UCMJ Article 114: Reckless Endangerment,Dueling and Firearms Charges

Make the Government Defend Its Investigation

When we get on the case, we put together a defense so aggressive that it is almost a sin not to call it an offense. That includes testing the investigation itself. Did investigators preserve the equipment, measure the scene, obtain the complete video and interview the people who actually saw what happened? Did an assumption in the first report get repeated as fact without anyone checking it?

A missing measurement or inconsistent report does not automatically win the case. We need to show how it affects a disputed fact, the reliability of a witness or an element the government must prove. When technical knowledge is necessary, we identify the appropriate outside investigator or expert and address private cost or available military funding.

Test the Actual Risk, Not Just the Worst Possible Outcome

For reckless endangerment, “someone could have been hurt” is not the whole legal test. The government must prove that death or grievous bodily harm was likely to result from the conduct. We examine both the chance that harm would occur and how serious that harm would be. A frightening possibility does not answer either question by itself.

That means looking at the actual equipment, distances, barriers, safety measures and sequence of events. Did the government assess the conditions that existed, or assume away a safeguard? Was the equipment available for use, and what would have had to happen for someone to be harmed? Expert testimony may help answer those questions, but the law does not require a precise numerical probability in every case.

No injury is required, and the absence of an injury does not prove the conduct was safe. The defense must address the risk the conduct created. This likelihood requirement belongs to reckless endangerment; the willful firearm discharge offense has its own test, explained below.

Distinguish Recklessness From an Ordinary Mistake

“Reckless” conduct exhibits a culpable disregard of foreseeable consequences to others from the act or omission involved. The accused need not intend to cause the resulting harm or know that the conduct is substantially certain to cause it. The question is whether, under all the circumstances, the conduct was so heedless that it was actually or imminently dangerous to the rights or safety of others.

We examine the duty you actually had, the training and warnings you received, the condition of the equipment and what was happening around you. A safety violation may be relevant, but it does not establish every element of reckless endangerment. The prosecution must prove wrongful and reckless or wanton conduct, not simply that a better decision was possible.

Put the Witness’s Account to the Test

Then, we’re going after the testimony of the witnesses they put on the stand. We don’t care if it is a four-star general who thinks he saw you recklessly endanger someone. Rank does not establish what that person actually saw. We compare the account with the witness’s position, line of sight, first statement, available recordings and physical evidence. Our interest is you and you alone.

The government has to prove the charged offense beyond a reasonable doubt. A trial is not simply a contest over who presents the more convincing picture of your character. We prepare the facts and legal arguments that challenge the accusation and address the evidence that may support it.

Reckless Endangerment

1. 1The accused engaged in conduct.

1. 2The conduct was wrongful and reckless or wanton.

1. 3The conduct was likely to produce death or grievous bodily harm to another person.

Conduct is wrongful when it has no legal justification or excuse. “Wanton” includes recklessness but can describe a more aggravated disregard of probable consequences. A lawful justification must be evaluated against what actually happened; merely calling dangerous conduct part of training does not settle the question.

“Grievous bodily harm” means bodily injury involving a substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of a bodily member, organ or mental faculty. The government must prove the likelihood of death or harm at that level, not merely the possibility of some minor injury.

Fighting a Duel

1. 1The accused fought another person with deadly weapons.

1. 2The combat was for private reasons.

1. 3The combat was by prior agreement.

A barracks fight is not automatically a duel. The government must prove deadly weapons, a private purpose and prior agreement. The conduct may raise other charges, but those requirements cannot be skipped merely because two people agreed to fight.

Promoting a Duel

1. 1The accused promoted a duel between particular people.

1. 2The accused did so in a particular manner alleged by the government.

Examples include urging someone to issue or accept a duel challenge, acting as a second, carrying the challenge or acceptance, or otherwise contributing to the duel. We examine what the accused actually said or did and whether it amounts to promoting a duel.

Conniving at Fighting a Duel

1. 1Particular people intended to engage in a duel and were about to do so.

1. 2The accused knew about the planned duel.

1. 3The accused connived at the fighting of the duel in the manner alleged.

The Manual explains that someone who knows steps are being taken, or have been taken, toward arranging or fighting a duel and fails to take reasonable preventive action thereby connives at it. The defense must examine the claimed knowledge and what preventive action was reasonable under the circumstances.

Failing to Report a Duel Challenge

1. 1A challenge to fight a duel had been sent or was about to be sent.

1. 2The accused knew about the challenge.

1. 3The accused failed to report the facts promptly to the proper authority.

This offense does not require that the duel actually take place. We examine whether there was a duel challenge, what the accused knew, when that knowledge arose and whether a report was made to the proper authority.

Willfully Discharging a Firearm Under Circumstances Endangering Human Life

1. 1The accused discharged a firearm.

1. 2The discharge was willful and wrongful.

1. 3The discharge occurred under circumstances such as to endanger human life.

The Manual describes a reasonable potential for harm to human beings in general. The question is whether the wrongful discharge was unsafe to human life in the surrounding circumstances, not whether someone was actually injured or a particular life was in fact endangered. A willful discharge and a negligent discharge are different offenses.

We examine the firearm’s condition, any inspection or testing, the available recordings, the direction of discharge, the surroundings and what supports the claim that the discharge was deliberate. An unintentional discharge matters to an accusation requiring willfulness, but it does not automatically defeat a separate negligence allegation.

Unlawfully Carrying a Concealed Dangerous Weapon

1. 1The accused carried a weapon concealed on or about the accused’s person.

1. 2The carrying was unlawful.

1. 3The weapon was dangerous.

A weapon is concealed when the person carrying it intentionally covers it or keeps it from sight. “On or about” includes a weapon within immediate reach, even if it is not physically on the body. A dangerous weapon is one specifically designed to cause grievous bodily harm, or one the accused used or intended to use for that purpose.

We examine the object itself, where it was found, how it was covered, whether it was within immediate reach and the legal basis for calling the carrying unlawful. Any claimed authorization must be examined alongside the applicable law or military rule. Finding a weapon does not, by itself, prove every element of concealed carrying.