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If bad guy breaks into your house and steals your gun, you kind of assume that you aren't responsible for the bad things he then decides to do with that gun. If he steals your gun, then goes next door and robs your neighbor at gunpoint, you assume that there's no way that you are responsible for what he does with that firearm... right?
What if your firearm was easily accessible to the thief? Would that change your view on how responsible you should be for what he does with the gun? What if it was just lying on the couch, loaded (i.e. ready to use in a defensive situation)?
What if the thief was a family friend that you invited over to your house, who somehow got into your bedroom and saw the revolver you keep in your nightstand? Let's say that they take the firearm (without your permission) and then a few days later while in the Olive Garden bathroom, negligently discharge the firearm into someone in the neighboring stall? Are you responsible for that happening, because it's your gun?
I posted about a similar incident that occurred a little over a year ago, involving a 9 year old boy who stole a gun from his mom's boyfriend's house. The boyfriend (Mr. Bauer) kept several firearms readily accessible in his house, and one day, the kid swiped one. A few days later, he took it to school and was fumbling around in his backpack and pulled the trigger, injuring a nearby classmate (who survived, thankfully). (you can read the original thread here)
The State of Washington chose to prosecute Mr. Bauer and charged him with assault in the third degree. Mr. Bauer didn't think that he should be responsible for what the kid did with the gun after it was unlawfully stolen without his knowledge from his house, so he moved to dismiss the charges (before trial began). The trial court disagreed with him, and Bauer appealed to the Court of Appeals (Division 2) in WA.
In a 2 to 1 decision, the Court of Appeals held that the State was allowed to proceed with the third degree assault prosecution. Honestly, the opinion is kind of hokey. The court equated a handgun to a live hand grenade and it reads as if written by people who have no experience with firearms whatsoever. The unfortunate thing about the Division 2 ruling was that it was made in a published opinion which basically means that it is legally binding precedent for people living within Division 2's jurisdiction. This ruling stretched liability for stolen firearms to a new level.
Mr. Bauer appealed to the WA Supreme Court. Our Supreme Court didn't have to accept review, but it did, and today released an opinion reversing the Court of Appeals in a 6-3 opinion (available here). The court's decision is essentially in two parts; first they talk about causation, and second they talk about responsibility for another's actions.
For causation, they observe that:
The court also observed that:
And ultimately concluded that, as far as causation, it was just too much of a stretch given the facts of this case. *Note- this is to criminal liability, not civil liability.*
For being responsible for another's conduct, the court pointed out three ways in which that can happen:
And then stated that:
That's it. Court of Appeals reversed. There are some really interesting points to be taken as far as the criminal aspect of securing firearms. Importantly, I think this case has the potential to stir up a debate in the WA senate about proposed "gun safety" measures about "proper" firearm storage. That wouldn't really affect the causation analysis at all, but it would make someone like Bauer prosecute-able for assault 3 under #2 above. Comments are welcome/appreciated on what you think about the ruling. If people want, I'm happy to go through and add citations to law and/or the opinions.
I should note that, there was a strongly worded dissenting opinion by Justice Gonzalez that was signed off on by two other justices (Fairhurst/Stephens). To give you a taste, it begins with "Douglas Bauer kept multiple loaded guns unsecured throughout his house." And then I want to queue dark scary music because the BIG BAD GUNS that are LOADED are actually kept THROUGHOUT HIS HOUSE. Oh no! I don't want to go into it too much, because I'm tired, but he quotes a bunch of "scientific research" that I am appalled is making it into this opinion. This research is basically as follows:
I am not kidding. This was one of the studies he cites as authoritative and persuasive.
I'll probably go into the rest of the dissent when I get a minute, but it's pretty easy to read and actually likely represents the views of many people in our community (perhaps even this community). I am all for safely securing firearms, as I have children of my own, but I think I'm much better suited to determine how best to store them and use them than any of my legislators.
Link List:
Today's opinion: ***here***
or ***here*** (link to actual opinion at bottom)
Last year's thread about Court of Appeals opinion ***here***.
That thread also contains links to some of the briefing to the Court of Appeals.
What if your firearm was easily accessible to the thief? Would that change your view on how responsible you should be for what he does with the gun? What if it was just lying on the couch, loaded (i.e. ready to use in a defensive situation)?
What if the thief was a family friend that you invited over to your house, who somehow got into your bedroom and saw the revolver you keep in your nightstand? Let's say that they take the firearm (without your permission) and then a few days later while in the Olive Garden bathroom, negligently discharge the firearm into someone in the neighboring stall? Are you responsible for that happening, because it's your gun?
