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. . .

What causes crime rates to go up or down?

Crime statistics show that both violent and property crimes dropped from 2008 to 2009, despite higher unemployment and a sinking economy. http://www.nytimes.com/2010/05/25/us/25crime.html?hp This is contrary to what many people believe. In the last year or so, friends and acquaintances would constantly ask me if my business was picking up due to the recession. The short answer is no..

Obviously with crime rates dropping, 'business' would be slower. But even more so, prosecution rates are dropping not only due to the dip in crime but also because state and local governments are cutting back on police, prosecutor and court budgets. My 'business' is far more dependent on prosecution rates than on crime rates. With the cuts in state and local budgets, another effect is felt: more lawyers without work. And when more lawyers are not employed by others, that means there are more of them competing to defend the shrinking pie of cases prosecuted..

But the bigger question is why are crime rates dropping in a recession? You'd think more unemployed people would mean more theft, robbery and other economic crimes plus more frustration, and perhaps more violent crime as well. Yet crime statistics from the 20th century show that the Prohibition era of the 1920's was far more violent than the Depression in the 30's. Experts do not have many well accepted theories on what causes crime rates to rise and fall. Some scholars have suggested such theories as: greater numbers of immigrants, who tend to keep a low profile; as opposed to this, others assert more illegal immigration increases crime rates; public housing policy dispersing the poor may decrease rates; legalized abortion (so fewer unwanted children are born) may decrease; the crack epidemic in the 1980's was thought to increase crime ; and changes in age distribution--e.g., the baby boom in the late 60's and 70's and the boomlet in the late 80's and 90's effect rates of crime..

The age distribution theory is probably the one most accepted. That is, crime rates tend to flow with the number of young males at a given time; the higher the proportion of young men in the population, the higher the crime rates since young men are by and large the biggest group of offenders. In fact, there is no strong statistical correlation between stricter law enforcement and longer sentences and the rise and fall of crime rates. See: http://www.psychologytoday.com/blog/the-scientific-fundamentalist/200808/when-crime-rates-go-down-recidivism-rates-go This just serves to show that politicians who emphasize 'law and order' as an issue may be just blowing smoke..

One interesting theory on why crimes rates might decline during a recession is it pulls families together, and this cohesion inhibits crime. More young people may move back home and are less influenced by their impulsive peers as well. There is also less economic activity in a recession so there is less interaction and opportunity for crime. Ironically, crime rates went up during the prosperity of the 1960's and one theory is that with rising wealth, the havenots and the people left out are more bitter and turn to crime. In contrast, when everyone's boat is sinking with the economic tide, there is more empathy, less jealousy and hence less crime. Of course none of this has been proven..

Finally, there are theories that smarter, better policing may reduce crime rates. For example, declining crime rates in New York City and Los Angeles are often ascribed to increases in the number of police on the streets, better computers for tracking crime, making precinct commanders accountable for managing crime in their districts, and an aggressive policy of searching people on the streets for guns. To be sure, the latter policy may deter crime, but makes it harder to obtain convictions if the Fourth Amendment is violated. Like many other factors, these claims of improved policing are unproven. Another possibility is that the increased use of very long 3 strikes sentences and federal mandatory sentences have cut back on the recdivist population. But that would not necessarily explain the drop from 2008-2009..

At this point, there is no final answer on what causes crime rates to go up or down..