Washington State is generally a quiet place with a court system which gives more deference to legislation than some, which is why it is interesting that they may have now come up with an additional possible sanction for the damage done by (outrageously) careless gun owners. This particular situation is new to me and therefore being diaried, although it may not be new to some or all of those who follow these issues closely.
The case discussed below is at the intermediate appellate stage of pretrial proceedings, which means it can be undone by the state's highest court if and when appealed (the opinion was issued today), and at a very early state in the proceedings, what in most states is called the motion to dismiss before the defendant answers and before the trial, so it is not the final word.
It is, however, noteworthy despite that for how it deals with the situation of an adult so careless of the loaded firearms in his home, that when a nine year old takes one out of the house without permission and without detection and to school and manages 'by accident' (dealt with as 'reckless endangerment' as to the child), to have the gun injure another child at school, the adult whose gun was involved is separately prosecuted for a felony involving a weapon.
The adult in this case, one Bauer, in this published decision , State v. Bauer, No 43211-0-II, filed March 8, 2013, Washing State Court of Appeals, Division II was arrested and prosecuted for Third Degree Assault, a Class C felony which depending on his prior record as reflected in the number of 'points' he has, can land him in jail from one month to five years, and a ten thousand dollar fine.
The statute in question RCW 9A.36.031(1)(d), requires the state to prove that Bauer "with"criminal negligence caused bodily harm to another person by means of a weapon." The victim was the child shot at school.
This is one of the rare criminal statues where 'criminal negligence' is the core conduct which gives rise to the assault charge. A great deal of the discussion in the case turns on the peculiarity that 'negligence' is not necessarily an affirmative act, but the words appear in the statute. In this case the criminal negligence appears to be leaving loaded firearms around where a nine year old can take one without being detected, although he was detected the same weekend taking money.
In this case, Bauer is, according to the decision the boyfriend of the mother of a child who lives elsewhere but occasionally visits the Bauer household, not the only child in this arrangement. The regular legal guardian of the children did now allow guns in his house.
According to the decision, Bauer had in his household a variety of unsecured but loaded weapons, kept in various rooms of the house in which children could be without being in the presence of any adult, especially Bauer, the owner of the weapons. The children testified that they knew about the various guns about the house. The reporting of the case found one next to the computer, one under the bed and one in the dresser of the parents' bedroom, a room in which the children often slept when present and were allowed access to without supervision, one under a couch, and one in a glove compartment of the family car. Ammunition was also found, but the loose ammo apparently did not figure materially in the case.
The adults had told the children not to touch any of the firearms because they were loaded.
On the weekend in question, the child at issue removed a gun from the Bauer house, whose absence was not noticed by the adults until the shooting, and was known by Bauer to have removed money apparently on the same weekend from the glove compartment of the car, a location where a gun was reportedly kept. The money's absence was discovered but not the gun's. Supposedly the actual gun in question came from the dresser.
The taking was not detected at the time nor was the child taking it to school in his backpack, and doing something which caused it to go off and wound another child.
The interesting part of this case is that criminal assault charges are being prosecuted for
what is essentially the failure of the adult who owned the guns, Bauer, to keep them sufficiently secured from small children that none of them could have without his knowledge and action , removed one from the house in loaded condition, and/or failing to check the possessions of the child as he left given there was also a theft of money, and thereby creating the opportunity for the child to take it to school and injure another child.
The court quotes the statutory definition of 'criminal negligence' as "A person is criminally negligent or acts with criminal negligence when he or she fails to be aware of a substantial risk that a wrongful act may occur, and his or her failure to be aware of such substantial risk constitutes a gross deviation from the standard of care that a resonable person would exercise in the same situation."
When the case began Bauer's counsel brough what is WA is called a Knapstad motion, elsewhere called a motion to dismiss, which requires a criminal charge to be dismissed before trial if there are no material facts in dispute, and those undisputed facts don't establish a prima facie case of guilt. This decision is Bauer's loss on appeal on that motion. If he does not further appeal, Bauer will go to trial by jury on the charges, with this decision shaping the charge.
The core of the argument was that 'causes' in the statute as in "criminal negligence which causes bodily harm...." may or may not need to be an affirmative act done by the defendant charged. but the decision of the Division II court of appeals was that in the way it was argued, it did not necessarily require an affirmative act, since the version of Assault III here at issue is one of criminal negligence. The court majority said that 'in a criminal negligence case, the State must show that the defendant's actions were at least a gross deviation from what a normally careful person would have done." and "But for the act of the Defendant, the harm would not have occurred." The vigorous dissent is also included in the link.
What is interesting here is that this is apparently nearly a case of first impression in WA, a state with a great deal of rural area and hordes of hunters, and households with children,, and one which distinguishes between teenagers, including one who used a rifle not as a gun but as a bat, in WA, and nine year olds, and that it attaches criminal sanctions to a situation in which it might not have occurred here to be included.
The case arises in Kitsap County WA, an area near but not in the direct penumbra of ultraliberal Seattle, where there are a number of military facilities, producing both working and retired knowledgeable gun owners, from whom any jury will be drawn.
I am diarying this case here for discussion, both for the criminal consequence for the grossly negligent parent, and for your thoughts on both the matter of the court acting in this manner on this statute, and the standards of care DKos gun folk on all sides think is reasonable for a parent under these circumstances, and criminally sanctionable if not adhered to. I concede that I was surprised when I saw this matter turn into a felony matter for Bauer, although the statutory text in question antedates this matter by some degree.
The decision also contains discussion of why the court did not think the actions of the child did not as to Bauer constitutute an intervening cause which cut off his liability, as the child might not have taken the gun to school or fumbled with it in such a way that it went off if he did.
Those of you who choose to comment please note that I am treating this as a householder matter, no flaming insults, no meta, link to your written sources if you have them, respond please to another's comments and not his or her alleged character or comments in matters outside this diary, .....the usual.