dissenting.
I agree with the circuit court that the May 30,1979, letter of reprimand and Deu-ter’s subsequent violation of Patrol policy as outlined in that letter constituted good cause for discharge under SDCL 3-7-15(5).
I am also of the opinion that the Commission’s treatment of the pistol incident that occurred at the January 9, 1980, hearing in Director Baum’s office fatally infects its findings and conclusions. I turn to Judge Miller’s memorandum opinion for a description and analysis of that incident:
The record also supports the Patrol’s determination that Deuter exercised poor judgment in stress situations. On January 9, 1980, Deuter attended a meeting concerning certain deficiencies in his performance record. Present at the meeting were Deuter, his immediate supervisors and the Director of the Patrol. During the meeting, Deuter pulled a semi-automatic pistol from his coat and threw it onto the Director’s desk, knowing that the gun was fully loaded with one bullet in the chamber. Additionally, the safety mechanism on the side of the pistol was in the off position.
The Commission, in its -findings of fact, determined that Deuter did not display a capricious and reckless disregard for the life and safety of others by his actions. This finding, however, is clearly erroneous, SDCL 1-26-35(5), and is not supported by substantial evidence in the record. City of Brookings v. Dept. of Environmental Protection, 274 N.W.2d 887, 890 (S.D.1979). Every witness who testified about the incident before the Commission, including Deuter and his own witnesses, stated that Deuter exercised poor judgment by throwing the fully loaded pistol onto the Director’s desk. Further, it would defy logic and common sense to hold that such action was not a capricious and reckless disregard for the life and safety of others. The Director of the Patrol testified that Deuter’s conduct also violated the Patrol’s regulations regarding the careless and reckless use of firearms. Thus, the Patrol again had just cause to discharge Appellee under SDCL 3-7-15(5), supra.
*539The majority opinion labels as unfair and unsupported the circuit court’s characterization (in which I join) of the facts pertaining to the manner in which Deuter placed the pistol on Director Baum’s desk. In support of this charge, the majority opinion cites a portion of Director Baum’s deposition testimony. I am content to rely upon the typed transcript of the hearing, as supplemented by the tape recordings thereof, as support for the trial court’s description of the gun incident. Lieutenant Rand testified as follows:
Q. Now, could you show us how the pistol was placed on the Director’s desk?
A. Yes. He withdrew it from his jacket pocket on the back of his chair. He took it out of the pocket and made some statement to the effect that this was in the condition that he had found it in a pickup and basically placed it on the desk in that manner. (Indicating) [And here there is a clearly audible sound in the tape recording of the gun hitting the witness table.]
Q. Where did it end up pointing?
A. At me.
Q. What did you do then?
A. After a short time, I sat there looking down the barrel of the gun, and it made me a little concerned, and I got up and — to check the weapon to see if it was loaded or empty or whatever. I dropped the clip out of it, found the clip to be loaded with six rounds. I pulled back the slide and there was a round in the chamber.
Q. Did this indicate that the safety was off?
A. Yes.
Q. And why would that be?
A. Because if the safety’s on, you have to release the safety before the slide can be pulled to the back.
Likewise, during direct examination Captain Kinney testified, “And at this point, Terry had it in his hand, and he walked over and threw it onto the desk.” During cross examination, Captain Kinney demonstrated the manner in which Deuter placed the weapon on Director Baum’s desk: “The gun was in the pocket of his jacket, that he pulled the gun out of the pocket and he — like that.” (Indicating) [And here again there is a clearly audible sound on the tape recording of the gun hitting the witness table.]
During his testimony on direct examination, Director Baum described the gun incident in the following words:
A. He got up out of his chair and took a weapon out of his coat pocket and came over and threw it on my desk.
Q. Did he say anything while he was doing this?
A. He said something to the effect that this is the kind of thing that we have to deal with down there and that’s fully loaded and one in the chamber, just the way I got it.
Q. Now, could you show us exactly how the weapon was placed on your desk?
A. He just got up and leaned over and went like that across my desk. (Indicating) [And here there is a clearly audible sound on the tape recording of the weapon hitting the witness table.]
Indeed, during this cross examination of one of the other officers who was present during the gun incident, Deuter’s counsel asked, “So, really, the only thing that deals with the gun now is the fact that he tossed her [sic] up on the table where it might go off?”
In view of the foregoing testimony and the audible record of the reenactments, I conclude that the trial court was perfectly justified in using the same characterization of the gun incident as that used by the witnesses who were present — indeed, by Deuter’s own counsel. To restrict oneself to the word “place” in describing the method in which the weapon came to rest on Director Baum’s desk is to leave the inference that Deuter handled the weapon with *540the care that one would bestow upon a Ming vase, an inference that is totally unsupported by the record.
I agree fully with the trial court that it defies logic and common sense to view Deu-ter’s conduct with respect to the gun incident as not constituting a capricious and reckless disregard for the life and safety of others. Indeed, Deuter’s own testimony gives lie to the Commission’s finding on this point:
A. [I] thought that both safeties were on.
Q. Well, even if both safeties were on, were you a hundred percent sure that that gun wouldn’t go off?
A. Is anybody a hundred percent sure that a gun will never go off?
Q. [Y]ou knew there was some chance you were endangering everybody’s life in that office by what you were doing; is that right?
