Posted on 11/27/2012 7:37:28 AM PST by marktwain
BREMERTON, Wash. -- Washington state appeals court judges had lots of questions for lawyers at a hearing about whether a gun owner should be prosecuted in a Bremerton school shooting that critically injured a 9-year-old girl.
Kitsap County prosecutors charged Douglas Bauer because he owns the pistol his girlfriend's son took to Armin Jahr Elementary. It fired through the boy's backpack, critically wounding Amina Kocer-Bowman in a classroom. Amina spent six weeks in a hospital and endured numerous surgeries for internal injuries caused by the shooting.
(Excerpt) Read more at komonews.com ...
Yeah, those women don’t deserve husbands or boyfriends. They should live on their own with no welfare.
I agree to an extent, but this is not a case of having the right to have the loaded/unlocked pistol, it is a case of not taking reasonable precautions to keep someone without the maturity to fully understand what the ramifications of improper handling could result in. It is also incumbent upon the person to exercise due diligence to keep a child from having ready access. When my grand-kids visit, I put my guns out of sight and out of reach to insure they don't get their hands on them - I keep them loaded and most with one in the tube so it could be a bit of bad ju-ju if one of them handled one. They know I and my wife have the weapons, and have been told to never touch one if they see one, but they're children and their curiosity could make for a tragedy. I remember taking a .22 LR bullet to school when I was about 6 years old. I showed it to some friends and we decided to stand by a tree, for cover, and throw it on the sidewalk to see if we could get it to go off. But for the Grace of God, we didn't "get lucky". And I was raised around guns and in the NRA with my Dad teaching me all the dos and don'ts - I was taught to aim and shoot a BB gun up in the attic with the barrel resting on a sawhorse because the gun was too heavy and I couldn't hold it steady enough to aim it - despite that, I was still a child and prone to "oopsies".
That said, there are a lot of dumb laws that allow people to be sued. Many cities require homeowners to shovel the sidewalks in front of their houses or pay a fine. If a person slips and hurts themselves on a shoveled sidewalk, they can sue the homeowner, where if the walk was un-shoveled, it would be considered an "act of God" and not be subject to suit.BTW - I really enjoy all your posts about gun owners prevailing over the bad guys and other 2nd Amendment topics.
Absolutely, categorically false.
Your assertion makes me responsible for acts of people that I do not control. If a child steals your car, are you then responsible for any damage resulting? We have gone far down the path of making people responsible for the actions of others. No one should ever be held responsible for the bad actions of others. Owning property does not make you liable for what others illegally do with that property.
You are also responsible for the actions of children under your control, but whether this child was under his control seems unlikely and is certainly in doubt.
Sorry but “stolen or not stolen” is not the only question in this case.
If your 10-year-old steals the keys to your bulldozer and then drives it through my china shop, you are liable. REQUISITE INTENT is not required, you failed to control your minor child’s use of your property.
The relationship between this boy and this man is an issue. When you start playing the role of daddy, you start getting some of those responsibilities. Again, the details to determine this are not in the article.
Sorry but “stolen or not stolen” is not the only question in this case.
If your 10-year-old steals the keys to your bulldozer and then drives it through my china shop, you are liable. REQUISITE INTENT is not required, you failed to control your minor child’s use of your property.
The relationship between this boy and this man is an issue. When you start playing the role of daddy, you start getting some of those responsibilities. Again, the details to determine this are not in the article.
Actually, we do put people in jail for being stupid when the stupidity becomes criminal negligence, such as allowing a 4-year-old to run heavy equipment.
Many gang-banger uncles and boyfriends have been put in jail for leaving their loaded pistols unattended with the toddlers (who shot themselves). I presume none of those thugs intended for the toddler to use the pistol.
ever hear of an ‘attractive nuisance’? i found out about it about 35 years ago reading an article in reader’s digest about a family who was sued because the neighbor’s child came onto their property, made sparks by banging rocks together over the gas tank of the car, and the car went kablooey.
seems the car was an attractive nuisance and the family had to pay the dead kid’s family a ton of moolah.
owning a gun is a big responsibility,. if you’re not up to accepting it, then perhaps you should not own a gun.
If that is indeed the story, then it was a gross miscarriage of justice. A real "attractive nuisance" would be an unfenced playground with an open septic tank.
Reasonable man approach should always apply. If I invite neighbor kids onto my property to play, I am responsible for any bad consequences from the loaded 12 ga in the play area. If the neighbor kid, who never comes to play at my house, walks in and goes exploring in my night stand, I should not be responsible for the loaded .357 he gets ahold of. The area between those is gray area for a jury to consider.
my understanding is that if you have a firearm you are responsible for it period. if a child gets it, this happens because you were negligent, especially if it is loaded.
if you take your ‘reasonable man’ thesis, is it reasonable to expect that a child can play without finding a loaded gun in the area where the child plays....
it is the gunowner’s responsibility to make sure that his firearms are away from where children may get to them, which is why there are things like gun safes, etc.
had an incident a few years back where a person unintentionally left a loaded gun in a bedside table, and a two year old got it and killed themselves. guess who got charged?
No more than you are responsible for any other object you possess. If a child comes in your home, starts the stove, heats up some oil, and pours it on their head, you are not negligent. The same applies with a firearm.
The reasonable man theory is just that, what a majority of 12 people determine to be reasonable.
Even accepting your premise, you would have to conclude that it is reasonable to assume that a child isn't a professional locksmith.
