By Massad Ayoob
A well-trained, experienced and gun-savvy cop experiences an unintended discharge — resulting in a severe injury and massive lawsuit.
Demanding circumstances sometimes collide with our standard rules of gun safety … “accidental” vs. “negligent” isn’t as clear-cut as you’d think. Light trigger pulls are for target guns, not duty and defense weapons.
You’re a veteran police sergeant and firearms instructor, chasing two suspects in a stolen pickup truck. You see them squiggling around in their front seat, as if reaching for weapons — and suddenly, the driver slams on the brakes.
You’re on high-level alert now. Your Ford CVPI (Crown Victoria Police Interceptor) has long since become an extension of yourself. You manage to avoid rear-ending the stolen vehicle, and pull up alongside, where the side of your vehicle may at least block the driver from making an escape on foot. You know you have to get your vehicle into Park before exiting, and you have to get out of your patrol car swiftly. You also know the two felony suspects may already have armed themselves with deadly weapons.
And … you have to deal with all these things simultaneously.
Your brain does what survival instinct has wired it to do. You go into automatic pilot, trying to do everything needing to be done. Your eyes are on the threat — the two dangerous felony suspects are parallel to you on your immediate right. Your world seems to go into slow motion and like a majority of people in such a situation, your brain is gathering and processing information much faster than usual and it seems time has slowed to a crawl.
And, in achingly slow motion, you suddenly see the glass of the passenger side window you’re looking through frost over in a haze of cracks, and then fall away in a crystalline shower. You can hear the glass break, strangely enough, but you never hear the gunshot inside the closed automobile, and you realize you have reflexively drawn your Glock .45 from its Level I thumbbreak holster … and it discharged through the window.
You’re out of the patrol car now, rounding the front. Your own dashcam will show you holding your service pistol properly, your trigger finger “in register” extended along the frame, completely clear of the triggerguard area. The driver surrenders at gunpoint, and you take him into custody. In the right front seat, bleeding from his head, the other suspect has slumped to his left, unconscious.
The driver cries, “Why did you shoot my friend?”
And you hear yourself answer, “It was an accident.”
The Whole Picture
You’re no Barney Fife. You’re Sgt. Jeff Williams, a cop of 17 years — now almost 13 years in your current job. You serve the city of Tomball, Texas, a Houston suburb with some 12,000 residents and a day population of more than 70,000, due to the strong presence of medical and oil industries. You are a firearms and tactics instructor for the 45 sworn officers of your department, a certified Glock armorer and a highly-trained gun expert by any standard.
The wounded man, Eddie Santibanes, was found next to a sheath knife he had taken from the glove compartment during the moments you observed him furtively moving. He had been struck in the left side of the head by a 230-gr.
Winchester SXT .45 ACP JHP bullet. He would survive, but with profound physical disabilities due to brain damage: a colostomy bag for life, and cognitive impairment similar to a severe stroke victim. Described by cops who knew him as a “wannabe gang member,” he’d later find ways to commit misdemeanors despite his handicap. He would also become the plaintiff in a massive lawsuit against the involved department, Santibanes v. Tomball, Texas.
How did it all occur? Judge Kenneth Holt, who reviewed the evidence when considering whether to dismiss the suit on a motion for summary judgment, determined the facts to be as follows:
Sergeant Williams is a police officer employed by the City of Tomball (“the City”). In the late afternoon hours of March 31, 2006, while on duty in an area near Highway 249, he was alerted via police dispatch to be on the lookout for a green, short-wheel base, GMC-model truck with dark-tinted windows, which had recently been reported as stolen. The dispatcher provided the location and time of the theft, as well as the truck’s license plate number.
Responding, Sergeant Williams positioned his marked patrol vehicle along Highway 249 to observe passing vehicles.
After several minutes, he spotted a vehicle traveling southbound matching the description of the stolen truck. Sergeant Williams proceeded onto the thoroughfare, and positioned himself some distance behind the truck. He confirmed the truck’s license plate number matched the stolen truck. He didn’t activate his emergency overhead lights at this time. Instead, he proceeded to follow as the truck turned onto Boudreaux Drive.
Sergeant Williams alleges by this time, he could observe two occupants in the truck. He also asserts the occupants engaged in furtive movements, suggesting to him they were indeed aware of his presence. Once on Boudreaux Drive, he activated his patrol vehicle’s dashboard video camera.
