Defense in O'Dea case could hinge on rifle defect

Former Portland police chief Larry O'Dea's legal defense against a negligent shooting charge focuses on a rifle design that has been linked to at least 55 instances of injury or death from accidental discharges.

A bullet from his .22-caliber rifle ended the career of former Portland Police Chief Larry O'Dea, wounded a friend, and put him on the wrong side of a criminal prosecution.

Now, in his defense, he appears likely to turn to his weapon — and fault its allegedly defective design for the incident that led to his sudden downfall earlier this year, the Portland Tribune has learned.

In May, word leaked to reporters that O'Dea had been involved in an accidental shooting while on a camping trip in Harney County on April 21, 2015. A group of friends had been sitting in lawn chairs shooting at sage rats when Robert Dempsey was wounded, they told a Harney County Sheriff's deputy who responded to the scene.

O'Dea told the investigator it appeared Dempsey had shot himself while holstering a pistol. But O'Dea later told Dempsey the bullet came from his gun.

The conflicting accounts fueled accusations of a cover-up that led to O'Dea's retirement in June. A media firestorm also sparked an Oregon Department of Justice investigation that led to an indictment of O'Dea for negligent wounding in October.

O'Dea has told people he didn't realize until a couple of days after the incident that it was his gun that fired the shot.

How could this be possible?

As the outline of O'Dea's legal defense emerges, he appears likely to point the finger at a rifle design that triggered a manufacturer's 2014 product warning and has been linked to at least 55 instances of injury or death from accidental discharges.

Asked about the 2014 warning issued for his client's weapon, O'Dea's lawyer, Derek Ashton, said, "I can confirm my client had no knowledge of the product warning prior to this incident."

Ashton echoed the police report account that O'Dea gave to the Harney deputy who investigated the incident — that the off-duty police chief wasn't actually holding the weapon at the time it went off.

According to the deputy's report, O'Dea said he stood up from his chair, put the gun down, and walked a couple of steps to get a drink. Then O'Dea heard Dempsey cry out.

"The gun was not in his hands when it discharged," Ashton said of O'Dea. "I believe he leaned it up against the chair."

The sound of O'Dea's gun going off didn't attract notice because others were shooting at the time, Ashton added.

As for how the gun could be leaning against the chair, then shoot Dempsey with nobody pulling the trigger, Ashton appears likely to point to the weapon itself as the guilty party. The manufacturer has admitted that the gun can go off just from falling over or being bumped.

O'Dea's Winchester model 9422 was named for its caliber, a .22-inch-diameter bullet, and the year it was designed, 1894. The Model 94 lever-action design is instantly recognizable to fans of old Western movies, as the rifle's lever is used to cock the rifle and load a new bullet.

But in October 2014, Olin Corp., which owns the Winchester brand, issued a 'product warning' for the Model 94, including the type carried by O'Dea. It said, "when there is a live cartridge in the chamber, dropping, jarring or bumping the firearm may cause an accidental discharge, even if the hammer is in the safety position."

According to the firm's website, the Model 94 is no longer sold by Olin.

Spokespeople for Olin and its Winchester division did not respond to requests for comment.

In a gun blog, a commenter complained that the "product warning" was not enough: "I cannot believe this is not on a full recall. ... Is Winchester waiting for the deaths to mount up before they do something?"

In 2009, a Pennsylvania man was hunting with his 10-year-old daughter when his Model 94 Winchester fell to the ground. It went off, causing the man to have his leg amputated. His daughter lost part of a finger.

The man's attorneys linked the design to 54 previous incidents of accidental discharges leading to injury or death, court filings show.

In a March 31, 2016, ruling, a federal judge summarized the lawyers' claims that the company "sold the Model 94 even though it knew that it had a propensity to unintentionally discharge. ... Plaintiffs indicate that they have identified fifty-four (54) other cases where there was an injury or death that was claimed to be a result of a Model 94 unintentionally discharging after being dropped, bumped, or jarred, including instances when the gun was in the 'safety' position."

Differing accounts

O'Dea's version differs from that of Dempsey, the man he shot, according to the report completed by the Harney investigator. Dempsey told the deputy he later received a call from O'Dea telling him that when the police chief went back to his chair to pick up the gun, it went off, according to the report. The gun had been jamming and misfiring all day, Dempsey reportedly said.

Still, the Model 94's history of accidental discharges would undoubtedly be used in trial to undermine state prosecutors' claim that O'Dea himself was negligent.

The case may not get to trial.

Ashton recently filed a motion for dismissal, stating that Dempsey asked the state not to prosecute and wants the judge to dismiss the criminal case.