Can I be arrested for accidentally discharging a firearm? The answer is yes – and no. 

Featured image for "Can I Be Arrested for Accidentally Discharging a Firearm?"

If a firearm has been genuinely discharged by accident, then it would seem you could not be charged with a crime. The difficulty is that an “accidental discharge” is going to be determined by all the circumstances. However, police and prosecutors are far less likely to think the discharge was an “accident,” given the Michigan law. 

Michigan Law On Accidentally Discharging a Firearm

The law regarding discharges of firearms is titled MCL §752.863a, and can be found here. The law states that:

“any person who shall recklessly or heedlessly or wilfully or wantonly use, carry, handle or discharge any firearm without due caution and circumspection for the rights, safety or property of others shall be guilty of a misdemeanor.”

As you can see, the law doesn’t say that “accidentally” discharging a firearm is a crime. In general, if a statute doesn’t include a certain type of conduct, that conduct is not against the law. Therefore, since “accidentally” discharging a firearm is not mentioned in the statute, “accidentally discharging” a firearm is not a crime. 

However, there is a lot of language in the Discharge of a Firearm statute that is confusing and may cover what you think of as “accidental.” In reality, police and prosecutors might not consider your act as accidental, even if you do. 

Breaking the statute into parts makes the crime easier to understand. To be specific, what does “recklessly or heedlessly or wilfully or wantonly,” mean? What is “due caution and circumspection”? What do the “rights, safety or property of others” mean?

Finally, what constitutes Accidental Discharge and what does not?

Decoding the Discharge of a Firearm Statute 

The words “reckless,” “heedless,” “wilful,” “wanton,” “careless,” and “negligent” relate to what the law calls “states of mind,” and they are all slightly different. You need an experienced criminal lawyer who not only knows the differences between the terms, but knows how to use the differences for your benefit. 

Unfortunately, the criminal law regarding “states of mind” crimes is murky and depends on subtle differences. Sometimes, the law itself gives us a definition of “reckless,” “heedless,” etc. The two firearm misdemeanors do not provide definitions. Therefore, we must look at how Michigan courts have defined them.

In general, criminal law punishes only intentional acts. The law does not usually want to punish someone for something they did not intend to do. Although the four kinds of conduct this law addresses are not exactly intentional, they can lead to the misdemeanor charge. You need to know how the law defines them in the context of discharging a firearm.


The law has definite definitions for “wilful” and “wanton”:

 “Wilful” means that the defendant knowingly created the danger that a firearm would be discharged and intended to cause the discharge;

Wanton” means  that the defendant knowingly created the danger and knew what would probably happen when they did it.

The law does not provide specific definitions for “reckless” and “heedless,” because they are “generally familiar to lay persons” that are ordinarily understood. That means that the dictionary definitions of both words will usually apply.    

What Does “Without Due Caution and Circumspection” Mean?

From what we know from courts that have examined the phrase, “without due caution and circumspection” means that the person who discharged the firearm was, “more than ordinarily negligent.” 

Just like the terms “reckless, “heedless,” “wilful,” and “wanton,” “negligent” refers to a person’s state of mind. Michigan’s criminal law defines “ordinary negligence” as, “not taking reasonable care under the circumstances as they were at the time.” As an example of “ordinary negligence,” Michigan jury instructions state that:

“If the defendant did not do what a sensible person would have done under the circumstances, then [he/she] is guilty of ordinary negligence.”

You may have noticed that the law seems to include two states of mind, reckless, heedless, wilful, and wanton conduct that is more than ordinary negligence. The language can be confusing, but a zealous and experienced attorney will be able to tell you how police and prosecutors are likely to view your conduct. 

What Do The “Rights, Safety or Property of Others” Mean?

This phrase directly relates to the phrase above and the two must be read together. What the law prohibits is discharging a firearm in a manner that is more than ordinarily negligent about other people’s “rights, safety, or property.”

If you have randomly or obviously discharged a firearm without considering where the shot can go, police and prosecutors are likely to see your conduct as the misdemeanor discharge of a firearm.

Conduct That Does – and Usually Does Not – Violate the Law

The most common example of the innocent discharge of a firearm is probably the use of a firearm at a firing range. As long as you are lawfully allowed to use a firearm and your firearm conforms to all legal requirements, your conduct is not illegal.

On the other hand, if you engage in target practice by shooting at bales of hay or in an area near neighbors or livestock, you could be charged. The difference is whether your conduct can harm another person or another person’s property. 

What Are The Consequences For Accidentally Discharging a Firearm?

You may have noticed that a violation of the Discharge of a Firearm statute says only that it is “a misdemeanor.” When a statute does not include a specific penalty, then the general law applies.

Generally, if you are convicted of a misdemeanor and the penalty is not further specified, the judge could place you in jail for up to 93 days and/or put you on probation. 

What If I Negligently Discharged a Firearm?

Discharge of a firearm is closely related to another, less serious, misdemeanor called “careless, reckless or negligent use of firearms,” which is discussed in detail here. The differences between these misdemeanors and between misdemeanors/felonies involving the discharge of a firearm are the state(s) of mind of the person(s) who discharged the firearms. 

The Takeaway

The difference between negligently or accidentally discharged a firearm will depend on the circumstances. As stated earlier, the words “reckless,” “heedless,” “wilful,” “wanton,” “careless,” and “negligent” relate to what the law calls “states of mind.” An experienced criminal lawyer will understand the law regarding these different “states of minds.” And they will know how to use the differences for your benefit.

**While we are now taking in-person consultations according to our COVID-19 policy, we will still conduct Skype, Zoom or phone consultations if that is what the client prefers.