People v. Olivieri, 2016 IL App (1st) 152137 (August). Episode 215 (Duration 8:18)

Insufficient evidence to prove reckless discharge of a firearm by this conceal and carry permit holder; SNSR wins the day.

Facts

Eight weeks after his conceal and carry permit is obtained, defendant fires his gun in his home. Opps.

It goes through the wall and into his neighbor’s kitchen (they shared a wall).

He told police his finger just twitched and that he had no intention to shoot the gun. For some reason he had clicked the hammer back to empty it even though he didn’t have to do that.

Reckless Discharge of a Firearm

To sustain this conviction for reckless discharge of a firearm, the State must prove defendant discharged a firearm in a reckless manner that endangered the bodily safety of an individual. 720 ILCS 5/24-1.5(a).

Further, “A person is reckless or acts recklessly when [he] consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, described by the statute defining the offense, and that disregard constitutes a gross deviation from the standard of care that a reasonable person would exercise in the situation.” 720 ILCS 5/4-6.

An accident is not to be equated with recklessness.

It Was An Accident

The reviewing court said that defendant clearly had been through training.

The record showed that he placed live rounds in the pistol when he went for his walk. On returning, he placed his pistol on the kitchen counter, and went to the bathroom.

Afterwards, he pulled the hammer back to unload the pistol and look at the cylinder, which he acknowledged was a mistake because he could not open the cylinder to unload the pistol if he pulled the hammer back.

Then, by an involuntary movement, which he described as a “twitch” made without conscious consideration, his finger squeezed the trigger and fired off a round.

Sympathetic Nervous System Reaction

This was clearly an example of SNSR. Some times some type of excitement, jarring, or mental condition can cause the trigger finger to actually squeeze the trigger and fire off a round, without the control of the individual.

This is called a sympathetic nervous system reaction (SNSR).

Law enforcement had discovered the condition and changed their training methods because of it.

Conviction Overturned

The evidence showed that defendant accidentally pulled the trigger while attempting to unload the pistol to make it safe. The reviewing court said the evidence did not support the trial court’s finding that Olivieri acted recklessly beyond a reasonable doubt.

Notably, defendant was not drunk while he was handling this gun and certainly did not intentionally point it at a person and pulled the trigger.