Ahad an incident a few years back where a person unintentionally left a loaded gun in a bedside table, and a two year old got it and killed themselves. guess who got charged? Is it reasonable to assume that a 2-year-old that your KNOW is in your home might open drawers? Yes. Is it reasonable to assume that a loaded firearm shouldn't be made assessable to 2-year-old? Yes. Is it reasonable to assume that 2-year-olds that you don't know and don't invite into your home will enter your home? No.
You are setting a standard of liability that no person could ever meet whether it be concerning your toilet or your shotgun.
Many toddlers drown in toilets and buckets.
Are you irresponsible if you don’t lock your toilet lids? No. But you might be if you leave a toddler alone, take a nap, and they drown in your toilet.
Pity!
Regards,
GtG
PS Are there no workhouses?
Of course politicians, as usual, would be exempt...
;-)
Well, this case was local news here. In fact the kid didn’t even shoot the gun on purpose, it was in his backpack. Obviously, there seems to be a component where the dude who owned the guns was incredibly stupid.
Washington state is a “common law” state. The common law shall be the rule of decision in cases unless the legislature has specifically made rules for the subject.
So we go to “criminal liability”. If you ever read any of the Federal statutes, you will see a phrase pop up again and again...
Knowingly, willingly, and voluntarily.
In other words:
Knowingly - the results that occurred were results that might occur and were KNOWN to the accused
Willingly - the results that occurred were DESIRED by the accused, there WAS AN AFFIRMATIVE INTENT
Voluntarily - the accused was under NO COMPULSION OR THREAT to do whatever the act was that achieved the results.
This is pretty much the standard elements of a crime. Failure to prove even ONE of the elements means whatever happened wasn’t criminal.
So, what does that mean in Washington state?
Title 9A RCW
WASHINGTON CRIMINAL CODE
Chapter 9A.08 RCW
PRINCIPLES OF LIABILITY
RCW 9A.08.010
General requirements of culpability.
(1) Kinds of Culpability Defined.
(a) INTENT. A person acts with intent or intentionally when he or she acts with the objective or purpose to accomplish a result which constitutes a crime.
(b) KNOWLEDGE. A person knows or acts knowingly or with knowledge when:
(i) he or she is aware of a fact, facts, or circumstances or result described by a statute defining an offense; or
(ii) he or she has information which would lead a reasonable person in the same situation to believe that facts exist which facts are described by a statute defining an offense.
(c) RECKLESSNESS. A person is reckless or acts recklessly when he or she knows of and disregards a substantial risk that a wrongful act may occur and his or her disregard of such substantial risk is a gross deviation from conduct that a reasonable person would exercise in the same situation.
(d) CRIMINAL NEGLIGENCE. 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 reasonable person would exercise in the same situation.
(2) Substitutes for Criminal Negligence, Recklessness, and Knowledge. When a statute provides that criminal negligence suffices to establish an element of an offense, such element also is established if a person acts intentionally, knowingly, or recklessly. When recklessness suffices to establish an element, such element also is established if a person acts intentionally or knowingly. When acting knowingly suffices to establish an element, such element also is established if a person acts intentionally.
(3) Culpability as Determinant of Grade of Offense. When the grade or degree of an offense depends on whether the offense is committed intentionally, knowingly, recklessly, or with criminal negligence, its grade or degree shall be the lowest for which the determinative kind of culpability is established with respect to any material element of the offense.
(4) Requirement of Wilfulness Satisfied by Acting Knowingly. A requirement that an offense be committed willfully is satisfied if a person acts knowingly with respect to the material elements of the offense, unless a purpose to impose further requirements plainly appears.
So that pretty much sums it up. No intent, no crime. He might be found guilty of criminal negligence, but he is NOT guilty of assault.
Concur that assault requires intent. But leaving dynamite mixed with road flares in your hardware store is still likely to get someone jail time for criminal negligence.
Criminal negligence would be a hard one to prove also.
As soon as prosecution opens his mouth and mentions a little girl getting shot, defense stands up and yells out “Objection! Prejudicial!!”
Somewheres I have a hard-bound copy of Washington state Rules of Criminal Procedure but I’m not worked up enough to dig it out...
If the judge lets the evidence in, defense now has an appeal all the way to the Washington state Supreme Court, possibly to the United States Supreme Court.
Now... - I saw the guys attorney last evening on the news and he seemed like a complete doofus to me so who knows, this case is LOADED with doofuses!
Let us not forget that the real crime here is that a weapon was stolen.
Owning a gun is far less of a problem than owning a car, a swimming pool, or power tools. Owning a gun has far less dangerous consequences than voting, driving, or engaging in casual sex.
Owning a gun is explicitly, constitutionaly, protected, while the other activities and items mentioned above are not.
Was it reported stolen? The girl was shot, apparently seriously. How did this happen? Apparently a minor did something clearly illegal (and stupid).
If my minor child does something illegal, there is a question of whether I, as the reponsible adult, acted in a sensible way concerning their action.
There is not a clear break in responsibility when one's minor child commits a crime, nor is there de facto culpibility. It is a matter to be sorted out.
A person is arguably guilty of criminal negligence if they leave a gun in a public restroom and a kid shoots someone with it (regardless of my intent). If a person allows their child the opportunity to take that same gun to the same restroom, then it can be argued that I failed to safely secure the weapon, by failing to control my minor.
A huge issue in this is defining the relationship between this man and this boy, and after that whether the man acted in a reasonable fashion to secure his weapons.
If this kid were a stranger to him, I'd be in total agreement that having the gun in his home (or car) locked or unlocked, would consitute reasonably securing the weapon. But the kid isn't a stranger, nor an adult.
Fixed.
All for "gay marraige" are ya?? /S
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