WA Div. 2 Court of Appeals: Gun Owner can be Charged with Assault after Gun Stolen

Discussion in 'Legal & Political Archive' started by iPleadtheSecond, Mar 9, 2013.

  1. iPleadtheSecond

    New Member

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    This case was just released yesterday in the Division 2 Court of Appeals in Washington. It's a published case and is a big deal for gun owners. I want to make sure you all know about what's going on here.

    The short version:

    Basic Facts
    • Defendant Bauer keeps several guns loaded around his house for personal defense. The guns are accessible to children, which he does not have.
    • His girlfriend comes over with her 9 year old son.
    • 9 year old son steals one of Bauer's handguns.
    • 9 year old son brings gun to school.
    • 9 year old son accidentally pulls trigger while at school, injuring classmate.

    Basic Procedure of Case
    • State charges defendant with 3rd degree assault and unlawful possession of a firearm.
    • At trial (so- not on the appeal, which is what I linked to), the court dismissed the unlawful possession charge.
    • Defendant makes a motion basically saying that his case should be dismissed because there is no way that, even if the facts are true, that he can be found guilty of 3rd degree assault.
    • The trial court denies this motion, so the defendant appeals.
    • The trial cannot continue until the Court of Appeals makes a ruling on whether the case can proceed.
    • -Yesterday, March 8th, Division 2 of the Court of Appeals in WA ruled that the case can proceed.

    What the State Must Prove:
    (1) A person is guilty of assault in the third degree if he or she, under circumstances not amounting to assault in the first or second degree, [...] with criminal negligence, causes bodily harm to another person by means of a weapon or other instrument or thing likely to produce bodily harm. (This is RCW 9A.36.031 (1)(d))

    The Court's Holding (Short Version- Verbatim)

    "We have concluded that this case may be tried. We are told that this decision will open
    the floodgates to charges against innocent parents for the unanticipated criminal acts of their
    children where the parents' only fault was in failing to totally secure an item that could
    potentially be dangerous. We do not anticipate such a flood. But if a parent leaves a live hand
    grenade on the kitchen counter, they could be at risk of criminal prosecution. The reason why a
    hand grenade could lead to charges and a butcher knife will not is in the state of mind that must
    be proven that the parents' actions were at least a gross deviation from a normally careful
    person's conduct. Faced with this high burden, we do not anticipate that prosecutors will be
    filing charges for failing to secure normal household items such as knives, power tools, and the

    Dissenting Justice's Opinion (Excerpts)
    Dissenting justice does an excellent job at framing the issue right out of the gate:

    • "I do not downplay the hazard to others by keeping loaded firearms around children or 'the damage done to the injured victim, another child. But even in the face of tragedy, this is a case involving potential criminal liability and imprisonment. As such, we are bound to strictly construe the law, not to stretch it to fit the exigencies of the situation."

    (Note: I don't have time to outline the legal arguments), but the conclusion is pretty straightforward:
    • "Thus, Washington law permits that, with the appropriate permissions, minors may not only possess but use firearms within the home for self defense, defense of others, and defense of property."
    • "Arguably, the law contemplates that, in order to be useful for self defense purposes, such firearms may need to be readily accessible and operable by a minor, that is, unsecured and loaded."
    • "Thus, the majority's broad imposition of criminal liability for failure to secure a loaded gun kept within the home would conflict with the legislature's express authorization of minors to use firearms within the home for lawful defense purposes."

    The Justice then goes on to expound on the constitutional right to bear arms:

    "In sum, Washington law does not prohibit and,t o some extent, the Second Amendment
    affirmatively protects — keeping firearms at home. Washington courts have declined to impose a
    duty to the general public to secure firearms within the home from theft and subsequent criminal
    use, recognizing that such a heavy policy question is best addressed to the legislature. And
    Washington courts have held that, as a matter of law, bare generalizations such as "all minors
    have a dangerous proclivity when it comes to guns" are insufficient on their own to maintain a
    civil negligence claim."​

    I think there is enough info in this post to start some great conversation. I'd strongly encourage all Washington residents (specifically those who own firearms) to read this entire opinion as I have only selected portions of it. The court seems to suggest that, even if your firearm is stolen, you can be charged with assault. Whether the jury would convict is a different matter, of course. But think of the possible ramifications of this. Suppose someone steals your firearm and then goes on a shooting spree? If death results, are you going to be responsible?

    Miscellaneous background info:

    Here is a little breakdown of the levels of authority (from top down) in the judicial system in Washington:

    1. Washington Supreme Court

    2. Court of Appeals (Division 1, Division 2, Division 3) Here is a map that breaks down the geographic boundaries of the different divisions.

    3. Trial Courts (tons of these, as well as lower courts).
  2. Tangent123123

    Battle Ground
    Gold Supporter Gold Supporter

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    This is a tough one. I think parents should be held more responsible for their children's actions.

    With that being said. Do I think a person should be held responsible for firearms stolen from their property! No I do not. But a 9 year old taking a gun from the house is a lot different then a bad guy breaking in and busting open your safe to take a firearm.

    Maybe the girlfriend should be held responsible for her child? At the very least I might see this as a civil court issue rather then a criminal court issue and suing the mother for damages.

    The gun owner is responsible for the guns on his property and maybe should be held responsible for leaving them within reach of children while they are in his residence, but once again I think more on a civil level then criminal.

    But this is a tricky one.. I don't like the way the courts took It, but I don't think the entire incident should be brushed off as kids will be kids either.
  3. Cuthbert Allgood

    Cuthbert Allgood
    Clark County, WA
    Well-Known Member

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    crap like this is one of the big reasons i won't become involved in relationships. i don't want some woman's kids over who may have sticky fingers. even worse is if the woman doesn't discipline their result of a one night stand.
  4. mancat

    Kitsap County
    Well-Known Member

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    unbelievable. I didn't know this case had gone so far. the shooting happened just about a mile away from a where I used to live in Bremerton, in the elementary school that my wife went to.
  5. RB87

    Active Member

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    "...Faced with this high burden, we do not anticipate that prosecutors will be
    filing charges for failing to secure normal household items such as knives, power tools, and the

    Yeah, bull bubblegum. Prosecutorial discretion is a chasm as wide as the grand canyon these days. "Ooh, shiny!" is the attitude if the DAs think they can get a conviction on their record (likely a plea deal) to enhance their political career.
  6. pokerace

    Well-Known Member

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    They used the "But if a parent leaves a live hand
    grenade on the kitchen counter," as an example. A hand grenade is an explosive devise and illegal to own.
  7. One-Eyed Ross

    One-Eyed Ross
    Winlock, WA
    Well-Known Member

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    I'm wondering what the Supremes in Oly will think about this, if they get the case. You know they will get a case eventually...

    And what about the Chief's gun? If his gun is used in a crime, will they charge him? (Curly Cows Ski)


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    The precedent this case sets is truly sad for our country. Parents can show/teach their kids the path of honor and good. But its up to the individual to take that path. What happened to responsiblity for your actions. Accountability?
    I do believe this guy should have secured his guns better but the kid stole it. I guess the next step will be you have to secure everything in your home so it cant be used as a weapon.:
  9. Provincial

    Near Salem, OR
    Well-Known Member

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    The gun owner delegated supervision of the child to the girlfriend/mother. He was not present, but had established a protocol that the girlfriend/mother would use the premises in his absence in a manner that would allow him to leave his belongings unsecured. That was not negligent. It was the negligence of the girlfriend/mother that led to the "assault", and she is the one to be responsible. The gun owner is a victim, first of theft, then of legal harassment due to the negligence of the girlfriend/mother. Why is she not charged?
    mancat, kumabear17, carracer and 3 others like this.
  10. iPleadtheSecond

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    This case seems to depend upon the court's interpretation of the word "cause." After all, to even charge the defendant with assault, the State has to prove that a jury could reasonably infer that the defendant caused bodily harm to the victim. Does this seem a bit attenuated given that the defendant's firearm was stolen and then (obviously) used without his permission to cause bodily harm to someone?

    Indeed, the defendant did argue this at length in his brief to the Court of Appeals. You can read it here.

    Specifically the defendant argued that (p.9):

    "Given that Mr. Bauer never had contact with the victim, much less
    assaulted her, the case should never have been filed. Bauer was not
    present at the scene; never possessed the firearm at the time of the
    incident; nor was he aware that TGJC had the firearm or even brought it to
    school. Indeed, he was miles away from the school and every affirmative
    act that occurred, which resulted in the injuries to the young girl was
    outside of his knowledge or approval. If we are to assume that the
    legislature meant exactly what it said when it used the word "cause ",
    which is what is required, the only logical conclusion is that Mr. Bauer did
    not commit an assault."​

    To be clear- the defendant's brief has absolutely NO legal authority whatsoever. But- as far as seeing what the court had to work with when issuing its ruling- it's helpful as background reading. I know it's hard to find time to read something so lengthy- but I'm posting it here for people who really want to understand how this issue is being argued.

    And to be fair, here is the State's response brief to the defendant's brief (essentially the State's argument to the court). Finally, the defendant responded to the State's brief (such a response is known as a "reply brief" and is optional to file) here.

    As a side note... I think the hand grenade example at the end is rhetorically weak and completely dishonest with the court's opinion. It's the icing on the cake. A "live hand grenade"? Sure- I'll give you that one. If a parent leaves a live hand grenade on the kitchen counter I can at least see the argument that criminal prosecution might follow if a kid steals it and then ND's at a school. But how the hell is a firearm that is used for self defense comparable to a live hand grenade? Is anybody really using a live hand grenade for home defense these days? REALLY?

    I'm sure this bizarre analogy infuriated the dissenting justice because he points out that Division 3 of the Court of Appeals has specifically rejected the notion that:
    "all minors have a dangerous proclivity when it comes to guns "' and "`a minor misusing a gun is foreseeable by almost everyone "' as bases for finding civil negligence."​

    Nobody is arguing dangerous proclivity when it comes to hand grenades. I have absolutely no idea why the court went there. The court is implying that leaving a live hand grenade on the kitchen counter, like having a loaded firearm readily available for self defense, is a "gross deviation from a normally careful person's conduct." (Page 18). If this doesn't send chills down your spine...the court seems to be implying that a normally careful person will not have a firearm for self defense (which is almost always going to be loaded and readily accessible).

    The natural response to this is that the court was only referring to handguns that are negligently stored and easily accessible for little kids to access. But the court did not state this. The fact that the child who stole the firearm happens to be 9 years old makes this even more interesting. What if the child was 7? What if he was 5? 2 years old? The court didn't want to go too far into expressly imposing "safe" firearm storage requirements (an area obviously left for the legislature and- in theory- we the people). I'm not sure if any responsible gun owner wants two court of appeals justices telling them how to "safely" store firearms. What are their qualifications? They refer to what a "normally careful person" would do- but how do they know what this is? Is a normally careful person someone like Joe Biden who encourages gun owners to shoot without discrimination into the dark of night?
  11. Misterbill

    Yakima County, Washington
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    I think you're reading too much into this. It's one thing to have a firearm readily accessible for self-defense. It's another altogether to leave it unattended, while a 9-year-old boy with (clearly) no training is ALSO unattended in your home and has ready access to that same firearm.

    I have children ages 4-12 over to my house on occasion when my nieces and nephews visit us. My "readily accessible firearm" is on my hip. the rest are locked up. When they spend the night, there is no time when the weapon is unattended. Short of sneaking into our room without waking us up and taking it from it's resting place next to my head, it's impossible for them to get to it. they also all know they can see the guns if they just ask.

    It's pretty common sense to lock your guns up when someone else's children come to the home. Certainly if they are going to be unsupervised for more than a few seconds in your home. "Firearms should be stored so they are inaccessible to unauthorized persons" comes right out of the NRA programs for a reason.

    This guy didn't think about the gun. That's what probably happened. It's not his kid, maybe he doesn't understand how kids get into things, which would be a defense at trial. But I don't see how anyone can argue that having a loaded gun accessible to an unsupervised, untrained 9-year-old who belongs to SOMEONE someone ELSE is anything BUT a recipe for disaster.

    If nothing else, hide the damned thing in a place the kid has no business being and keep a very close eye on junior. I can think of a dozen ways to deal with this that would have avoided this situation.

    I stress this stuff in every class I teach for a reason.
  12. Redcap

    Lewis County, WA
    Well-Known Member

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    Absolutely ridiculous.
    carracer and (deleted member) like this.
  13. Profiteering

    New Member

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    I'm going to Patent a " Household Hammer Lock! "
    Not to be confused with the hammerlock.
    Then push our congress to pass a bill requiring them. :winner:
  14. revjen45

    Snohomish County
    Well-Known Member

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    "I'm going to Patent a " Household Hammer Lock! "
    Not to be confused with the hammerlock.
    Then push our congress to pass a bill requiring them."
    Given that bludgeons of various sorts are used to kill more people than all rifles combined that makes sense.
    Who "needs" a 28 oz. hsmmer just to pound a nail? Can't you do it with a 12 or 16 oz. hammer?
  15. BigStick

    Sherwood, OR
    Well-Known Member

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    The thing that bothers me is that this court decision essentially institutes a mandate to lock up your guns. No need for a law to be passed, or vote to be had. Two judges decide that if you don't have your weapons locked up, you are responsible for what is done with them. "...oh, but only if you have kids in the house..." yeah, well who can garauntee that there will never be kids in their house? If you can prove that that is the case, then you don't need to lock them up, otherwise you could go to jail.

    So if I forget the keys in the ignition of my car while I grab something out of the passenger seat, and someone steal my car and hits a pedestrian, am I also responsible for that? This is a really bad precident for the court to set. As indicated by the dissenting judge, this is a matter to be left to the legislators and the people.
  16. Misterbill

    Yakima County, Washington
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    Actually it does not.

    I'm all in favor of holding people accountable for not locking their guns up or otherwise keeping them out of reach around kids IF something happens.

    This is about accountability for your own actions, and that's really all he court said. That the defendant COULD be charged. This isn't a conviction or even upholding a conviction. It's just saying that there's a prima facie case to be made that failure to secure loaded guns around children is in this case negligent.

    I agree, it WAS negligent. This wasn't some stranger coming in and robbing the guy. It was a child over whom he had some control, that he INVITED into his house.

    Mandating locks is a whole Malum Prohibitum kind of case. The court said nothing of the kind. It just said that if you're irresponsible with your guns and a child gets shot with the gun you failed to keep out of his hands through that negligence, that you have some liability.
  17. Chee-to

    Well-Known Member

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    What if; The kid steals a pairing knife from his unguarded kitchen drawer, and stabs another kid to death, or better yet, he steals the guys car (took the unguarded keys from the nightstand) and is involved in a hit and run with a death ?
  18. hermannr

    Okanogan Highlands
    Well-Known Member

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    on to the WA Supreme Court
  19. traderpats


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    This. The mother failed to supervise the child while at visiting another residence. Besides if this were to stand it would disproportionately affect the "parents" of inner city yutes so it would be deemed racist. Right?
  20. Caveman Jim

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

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    Who cares if they deemed it racist??? Negligence is Negligence, no matter what race they are.

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