A. A slight chance.
Q. But you thought it was worth it to prove your point?
A. Yes.
It is easy in the safety of appellate chambers to look with equanimity upon Deuter’s temerariousness in throwing the loaded weapon onto Director Baum’s desk. Those who were present at the time, especially Lieutenant Rand, in whose direction the barrel was pointing when the gun came to rest, may be forgiven for not sharing that equanimity. Would any of us long suffer a child of ours to handle a firearm, loaded or unloaded, thus in our presence? A rhetorical question, perhaps, but nonetheless one that should give us pause in weighing the significance of Deuter’s conduct.
In State v. Heumiller, 317 N.W.2d 126 (S.D.1982), we held that the crime of aggravated assault can be committed by the use of an unloaded weapon. How ironic that one can casually toss a loaded pistol onto a desk in a room filled with people and not be characterized as having acted in wanton disregard of the life and safety of others. Condonation of such behavior and disregard of the possible danger resulting from the lack of judgment and self-control that gave rise to the behavior exalts civil service protection to an art form.*
Not only was the Commission’s finding on the firearm incident clearly erroneous, it missed the essence of the significance of the incident — that it represented a palpable manifestation of immature, unstable behavior and constituted the culmination of a series of incidents that caused Director Baum to conclude that for the good of the highway patrol and the safety of the public he had no choice but to discharge Deuter.
That Director Baum was deeply concerned about his responsibilities to his fellow officers and to the public is summarized by his testimony:
My major concern in looking at the case is that when I took the job as Director of the Highway Patrol, I feel that I have responsibility to the members in that organization, to the organization as a whole, and to the citizens of this state. As far as I was concerned, allowing this type of activity to continue or to have the possibility that something of more serious nature might happen would make a direct reflection on the organization, and I had a responsibility again to the people from that standpoint of seeing to it that not one of those persons were harmed or that a fellow officer was not harmed because I didn’t have full control of his actions in a stressful situation.
Not only was Director Baum rightfully concerned about the possible harm to the members of the public, he had the right to be concerned about the danger of liability on the part of the state for any harm that might result from Deuter’s lack of judgment, whether with firearms or otherwise, in the course of his duties. See, e.g., Bonsignore v. City of New York, 683 F.2d 635 (2d Cir.1982), in which the City of New York was held liable for the injuries suffered by the wife of an officer who shot her *541with his off-duty revolver, liability being based on the following rationale:
In this case both the type of harm that occurred and the person on whom the injury was inflicted were foreseeable. The City could reasonably have anticipated that its negligence in failing to identify officers who were unfit to carry guns would result in an unfit officer injuring someone using the gun he was required to carry.
683 F.2d at 638. See also Morgan v. District of Columbia, 449 A.2d 1102 (1982). Cf. Kruger v. Wilson, 325 N.W.2d 851 (S.D.1982), and National Bank of South Dakota v. Leir, 325 N.W.2d 845 (S.D.1982).
The Commission’s decision, and the judicial endorsement thereof, reduces the Director of the Highway Patrol to a deferential minion, forced to seek permission from the Commission to impose condign discipline upon an errant trooper. The South Dakota Highway Patrol is necessarily imbued with some of the attributes of a military organization, the hallmark of which is the need for command discipline and staff responsibility. If we hedge about the Director’s authority with such a dike of due process and civilian review that he is reduced to a functionary, the public may well pay the price in terms of an organization that lacks that internal discipline that is necessary to maintain the esprit de corps that should be the badge of those to whom we have, in the largest sense of the word, entrusted our safety by virtue of their duty to enforce the laws of this state.
Protection against arbitrary, capricious, vindictive, pretextual retaliatory discipline and termination is a laudable goal. Frustration of the exercise of legitimate command authority and discretion necessary to maintain a tightly run, highly disciplined corps of peace officers is quite another thing.
What we said in Appeal of Miller, 283 N.W.2d 241, 243 (S.D.1979), is applicable here:
The Board should not lightly interfere with managerial decisions made by those charged with the responsibility of insuring that the employees of the Department who are entrusted with this authority and responsibility perform their duties with that degree of professional skill and competence that their respective positions require and that the citizens of this state are entitled to expect. We cannot believe that the Legislature intended that the Career Services Act be interpreted and administered in a manner that would have the effect of immunizing employees covered by the provisions of the Act from good faith managerial decisions, based upon good cause, designed to promote the efficient operation of the executive branch of state government.
None of what I have written is intended to denigrate Deuter as an individual. The record reveals that he was zealous and aggressive, perhaps to a fault. Sadly, he lacks the one personal component that is essential in an armed officer — that elusive yet tangible quality which cannot really be taught or learned — good judgment. Trooper Deuter’s problem was well summarized by Director Baum in his testimony regarding the field training officer’s reports:
[A]nd the final analysis, I guess, of the overall report indicated to me through the reports that Terry had problems -in making some judgment calls. One of them was in reference to while he was returning home in his personal vehicle, that he was making stops of violators, and these circumstances indicated that he had a problem with making judgment calls and that his situation should be closely monitored and that if he kept it under control, he would make an exceptional officer. If he didn’t, that he would bust out completely.
Unfortunately, Director Baum’s concern that Deuter might “bust out completely” was proved well-founded by the gun incident. Director Baum had a difficult choice to make. His decision that for the good of the Highway Patrol and the citizens of this state Trooper Deuter be relieved of his duties was a command decision that finds support in the evidence and which should not have been overturned by the Commission nor by this Court.
*542I would affirm the decision of the trial court.
I am hereby authorized to state that Chief Justice FOSHEIM joins in this dissent.
For a fascinating, if discouraging, account of what has happened in the federal civil service, see Reed, Bureaucrats 2, Presidents O, Harper’s, November 1982, at 18.