I posted about a similar incident that occurred a little over a year ago, involving a 9 year old boy who stole a gun from his mom's boyfriend's house. The boyfriend (Mr. Bauer) kept several firearms readily accessible in his house, and one day, the kid swiped one. A few days later, he took it to school and was fumbling around in his backpack and pulled the trigger, injuring a nearby classmate (who survived, thankfully). (you can read the original thread here)
The State of Washington chose to prosecute Mr. Bauer and charged him with assault in the third degree. Mr. Bauer didn't think that he should be responsible for what the kid did with the gun after it was unlawfully stolen without his knowledge from his house, so he moved to dismiss the charges (before trial began). The trial court disagreed with him, and Bauer appealed to the Court of Appeals (Division 2) in WA.
In a 2 to 1 decision, the Court of Appeals held that the State was allowed to proceed with the third degree assault prosecution. Honestly, the opinion is kind of hokey. The court equated a handgun to a live hand grenade and it reads as if written by people who have no experience with firearms whatsoever. The unfortunate thing about the Division 2 ruling was that it was made in a published opinion which basically means that it is legally binding precedent for people living within Division 2's jurisdiction. This ruling stretched liability for stolen firearms to a new level.
Mr. Bauer appealed to the WA Supreme Court. Our Supreme Court didn't have to accept review, but it did, and today released an opinion reversing the Court of Appeals in a 6-3 opinion (available here). The court's decision is essentially in two parts; first they talk about causation, and second they talk about responsibility for another's actions.
For causation, they observe that:
"There is no criminal case in Washington upholding criminal liability based on a negligent act that has such intervening facts as in this case between the original negligence and the final, specific, injurious result." (p. 12-13).
The court also observed that:
"Bauer's act of gun ownership [...] is not felonious or criminal. His decision to keep loaded weapons around the house is not, in itself, a crime in this state, either." (p.11-12).
And ultimately concluded that, as far as causation, it was just too much of a stretch given the facts of this case. *Note- this is to criminal liability, not civil liability.*
For being responsible for another's conduct, the court pointed out three ways in which that can happen:
1) "Accomplice Liability." If you and a friend break into someones house and your friend stabs the homeowner, you are responsible for that conduct even though you didn't actually do the stabbing. You were an accomplice to the crime, and liable for the actions of the primary actor.
This is true as long as the accomplice knows that his actions will "promote or facilitate" the particular crime at issue. So if you stand by and watch the stabbing happen, or if you drag the homeowner inside before it happens, or are even a lookout in a car waiting outside, you are on the hook.
2) "When a criminal statute itself expressly makes someone responsible for someone else's conduct." So if the legislature enacted a law that said, "If you leave a loaded firearm unattended in your house and a young child takes it and shoots another, you are liable for that conduct," it would fall under this category of being responsible for someone else's conduct.
3) "Causing an innocent person to do the illegal act." Here, a person is guilty of a crime committed by another when, "acting with the kind of culpability that is sufficient for the commission of the crime, he or she causes an innocent or irresponsible person to engage in such conduct."
Note, this does not require intent, only "culpability that is sufficient for the commission of the crime."
The Court of Appeals and The Supreme Court agreed that the State couldn't charge Bauer with assault under #1 and #2 above, but disagreed on #3 (Court of Appeals believed prosecution could proceed on #3). On this issue, The Supreme Court first stated that (and if it contains too much jargon, hang in there and skip to the second section below):This is true as long as the accomplice knows that his actions will "promote or facilitate" the particular crime at issue. So if you stand by and watch the stabbing happen, or if you drag the homeowner inside before it happens, or are even a lookout in a car waiting outside, you are on the hook.
2) "When a criminal statute itself expressly makes someone responsible for someone else's conduct." So if the legislature enacted a law that said, "If you leave a loaded firearm unattended in your house and a young child takes it and shoots another, you are liable for that conduct," it would fall under this category of being responsible for someone else's conduct.
3) "Causing an innocent person to do the illegal act." Here, a person is guilty of a crime committed by another when, "acting with the kind of culpability that is sufficient for the commission of the crime, he or she causes an innocent or irresponsible person to engage in such conduct."
Note, this does not require intent, only "culpability that is sufficient for the commission of the crime."
"The Court of Appeals's reasoning fails to take account of two things. First, [#3] requires proof that the defendant acted with the same [mental state] as that required for "the crime." We have previously interpreted the words "the crime" [...] very narrowly. We have said that "the crime" means intent to promote the crime that was actually charged, not just any crime. Using that same narrow interpretation here, we find evidence of such [mental state] was lacking.
