How criminally liable are you if someone steals your gun and uses it? New WA Supreme Court Case

Discussion in 'Legal & Political Archive' started by iPleadtheSecond, Jul 17, 2014.

  1. iPleadtheSecond

    New Member

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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:

    "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):

    "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]."​

    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.​

    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: Jul 17, 2014
  2. The Heretic

    The Heretic
    Bronze Supporter Bronze Supporter

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    Assault? No - I would argue that there needs to be direct causation even though the statute uses the term negligence. I don't think the negligence of the adult meet the level of criminal negligence.

    Civil Negligence? Probably.
    Last edited: Jul 17, 2014
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  3. RicInOR

    Washington County
    I aim to misbehave Silver Supporter

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    TL;DR - there is a big difference between someone stealing from you - where that someone can be legally held responsible - and a child having ready access to a weapon.
  4. 8ball

    Quit talkin' and start chalking!

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    Thanks for the informative post.

    I agree, this could give support to politicians and gun control groups who want safe storage laws for WA. While the facts of this case are regrettable, extending it to a Californian style law would be yet another way to make gun ownership more of a hassle for citizens.
  5. GunnyG

    The Highlands
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    Face it: Our skirts are too short, we wear "whore-ish" make-up, and we are inviting and inciting our own sexual assaults. We're to blame.o_O

    Seriously though, ...

    IF (notice how big that "if" is?) they were going to be intellectually honest and consistent, they'd need to press charges on each of the 88 car owners whose car is stolen each day, and subsequently may be used in additional crimes.
    Last edited: Jul 18, 2014
  6. Gunguy45

    Gunguy45 Well-Known Member

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    [sniped for clarity]


    I see this notion in my local newspaper every week: That a criminal who breaks into your locked home is not responsible for the damage the items he stole from you may do, it's only you.

    Because you didn't have:
    A: A gun safe that costs in the thousands of dollars
    B: A brain big enough to tell the cops that your gun had a trigger lock (that takes the average 8 year-old 30 seconds to defeat.) whether it did or not.

    This is current law in a number of states, none of which have lower child-gun accident rates than states without.

    It's the thinking of people who simply don't get the idea that guns are a net plus, not merely a minus.

    If a firearm has NOTHING to say for it other than being an anachronistic remnant of our 18th Century Constitution (Which is the opinion of many) then any restriction you care to name is "Common Sense."

    It's in that whole nasty business of facts and actual numbers that set our foes to slobbering and name-calling.

    "Safe storage" laws do absolutely nothing to promote safety. If they did, then California and Mass. ought to have to lowest rates of accidental gun deaths.

    They don't.

    Tell your friends how stupid it is to require gun owners to use a device that makes their essential defensive firearms useless or be a criminal. (That's the law in Mass and other states) Tell them how this would not save a single life, except perhaps, that of a thief who didn't grasp rules 1&2 as he was stealing your property.
    BoonDocks36 and Caveman Jim like this.
  7. H Ragon

    H Ragon New Member

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    >>"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!"

    what the author and many commenters are ignoring here is the central fact that the gun owner left multiple loaded guns around his house during regular visits from a 9 year old. this would be considered negligent, irresponsible gun ownership by nearly anyone's standards. if you kidnapped Wayne LaPierre, strapped him to a table and injected him with sodium pentathol, even he would agree with this.

    now, were prosecutors arguing that the gun owner was necessarily negligent and irresponsible for not using the gun safety gold-standard of putting his guns in a locked safe with trigger locks in place when the child visited? no they weren't. they were merely arguing that he was negl/irrespon for leaving them around the house when the child visited.

    all this story amounts to is that the prosecutor went for broke on the iffy charge of assault, got some early wins, then eventually lost in the court of last resort. ok fine, so we have better defined the limits of his culpability. but two things that neither the author nor the commenters seem to appreciate:

    (1) the owner was almost certain charged with *some* level of negligence, just not assault

    (2) the final result in the courts was that the prosecution lost on the all-the-way charge, and the owner won

    given #2, it is astonishing how authors like this can come away with the sense that gun owners are "under attack" from the gun-grabbing liberals all over again. the prosecutor lost, the owner won, but the owner was still clearly negligent and irresponsible, which is something even the author can't (and didn't) deny. pro gunners should probably pick their hero martyrs a bit more carefully. the owner in this case wasn't exactly messiah material.
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  8. DuneHopper

    Time Is Now
    Last Time For Everything Bronze Supporter

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    The key in Oregon and Washington is to make sure if your guns are stolen that the thief follows the law and does a background check. After all 594 and 941 were designed to keep firearms out of the hands of criminals. Just let the system work as it should ???o_Oo_Oo_O:mad:
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  9. Caveman Jim

    Caveman Jim
    West of Oly
    Springer Slayer Silver Supporter 2016 Volunteer 2017 Volunteer

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    Not every gun owner is as negligent as Mr. Bauer (he should have had an active brain cell in his north head, not the south one) . I do see new talking points and legislation lobby for laws to prosecute gun owners for not locking up ALL their guns at all times thus defeating the self defense purpose of said gun owners....
    Subjects are not smart enough nor able to make conscientious decisions as law abiding gun owners about guns and gun storage.... This is the a$$anine thinking of the rabid leftist gun hating liberals of this century and other then genocide of said vermin we must defeat them on the street by telling the truth of their mad agenda!!!
  10. PiratePast40

    Willamette Valley
    Well-Known Member

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    You sure have jumped to a bunch of conclusions here. Not going to cover all of your rantings, but let's just touch on a few:
    now, were prosecutors arguing that the gun owner was necessarily negligent and irresponsible for not using the gun safety gold-standard of putting his guns in a locked safe with trigger locks in place when the child visited? no they weren't. they were merely arguing that he was negl/irrespon for leaving them around the house when the child visited.
    You're making things up - Bauer was charged with assault in the first degree.

    all this story amounts to is that the prosecutor went for broke on the iffy charge of assault,

    Prosecutors work for the taxpayers, they are not hired to pursue their own agenda. They are supposed to know the law and prosecute real crimes, not pile on charges for their crusade. If they wanted to go after him for negligence, they could have. And would have probably won. But instead, they chose to pursue their own agenda.

    pro gunners should probably pick their hero martyrs a bit more carefully. the owner in this case wasn't exactly messiah material.
    Not a single person on this forum made this guy out as a hero. Again, you're making it up from your own imagination. It's a bit like the black lives matter folks making up the "Hands up, don't shoot" slogan. Stirring up crap about something that never happened.
    Your response has the smell of something that was made up far in advance of this forum post. Looks like you pasted it here, as an attack on forum members, without regard to any of the facts or opinions expressed here. Why don't you go bother someone else with your nonsense?
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  11. P7id10T

    West Slope
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    Had to read that one twice to make sure I understood your language. I added the numbers.
    While I'd like to believe #1, unfortunately there are too many examples of DAs / Prosecutors trying to make names for themselves.
    Number 2: unfortunately there are too many who don't know the law significantly better than a man on the street.
    Agree with #3.

    While the OP's post is informative, the lesson I see here is KEEP YOUR GUNS SECURELY AND SAFELY TUCKED AWAY FROM IDIOTS AND CHILDREN. The statutes on criminal negligence seemed clear to me last time I read them.
    Unfortunately, IF you were a stupid, unlucky b4stard and have a child take and harm using one of your firearms, your defense would be costly. Why compound stupidity?​
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  12. mortre

    Yelm, WA
    Active Member

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    I wonder why the parents of the child that stole the gun, took it to school and shot his school mate weren't charged with anything....
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  13. CameronB

    CameronB New Member

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    I don't think you should be held responsible for what a criminal does with your illegally obtained items, no.

    If someone steals your car, are you responsible for them driving under the influence, recklessly, hitting and possibly killing other people? No.

    Does it matter how easy you make your car to steal, up to and including leaving the keys in your ignition? No.

    If you have alcohol in your house and your child(ren) steal it to drink illegal, should you be help responsible? I certainly don't think so.

    Now don't get me wrong, I understand that firearms are a much different thing entirely, and I think that at the bare minimum that the person in this case should feel like an idiot and feel like bubblegum for not keeping his firearms secure. But I do not feel like there should be any criminal charges filed against him.
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