As Sergeant Williams continued to follow, the truck turned left onto Berry Hill Drive. At this point, Sergeant Williams activated his overhead lights. The truck slowed in response and proceeded toward the right shoulder of the roadway. As the truck came to a complete stop, Sergeant Williams hurriedly maneuvered his patrol vehicle to a position near parallel to the driver’s side of the truck. In the course of making this move — and before his own patrol vehicle had come to a complete stop — Sergeant Williams had unholstered his firearm and pointed it in the direction of the truck’s occupants.
Immediately after commanding one or both of the occupants to “get your hands up,” a single round discharged from his Glock, shattering the patrol vehicle’s passenger side window, and striking the plaintiff, who was a passenger in the truck. Police backup units hadn’t yet arrived, as approximately 10 seconds elapsed from the time the vehicles turned onto Berry Hill Drive and the time of the shooting. Sergeant Williams immediately reported the shooting and requested EMT’s and Paramedics. He then proceeded to take the driver into custody. As a result of the discharge from Sergeant Williams’ weapon, the plaintiff sustained a non-fatal gun shot injury to his head.
Reconstruction indicated, without realizing it, Sgt. Williams had been reaching over his steering wheel with his left hand to put the Crown Vic in Park, something he’d never done before. Apparently his subconscious — knowing it was imperative to bring the vehicle to a solid halt — had decided this at the same time he was reflexively drawing his service pistol against the great danger which now existed on his immediate right.
Long ago, the noted physiologist Dr. Roger Enoka determined unintended discharges like this tended to involve spasmodic movements associated with loss of balance, startle response or interlimb response. The latter is a sympathetic grip: when one hand closes forcefully on something (as the sergeant’s left hand did with the unaccustomed movement of the gearshift lever), the other hand sympathetically closes, as the fingers of his dominant right hand including the trigger finger did on his Glock 21.
Cops are taught not to do two things at once with a gun in their hand for just this reason. After the NYPD experienced several accidental discharges, some even with double-action revolvers, when a patrol car came to a sudden halt while a gun was drawn inside, they emphasized officers shouldn’t draw until they were out of the vehicle. Unfortunately, the actions of the suspects in this case forced Sergeant Williams into what is called an exigent circumstance, an immediate and extreme life-threatening emergency.
What the Common Law calls the doctrine of competing harms — also known as the doctrine of necessity or the doctrine of two evils — allows a cop (or, a law-abiding citizen for that matter) to break a rule if, within the totality of the circumstances, it’s clear following the rule would cause more injury to innocent people than breaking it.
The law enforcement entities and the DA’s Office who investigated this shooting understood this, clearing Sergeant Williams of any wrongdoing in the shooting of Eddie Santibanes. However, given the civil lawsuit standard of proof of preponderance of evidence is much less than the standard of beyond a reasonable doubt in criminal case prosecution, this exoneration was no bar to the lawsuit. What happened next, in the civil court arena, is a lesson for us all, police or “civilian.”
The defense, the lawyers for Williams and Tomball PD, requested a motion for summary judgment to excuse them from liability and kill the case. Judge Holt, who was quoted above, determined while there were many good reasons to dismiss, he couldn’t do so for two reasons. One was some of the Sergeant’s testimony was at odds with the facts. The other element, which turned out to be huge, was Sgt. Williams had retrofitted his privately-owned, department-approved Gen3 Glock 21 pistol with a 31/2-pound connector.
Immediately after the shooting, Williams told investigating officers he thought his left foot was on the ground outside the car, and his left hand on the steering wheel, when the single shot was fired. It turned out his hand had actually been on the gearshift lever, and his foot hit the pavement a moment later. Police psychologists and veteran homicide investigators know human memory sometimes recalls things out of sequence after particularly high-stress events, but some plaintiffs’ lawyers either don’t know or ignore it.
One of the first questions investigators asked Williams was if he had “modified” his Glock 21. He answered he hadn’t. It turns out he retrofitted the gun with a steel recoil spring guide, an oversize slide stop lever … and the 31/2-pound connector from another Glock he owned, a Tactical/Practical model.
