A photo taken by a DPS investigator of the scene in Benson.
Arizona State Trooper Joshua Marotto rushed into the hospital room in Benson Hospital’s emergency department, responding both to the calls for help from Trooper Allen Hernandez and the smell of gunpowder that lingered in the air as he entered the ER.
As Marotto entered the room, he saw Matthew Menard, a drunk-driving suspect who had already physically assaulted the troopers who arrested him. Menard’s left wrist was handcuffed to the hospital bed, but in his right, he held Hernandez’s duty weapon, an FNS Longslide pistol.
As he tried to help his fellow trooper, Marotto drew his own pistol – identical to the one Menard was brandishing – and pressed it into the suspect’s chest, yelling at him to drop the gun or he would shoot.
Menard didn’t comply.
Marotto pulled the trigger.
Thinking there must be a jam, he tried to clear the weapon, but his attempts to get his gun to fire were cut short by Hernandez.
“Holster! Holster!” Hernandez yelled, telling Marotto to put away his weapon, as Hernandez had gotten control of Menard and disarmed him.
Two months after the incident in the Benson Hospital ER, DPS would discover a flaw in their service pistols that explained not only why Marotto’s gun failed to fire in a moment of crisis, but also why Hernandez’s gun had gone off during the struggle with Menard – while it was still in its holster.
The discoveries, much like the gun firing in the trooper’s holster, happened in a way that surprised everyone.
Through public record requests, the Arizona Mirror has learned how the agency discovered a flaw in their pistols that could lead to them firing when lightly bumped or not firing at all, and how the agency had to work quickly to remedy the issue.
Last month the Mirror obtained an internal video, showcasing issues the department had discovered with its fairly new service pistol.
In a safety bulletin video released internally in August 2018 and obtained by the Mirror through a public records request, footage is shown of the weapons firing after being bumped or hit.
The malfunction happened when the slide of the gun is slightly pushed back and the trigger and action does not fully reset. This is called being “out of battery.”
When a pistol is out of battery, safety mechanisms initiate to ensure the gun does not fire. However, DPS found that, in some instances when the slide was put back into position, the FN pistols would fire.
DPS also discovered that sometimes the gun wouldn’t fire when the slide returned to its normal position – but if the weapon was bumped or hit, it would fire unexpectedly.
The department began using the FN pistols in 2015.
“If I get your gun, you guys are dead”
The night that started the chain of events that would lead to the eventual discovery of the delayed fire issue started like any other.
Sgt. Brian Summerfield was responding to a call about a collision on I-10.
Summerfield pulled up to see a tow truck and a car that ran over a curb and into a ditch that runs along the right side of the highway.
Menard told Summerfield the car veered out of control and later told DPS that he had been doing repairs on the car and said he thought his tire rod snapped. The tow truck driver even recalled towing Menard the day prior when his car had overheated.
However, Summerfield suspected something else.
He could smell alcohol and asked Menard if he’d submit to a field sobriety test. Menard begrudgingly agreed, stating that they “don’t work” anyways.
DPS would later learn that Menard’s blood alcohol was .419, more than five times the legal limit.
After Menard fail several parts of the test, Summerfield informed him he was under arrest.
Summerfield told investigators that Menard became violent and started resisting arrest, and at one point was trying to get the trooper’s gun. The tow truck driver, an old friend of Summerfield, recalled hearing Menard say, “If I get your gun, you guys are dead.”
Menard denied saying that, telling investigators he simply said he wanted to get some stuff from his car if he was under arrest, but Summerfield slammed him to the ground.
During the struggle, Summerfield kept telling Menard to quit resisting. Menard admitted to struggling with the trooper, because he said he felt he was being falsely detained.
Summerfield pulled out his Taser and tried to use it on Menard’s back, but it had no effect. Then he tried to use it on Menard’s chest and, finally, his leg, all to no avail. By that time, other troopers had arrived and helped get Menard into the back of a cruiser. As they did so, he kept trying to kick them.
Menard began complaining of chest pain and was becoming somewhat unresponsive, so the troopers transported him to Benson Hospital.
Troopers handcuffed Menard’s left arm to his hospital bed in the ER, and while other troopers were working on getting a warrant to get some of Menard’s blood, Trooper Hernandez was keeping an eye on him.
Menard, upset about not being allowed to make a phone call, yanked his hospital bed by his left arm towards the door of his room and began shouting that he wanted to call his wife.
Hernandez approached Menard, and what started as a verbal confrontation quickly escalated and became physical.
“So, he started pullin’ on the bed and tryin’ to walk. So, I told him, ‘Hey, calm down, relax.’ He started yellin’ at me,” Hernandez told investigators in a taped interview.
“At that point, I went into the room, I put my hand on his chest and told him, ‘Hey calm down, have a seat.’ And then he, said something along the terms about, ‘Hey, you want – so are we gonna go – are we gonna go at it?” Hernandez said.
Menard claimed that Hernandez came at him like “Superman” for no reason, but also agreed that he was being belligerent.
Nurse Julie Qashu saw the commotion and ran to the next room. Suddenly, she heard a loud bang as a bullet shot through the wall next to her before going out the door and into a wall near the ER entryway.
Back in the room, both Menard and Hernandez stood still for a moment, both shocked by the sudden gunshot. The silence was brief, and the scuffle resumed. Menard then took control of Hernandez’s gun, an FNS 9 Longslide that had fired in its holster during the struggle.
“I looked and he looked and we had, like, a – a second of we were just surprised,” Hernandez said.
“Scared the hell out of me, too,” Menard would later tell investigators. Menard asked the investigators if Hernandez was OK.
After the gun fired, Hernandez used his radio to request immediate help.
Trooper Marotto was returning from his patrol car to the hospital when he saw that the emergency room appeared to be filled with smoke and staff was running around in fear.
He ran in to see Hernandez struggling with Menard. In the suspect’s free hand was a pistol, and Hernandez was holding his arm down.
Marotto jammed his thumb into a pressure point near Menard’s jaw.
“I have asthma, are you really gonna fuckin’ choke me out right now?” Marotto recalled Menard saying.
The targeted pressure had no effect, so Marotto pulled out his gun and pressed it up against Menard’s chest. He made a quick decision to pull the trigger, thinking that Menard might shoot the gun he had. But because Marotto’s gun was out of battery, it didn’t fire.
Marotto pulled the gun back and before he could fully reset the gun to try again Hernandez had control of Menard again.
Investigators would suggest multiple charges against Menard, including attempted murder. He is expected to enter into a plea agreement.
One of the investigators on the case asked for the guns of both Marotto and Hernandez be tested, given that Marotto’s gun didn’t fire and Hernandez’s had gone off unexpectedly during the struggle with Menard.
Issues with the striker
Originally, the delayed fire issue discovered wasn’t even what was being tested.
DPS was trying to show that Marotto’s gun was functioning properly when it didn’t fire when out of battery.
When a tech with the crime lab was showing investigators in August 2018 how that works with one of their FNS pistols, something else happened.
“When the pistol was placed on the table top, its striker could be heard releasing forward,” a draft report on the discovery of the issue provided to the Mirror states. “This raised the question of whether the pistol would fire a chambered cartridge without having your finger on the trigger.”
Investigators found that a machined notch on the striker, the mechanism that causes the weapon to fire, was causing the trigger not to properly reset. When the gun was jostled or jarred, the notch would bypass other functions in the gun, causing it to fire.
DPS contacted Fabrique Nationale, the gun’s manufacturer, who then flew out a team of people in October to replaced all the strikers in the FN pistols owned by DPS. A test was performed on the new striker, which didn’t have the notch, and DPS was unable to replicate the issue.
“It should also be noted that the malfunction was observed in brand new firearms as well as firearms that had been in service for some time,” the report says.
DPS has said that Hernandez’s gun did not fire because of the striker defect, but was fired by Menard, something he denies. Menard, a gun enthusiast himself, told investigators he knew what a gun would feel like if he was grabbing one.
DPS found several guns that belonged to Menard, who at the time was a prohibited possessor, including an illegal sawed off shotgun.
Initial testing on the FNS pistols was requested in early June, shortly after the Benson shooting. However, a backlog of firearms cases meant that the pistols were not looked at until mid-August.
“There was no indication of a need to ‘rush’ this case,” said DPS spokesman Capt. Jesse Galvez said in a written response to questions posed by the Mirror.
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