Bauer may have been negligent about leaving loaded guns out in the presence of children. TC may have been negligent about enabling a gun enclosed in a backpack to discharge. Bauer's negligence was thus not the same as the culpability required for "the crime"; it might have been equally negligent, but not as to the same act, result, and balancing of costs and benefits. Any negligence on Bauer's part thus does not meet the definition of culpability for "the crime" required by [#3]. Since any negligence on his part was not "culpability ... sufficient for the commission of the crime," id., Bauer cannot be liable under [#3]."
Bauer may have been negligent about leaving loaded guns out in the presence of children. TC may have been negligent about enabling a gun enclosed in a backpack to discharge. Bauer's negligence was thus not the same as the culpability required for "the crime"; it might have been equally negligent, but not as to the same act, result, and balancing of costs and benefits. Any negligence on Bauer's part thus does not meet the definition of culpability for "the crime" required by [#3]. Since any negligence on his part was not "culpability ... sufficient for the commission of the crime," id., Bauer cannot be liable under [#3]."
And then stated that:
"[T]here is a difference between "caus[ing]" a particular result and "caus[ing]" another actor to engage in conduct-and the latter is what [#3] requires.
State v. Chester, a case much cited by Bauer, illustrates this distinction. There, we analyzed the meaning of "cause" in a different statute, that criminalizes "caus[ing] a minor to engage in sexually explicit conduct." We held that to "cause" a child to engage in sexually explicit behavior "requires some affirmative act of assistance, interaction, influence or communication on the part of a defendant which initiates and results in a child's display of sexually explicit conduct." The legislature probably intended "cause" to mean the same thing in the statute at issue here, [#3], that criminalizes "caus[ing] an innocent or irresponsible person to engage in [illegal] conduct." But there is no evidence of any such interaction here that would permit a finding that Bauer "caused" TC to take a gun to school.
State v. Chester, a case much cited by Bauer, illustrates this distinction. There, we analyzed the meaning of "cause" in a different statute, that criminalizes "caus[ing] a minor to engage in sexually explicit conduct." We held that to "cause" a child to engage in sexually explicit behavior "requires some affirmative act of assistance, interaction, influence or communication on the part of a defendant which initiates and results in a child's display of sexually explicit conduct." The legislature probably intended "cause" to mean the same thing in the statute at issue here, [#3], that criminalizes "caus[ing] an innocent or irresponsible person to engage in [illegal] conduct." But there is no evidence of any such interaction here that would permit a finding that Bauer "caused" TC to take a gun to school.
That's it. Court of Appeals reversed. There are some really interesting points to be taken as far as the criminal aspect of securing firearms. Importantly, I think this case has the potential to stir up a debate in the WA senate about proposed "gun safety" measures about "proper" firearm storage. That wouldn't really affect the causation analysis at all, but it would make someone like Bauer prosecute-able for assault 3 under #2 above. Comments are welcome/appreciated on what you think about the ruling. If people want, I'm happy to go through and add citations to law and/or the opinions.
I should note that, there was a strongly worded dissenting opinion by Justice Gonzalez that was signed off on by two other justices (Fairhurst/Stephens). To give you a taste, it begins with "Douglas Bauer kept multiple loaded guns unsecured throughout his house." And then I want to queue dark scary music because the BIG BAD GUNS that are LOADED are actually kept THROUGHOUT HIS HOUSE. Oh no! I don't want to go into it too much, because I'm tired, but he quotes a bunch of "scientific research" that I am appalled is making it into this opinion. This research is basically as follows:
"In one study, scientists monitored numerous small groups of 8-12-year old boys in a room that had two water pistols concealed in one drawer and an actual handgun concealed in another. The researches limited the study to boys in this age range because they are a high-risk group for unintentional fire-arm injury. The scientists found that 75% of the boys found the handgun within 15 minutes, 63% of these boys handled it, and 33% of them actually pulled the trigger enough to discharge the weapon. Overall, the results suggest that 8 to 12 year old boys cannot be trusted to refrain from handling a handgun if they encounter one outside the immediate supervision of an adult."
I am not kidding. This was one of the studies he cites as authoritative and persuasive.
I'll probably go into the rest of the dissent when I get a minute, but it's pretty easy to read and actually likely represents the views of many people in our community (perhaps even this community). I am all for safely securing firearms, as I have children of my own, but I think I'm much better suited to determine how best to store them and use them than any of my legislators.
Link List:
Today's opinion: ***here***
or ***here*** (link to actual opinion at bottom)
Last year's thread about Court of Appeals opinion ***here***.
That thread also contains links to some of the briefing to the Court of Appeals.
Last Edited:
