GRAND RAPIDS, Mich. (WOOD) — The defense attorney for a Grand Rapids police veteran charged with careless discharge of a firearm has filed a motion to dismiss the case.

“Defendant respectfully requests this Court dismiss this case because the charged offense is unconstitutionally vague and overbroad as applied to the facts of this case,” wrote attorney Mark Dodge on behalf of his client, Officer Greg Bauer.

Dodge is also part of the team representing Christopher Schurr, the former Grand Rapids Police Department officer charged with second degree murder in the April 4 shooting death of Patrick Lyoya during a traffic stop.

In Bauer’s case, the 20-year GRPD veteran accidentally fired his weapon during a high-risk takedown near Cass Avenue and Sycamore Street SE on Dec. 9 of last year.

GRPD officers had set up a perimeter, believing they had cornered a man suspected of stealing a car with guns in it.

As Bauer ran toward the suspect, gun drawn, he said he tripped on the uneven lawn and accidentally fired his gun.

The bullet hit a house. No one was injured.

GRPD later learned it had targeted the wrong car and the wrong man. 

In January, Kent County Prosecutor Chris Becker filed one count of careless discharge of a weapon causing property damage less than $50, a misdemeanor punishable by up to 90 days in jail and a fine of $100.

“It’s carelessness. This was not intentional, this is not malicious,” Becker said when he announced the charge at a news conference. “This was something that shouldn’t have happened, obviously, but it did, and based on all the facts and circumstances that I’ve reviewed, I felt there’s a sufficient basis to file this careless discharge charge.”

DEFENSE: LAW PUTS POLICE IN A ‘QUANDARY’

In May, defense attorney Dodge submitted a motion for dismissal, arguing in part that he’d been “unable to ascertain what the claimed negligent/careless/reckless conduct was.”

“This was approximately 10:30 PM and it was dark outside,” wrote Dodge. “As Officer Bauer traversed through the grassy neighboring yard, he inadvertently stepped into a significant drop in the grass. Naturally, his body clenched up, causing his trigger finger to come off the frame of his pistol onto the trigger resulting in an accidental discharge of his firearm.”

Dodge wrote that he’d consulted firearm experts and police training personnel who would testify that “trips” and “startles” can cause reflex reactions beyond an officer’s control.

He went on to declare the careless discharge statute unconstitutionally “vague and overbroad as applied to the facts of this case,” noting civilians might be deemed careless for performing the same actions police are required to perform.

“In fact, the police… might be deemed negligent if they do not follow the orders and training for that otherwise dangerous conduct. The vagueness and overbreadth of the statute puts police in a quandary of potentially criminalizing conduct that they are ethically trained and ordered to follow,” wrote Dodge.  

Emanuel Kapelsohn, president of The Peregrine Corporation, a law enforcement training and consulting firm, has conducted police firearm training for nearly 40 years and provided expert testimony in 90 trials, both for and against police.

Kapelsohn, who’s also an attorney, declined to comment on the prosecutor’s decision to charge Bauer, explaining such a determination would require an in-depth review of all case facts.

However, Kapelsohn did say police can follow training protocols and still trigger an accidental discharge.

“Police officers are trained that when they’ve got their pistol drawn, but they are not firing, and not wanting to fire, they should keep their trigger finger braced up on the frame or slide of the gun … outside the trigger guard,” said Kapelsohn in an interview with News 8 over Zoom.

While Kapelsohn said that position greatly reduces the likelihood of an unintentional discharge, it cannot prevent “involuntarily muscle contraction” caused by outside forces.

“If … an officer steps in a depression or a hole (and) loses his or her balance, the contraction of the hand muscles may be sufficient to move the finger down into the trigger guard and pull the trigger,” explained Kapelsohn.

PROSECUTOR: JURY SHOULD DECIDE FACTS AT TRIAL

But assistant prosecuting attorney Audra J. Blodgett, writing in response to Dodge’s motion to dismiss, noted the burden is on the defense to prove a statute unconstitutional.

She argued the defense had failed to identify any constitutionally-protected conduct that is criminalized by the statute.

She also addressed the defense’s argument that police might be required to perform an action that would be considered reckless, careless or negligent if carried out by a citizen.

“The statute’s plain language … does not set up a two-tiered system of justice whereby the police can be reckless, careless or negligent in discharging a firearm,” she wrote.

Blodgett went on to point out that “jury instructions regarding negligence require the jury to evaluate conduct ‘under the circumstances as they were at the time'” of the event.

She noted that, among the circumstances in this case, Bauer was participating in a high-risk stop as a police officer and had been trained to draw his gun while running in a way “specifically designed to avoid an accidental discharge of a firearm.”

“Defendant opines that he has experts that will say how the discharge was not negligent, but a jury need not agree with those experts, and instead could find that Defendant having his finger close enough to the trigger and his other actions which caused the discharge of the firearm to happen under those circumstances was reckless, careless or negligent,” she wrote.

Blodgett wrote the negligent conduct is “not a question of constitutionality, but a factual question to be resolved at trial.”

61st District Court Judge Nicholas Ayoub has yet to set a date for a hearing on the motion to dismiss. 

Officer Bauer is currently on restricted duty.

A GRPD spokeswoman told News 8 that a misdemeanor conviction would not prompt an automatic termination.

She said the department makes such determinations on a case-by-case basis.