the slider with his right hand. As he did so, the slide "slammed forward" and the weapon fired. Respondent denied that he depressed the trigger (Tr. 59). He insisted that, while he felt "terrible" about the accident, he recognized that "safety is paramount" and believed that he had exercised appropriate safety precautions (Tr. 62).

In asserting that respondent was negligent, petitioner relied upon the testimony of a weapons expert. Officer Jack Echeverri has been a firearms instructor for the Department training academy for ten years. After being qualified as an expert in firearms used by correction officers, he testified that the Department weapons training course incorporates various safety guidelines for loading and unloading firearms. These guidelines require that officers always point weapons in a safe direction, then remove the ammunition magazine, then rack the slide to the rear to eject any round in the chamber (Tr. 19-20). These guidelines apply to the Glock 26 pistol which discharged here, as well as to the standard issue Smith and Wesson revolver used for duty assignments.

Officer Echeverri indicated that the Glock 26 has three types of safety devices: (1) a trigger safety to prevent the trigger from being accidentally pulled; (2) a disconnect feature, requiring the slide to be in the forward position for the gun to fire; and (3) a firing pin safety to prevent any accidental firing due to a hard impact to the weapon, such as dropping it to the floor. The combination of these three safety features prevented the weapon from discharging without the trigger being pulled (Tr. 22-23). Officer Echeverri tested respondent's weapon and found it to be in working order (Tr. 29), as indicated in a written report (Pet. Ex. 9). In particular, he found all three of the safety features to be functioning properly (Pet. Ex. 9).

Officer Echeverri indicated that, when a weapon jams, officers are instructed to first rack or pull back the slide on the pistol several times. If the jam persists, they should remove the magazine, tap it back into place, and then rack the slide again. Prior to disassembling the weapon in the manner described by respondent, officers must first ensure that the weapon is unloaded and then pull back the trigger to disengage the striker (Tr. 20). Officers are instructed to avoid holding the weapon by the trigger or by placing their hand in front of the muzzle (Tr. 26). Moreover, a jammed weapon cannot fire because the ammunition round is lodged in the chamber (Tr. 27). Nor could a jammed weapon fire a shell out the rear ejection port without causing considerable damage to the weapon, damage which was not visible on respondent's gun (Tr. 27-29).

Officer Echeverri's testimony, which I fully credited, cast considerable doubt on the accuracy of respondent's account. According to Officer Echeverri the three safety mechanisms in respondent's gun were in working order. Given this fact, it would have been impossible for respondent's Glock 26 to have discharged without the trigger being pulled, as indicated by respondent. Furthermore, Officer Echeverri established that the disassembly operation described by respondent should never be undertaken with a loaded weapon, because it requires pulling back the trigger. Based upon the testimony of Officer Echeverri, I thus find that, in trying to unload his gun, respondent pulled the trigger with his right hand as his left hand was in front of the barrel. This procedure was in direct violation of accepted safety practice, as embodied in the Department weapons training, and constituted carelessness, in violation of Department rules regarding use of firearms. See Department Rules and Regulations 5.10.060 ("Carelessness in the carrying, handling or safekeeping of personal or departmental firearms, while on or off duty, shall be deemed neglect of duty."); Directive No. 4506R ("All members of the Department who are authorized to possess a personal protection firearm(s) or who have been directed to use a Departmental firearm(s) and are qualified, shall exercise the highest degree of care when handling and safekeeping said firearm(s). Failure to exercise such due care, while on or off- duty, shall be deemed neglect of duty and shall result in disciplinary charges being preferred against the member concerned.").
FINDING AND CONCLUSION

Charge No.B-133/2004 should be sustained in that, on March 1, 2004, respondent carelessly handled a firearm in violation of Department Rules and Regulations 5.10.060 and Directive No. 4506R.


RECOMMENDATION

Upon making the above findings, I requested and received a summary of respondent's prior personnel history. He was appointed to the Department in 1996 and has no disciplinary record. This good employment record should certainly mitigate the penalty.

Respondent's careless unloading of his weapon is unquestionably deserving of a severe penalty. The testimony of Officer Echeverri made it clear that respondent's decision to attempt to disassemble a loaded weapon with his hand over the barrel was in violation of the established weapons protocol and, indeed, foolhardy. Without discounting the serious nature of respondent's injuries, I must observe that the consequences of his negligence could easily have been worse and might have resulted in either more serious injuries to himself or to another person. A significant penalty is called for to impress upon the officer the need for utmost care in handling firearms.

It is evident that respondent's injury has caused him a great deal of pain and distress. Despite three surgeries, he still has some loss of strength and mobility in his left hand. It seems highly likely that this serious physical injury will have at least as much effect as a disciplinary penalty in prompting respondent to be more careful with his weapon in the future. Moreover, the ordeal of this injury is deserving of consideration in arriving at an appropriate disciplinary penalty. As argued by counsel for petitioner, the injury to respondent is offset somewhat by the lost work time caused by respondent's injury, which resulted in detriment to the agency. Nonetheless, I have little doubt that the accident caused far more real suffering to respondent than to his employer, and, for that reason, should significantly mitigate the penalty.

Counsel for petitioner requested a penalty of 30 days' suspension for respondent's careless unloading of his gun. As cited by petitioner, past cases involving negligent discharge of weapons have resulted in similar penalties. Dep't of Correction v. Adams, OATH Index No. 1659/95 (Sept. 25, 1995) (30-day suspension for officer who fired weapon and fled the scene); Transit Auth. v. Stancil, OATH Index No. 645/91 ((Mar. 27, 1991) (20-day suspension for police officer who accidentally discharged weapon and failed to report it); Dep't of Correction v. Pankey, OATH Index No. 302/91 (Dec. 6, 1990) (30-day suspension for officer who accidentally discharged weapon, injured girlfriend, and provided untruthful explanation). I note that the penalties in Adams and in Pankey were aggravated by the two officers' subsequent failure to take responsibility for their negligence: Officer Adams ran away and Officer Pankey fabricated a false account. Since respondent here provided the required notice of the accident, and gave a generally truthful account of what occurred, he is deserving of a lesser penalty.

Based upon all of these factors, I recommend that respondent be suspended for 20 days for the misconduct which occurred here.


John B. Spooner

Administrative Law Judge


September 26, 2005
SUBMITTED TO:
MARTIN F. HORN

Commissioner
APPEARANCES:
ROGER SMITH, ESQ.

Attorney for Petitioner
KOEHLER AND ISAACS, PC

Attorneys for Respondent

BY: LUIS SERRANO, ESQ.



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