Later, in deposition (pre-trial testimony under oath) Williams explained the misunderstanding. To him, “modifying the gun” meant cutting springs, or something which would radically alter the gun’s function from what its designers intended. The oversize slide stop lever is standard on many Glock pistols, and is ordered on every one of the 10,000 or so Glocks issued by the FBI. The metal spring guide rod was simply a more expensive aftermarket part intended to assure reliability and longevity, and could in no way impair function or cause an unintended discharge. Plaintiff’s counsel understood all those things, and wisely did not harp on them.
The lighter trigger pull, however, was another story. What makes the gun easier to shoot intentionally makes it easier to shoot unintentionally, and it would be foolish to think the other side in a legal case wouldn’t jump on this.
Glock came out with the 31/2-pound connector in the late 1980’s with their first “target pistol,” the 17L. It has since been standard (for shipment to gun shops, not police departments), on their 5.3″ barrel Tactical/Practical models, the G34 and G35. Geared for tactical matches and practical shooting matches, the 9mm G34 became the dominant pistol at the IDPA Nationals and the .40 caliber G35 became hugely popular in USPSA competition.
However, what many people missed, including Sgt. Williams, was these guns were listed in the Glock catalog and website under “sport” — not “duty” or “self-defense.” It has always been Glock’s policy when police departments order these guns, they’ll be shipped with the standard 51/2-pound connector.
In reviewing Sgt. Williams’ deposition by an aggressive plaintiff’s lawyer, I couldn’t help but notice the plaintiff’s attorney always called it “31/2 pounds,” the original designation, which it did in fact measure on earlier models when measurement was taken from the toe, or bottom, of the pivoting trigger. Sgt. Williams, correctly I think, always called it “41/2 pounds,” which is what it measures from the center of the trigger, where the finger actually lies. It’s a leverage thing: both are technically correct. However, while Glock later changed the designation from 31/2 to 41/2, it’s the exact same part, and still forbidden by Glock for duty/self-defense pistols.
Williams doesn’t recall being given this warning in a Glock armorer’s class. I have no reason to doubt him. While most Glock armorers do remember it, some I’ve talked to don’t. It may be their particular instructor/trainer simply left it out, or it may be what adult education teachers tell us: We only remember a small percentage of what we hear in a class, as opposed to what we feel and experience. The 51/2-pound minimum pull weight for duty/defense Glocks remains nonetheless in company policy, and the policy carries incredibly powerful weight in court when opposing counsel is trying to show that you are negligent.
The Camel’s Back
A review of Judge Holt’s ruling, which can be found online at www.leagle.com, makes it clear the “hair trigger” issue raised by plaintiff’s counsel was the straw that broke the camel’s back, and led to the ruling that instead of being dismissed, this case would have to go to trial. Some $200,000 in legal fees had already been accrued by the defense, according to Tomball Police Chief Rob Hauck, and defense lawyers estimated it would run another $200K before trial began.
Having spent more than 20 years on LAPD, much of it in charge of the elite Metro Unit and SWAT team and seeing where civil lawsuits arising out of shootings could go, Hauck signed off on a $250,000 settlement to end the matter. He undoubtedly saved his community a great deal of money in doing so.
At the end of the day, one might say switching a 31/2-pound Glock connector out of a Tactical/Practical and into a G21 cost nothing. But, in this case, it cost almost half a million dollars, and could have cost a great deal more.
The law doesn’t recognize any such thing as a “justifiable accident.” An unintended discharge is, at most, “excusable,” meaning it shouldn’t have happened, but it could have happened to any reasonable, prudent person in the same situation, knowing what he or she knew. This was, in essence, the finding of the criminal justice system after Jeff Williams unintentionally shot Eddie Santibanes. The felonious actions of Santibanes and his accomplice at the wheel were the true proximate cause of the injury Santibanes suffered.
Williams is proof you can come back from a disaster like this. Today, he is the lead firearms instructor and rangemaster for his department. He could have lied and said he fired intentionally based on the furtive movements inside the stolen car, but he didn’t, and his honesty earned him much. A good cop remains on the street, training what are now 50 other good cops — all of whom carry Glocks.
Sgt. Jeff Williams and Chief Rob Hauck will be the first to tell you: they all have standard factory-installed 51/2-pound triggers.
The philosopher George Santayana said, “those who do not learn from history are doomed to repeat it.” The history on point here is Santibanes v. Tomball, Texas.