Out of court

Wednesday, March 14, 2012

Gun in Backpack Case: Parents' Assault Charge is Political

When a child is severely injured by another child's possession of a gun, as happened recently in Kitsap County, some parent is probably at fault as well. However, that does not mean the parent is liable to be prosecuted for assault. The charge of assault in the third degree against the mother and her boyfriend who owned the gun distorts the law and is a political charge.
To be guilty of third degree assault requires a showing that the defendant's conduct caused bodily harm accompanied by substantial pain. In virtually all cases of assault with a weapon, the defendant is the one who wielded the weapon. To be sure, one could be an accomplice to the assault, but that person would need to have aided or abetted the crime of assault by actively encouraging, helping, or assisting the assault in some way. Even the police concede that the parent did not place the gun in the boy's backpack nor did the parent tell the boy to go use the gun on someone. The parent was negligent, even reckless, in leaving a loaded gun on a desk, but in no way did their conduct cause the injury, as criminal cases require causation.
Criminal liability cannot rely on a 'hole-in-the-bucket' chain of events to create liability. If parents can be held to answer for an assault here, then the slope is extremely slippery. For example, is a person committing the crime of assisting a suicide if they forget a legally prescribed bottle of oxycodone is in the family medicine cabinet and a depressed young teen finds it and overdoses on it? Or, if a cook leaves a very sharp kitchen knife on the counter and his known, mentally ill nephew grabs it and stabs someone with it, is the cook guilty of assault, too? No of course not! The cook did not commit the assault as there were intervening events between his act and the act of assault. Similarly, the conduct here--leaving a loaded gun on a desk--could have led to any number of outcomes, some bad and many other inconsequential ones which harm no one.
Causation in criminal cases has two components: legal cause and factual cause. The Washington Court Of Appeals in the case of State v. Christman, 160 Wn. App. 741, 753 (2011) is instructive. There, the defendant provided a friend a few methadone pills at a party and the friend died. The defendant was convicted of a "controlled substance homicide" and his conduct was considered a factual or proximate cause of the friend's death, even though the friend's death was also caused by the alcohol and methamphetamine he got elsewhere. Factual or proximate cause means: in its factual context, as “a cause which in a direct sequence unbroken by any new superseding cause, produces the injury complained of and without which such injury would not have happened."
In the Christman case, the defendant's act of giving the controlled substance (methadone) led directly to his friend's death. In contrast, in the Kitsap case, the parent's negligence in leaving a loaded gun in the house, required the child to find it, pick it up, place it in his backpack in a certain way, take it to school, then slam the backpack down in such a way as to discharge the firearm, and thereby wound the nearby schoolgirl. There are four or more intervening steps required here between the conduct and the end result. It is not unbroken. Obviously if the mother or boyfriend had placed the loaded gun in his backpack to ensure that it would go off at the slightest jostle, perhaps then it might be a factual cause.

Even if one stretches the concept of factual cause to include this conduct, then legal cause should slam the door shut. Legal cause means causation by which the court weighs policy considerations in cases where a defendant's act is so removed and attenuated from the result that perhaps liability ought not attach. If reckless endangerment were charged here, there is a good argument that the parent's conduct recklessly endangered the safety of people by leaving a loaded gun around. However, to say that the parent is guilty of an assault ignores the long history of the specific and well known acts that comprise an assault. In short, the parent did not point, shoot or possess the gun at the time the girl was shot. The parent was not present nor did the parent encourage it or actively assist it. None of the traditional acts constituting an assault were present. The parent's conduct, albeit grossly negligent, is not the conduct that led inevitably to the girl's wound. That is why legal cause also does not exist for an assault charge against the mother or her boyfriend.
In the end the mother's and boyfriends actions are too attenuated for an assault charge to lie. But this particular pair is easy to pick on. Presumably they are poor and uneducated, and both have criminal records. What is more, the prosecutor looks good to the community, as its three-piece-suited protector. This case is in sharp contrast with a more recent one in Marysville. There, a very young child grabbed his father's gun out of the glove box, and shot his sister to death, while they were left unattended in the family car by the parents who were nearby. His father happens to be a police officer. Will he be charged with negligent homicide? That may be the better test case, as his negligence is not as attenuated. He was present, he left the gun loaded and easily accessible, and his supervision of young children was wanting. The chain of events is much shorter. Still, prosecutors are loathe to charge police officers and juries tend to let them off. We shall see. . .

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