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Why Americans Don't Treat Fatal Gun Negligence as a Crime


Kasey Wilson lives in rural Missouri. He is in his mid-twenties, married with children, and runs his own lawn care business. On October 28, 2013, as his kids played in the front yard with four-year-old Zoie Dougan, the daughter of a visiting friend, Wilson borrowed a rifle from next door, went into his backyard, closed one eye, and shot across the lawn toward a pile of trash. He didn’t realize he had shot Zoie in the head until he heard screaming. By the time she arrived at the hospital by airlift she was dead, and her mother had already asked the police to go easy on her friend. “It was an accident,” deputies report her saying.

Police who interrogated Wilson noted the recklessness that led to Dougan's death. Even if children had not been playing outside, Wilson had fired his gun toward a highway. “If a vehicle or pedestrian were to walk or drive up [redacted road name] they could be seriously injured or killed by his carelessness,” wrote one officer in his report. Yet Wilson was never prosecuted for the shooting. Christian County prosecutor Amy Fite went so far as to redact his name from documents. Because he faced no charges, nothing prevents Wilson from owning guns. The legal system, treating Dougan’s death as a pure accident, holds no further consequences for Wilson.

Every year many gun owners, like Wilson, unintentionally cause death and injury yet face no legal consequences. In criminal and civil courts, the legal system often fails to hold negligent gun owners accountable for such harm. Gun Violence Archive, a non-profit effort that combs through more than a thousand media sources to collect information about gun violence, has verified more than 1,500 accidental shooting incidents in 2014. Data on the legal outcomes of these shootings is sketchy, but many cases of unprosecuted unintentional shootings are available—dozens from the first two months of 2014 alone remain unprosecuted.

The past decade has seen legal measures to prevent gun negligence systematically dismantled. The 2005 Protection of Legal Commerce in Arms Act statutorily inoculated gun manufacturers and dealers from most claims of negligence in gun deaths. This is even more dangerous than it may first sound. Many people unfamiliar with guns assume that they are designed with simple safeguards against unintentional shootings, but this is not always the case. Glock handguns, for example, have no external safety: If a round is chambered and the trigger is squeezed, the gun fires. As Aaron Walsh, a criminal defense attorney in Augusta, Georgia, put it, “With any other product in the world there would be no Glock company because they would be sued out of existence. You don’t have a safety? That can’t be right.” 

Because the firearms industry enjoys exceptions from normal liability, more of the burden for preventing negligence falls to gun owners. Until recently, responsible gun ownership has to some extent been enforced through gatekeeping: State laws limit who can own guns and carry them in public. But advocates for expanded gun rights have been shifting away from an older gun lobby talking point—that we should stop passing new gun control laws and simply enforce the laws we already have—and toward a strategy of dismantling existing legal safeguards. The push for “constitutional carry”—gun carrying by anyone, anywhere, with no licensing required under the pretense that this is a right granted by the Constitution—has radically loosened restrictions on who can own guns and where they may carry them. In several states people may now carry guns on college campuses. In Michigan, guns may be carried openly at K-12 schools. In Iowa, a resident may not be denied a permit to carry a gun in public based on the fact that he or she is blind. In Georgia and other states, guns may be carried in churches and bars. In six states, resident adults may carry concealed handguns with no licensing or training required. Pediatricians in Florida are legally prohibited from asking new parents if they have guns in the home.

With preventative measures falling apart, punishment seems the only remaining legal recourse for enforcing responsibility with guns. But we are not responding to negligence, even egregious negligence, as one might expect. Unintentional shootings frequently go unprosecuted because they don’t always clearly rise to the level of crimes, explained Pete Theodocion, a criminal defense attorney in Augusta, Georgia. “If we are going to take away a person’s liberty and put a person in a cage, we typically require that person to have the mindset of ‘I’m going to do harm now’ as opposed to just acting like a dumbass,” he said.

Yet some of these cases are appalling. A man in Washington practiced drawing a loaded handgun and unintentionally shot and killed his girlfriend’s daughter. A man in Florida twirled a handgun on his finger and killed a pregnant woman. A man in New Mexico handed a loaded rifle to his six-year-old daughter, who unintentionally shot her sister in the neck. None of these gun owners was prosecuted. The district attorney in the New Mexico case told the Farmington Times, “The father did not follow basic and universally accepted firearm safety rules” but “the problem is that the standard for criminal negligence is higher.”

In 2012 Moises Zambrana was trying to sell a firearm at a church in Florida. He took two men into a storage room to show them the gun, which was loaded. He unintentionally fired it, sending a bullet through the wall and striking the 20-year-old daughter of the pastor in the head. Hannah Kelley died of her injuries, but Zambrana, who had a concealed carry permit, faced no charges. He now works as an armed security guard. Without legal intervention, nothing prohibits a negligent shooter from continuing to carry guns in public. Wilson’s and Zambrana’s cases show the reluctance of some prosecutors to pursue charges against shooters who were negligent, and they seem similarly reluctant to prosecute gun owners who allow an unauthorized person, such as a child, to access a gun.

In civil law, negligence is a category of tort, or cause of harm to someone else. Crimes, on the other hand, typically require criminal intent. There are exceptions: The law has designated some kinds of unintentional harm as crimes—for example, child neglect, which society understands is a significant harm to the state that the law should forcefully deter. Specific statutes define child neglect, so prosecutors feel mandated to pursue charges against negligent parents. Few statutes define gun negligence, though, leaving more discretion to district attorneys. Where district attorneys or judges are elected, the gun lobby and local attitudes toward guns can affect whether the state wants to claim that leaving a loaded gun lying around deviates from normal, responsible behavior. “Remember, the prosecutor is elected,” said Korey Reiman, a criminal defense attorney in Lincoln, Nebraska. “If he starts ringing up people who accidentally shoot their buddy hunting, he isn’t going to be prosecuting long.”

Gun negligence cases do not fare much better in civil courts. Such cases may seem best suited to civil cases, but civil judgments do not rescind the gun rights of negligent shooters. Also, in many unintentional shootings, the only people who could claim damages would be the gun owner himself or his family—when a preschooler gets hold of a parent’s unsecured gun and kills his sibling, the negligent parent would need to sue himself. With no criminal or civil recourse, these avoidable deaths go unaddressed by the justice system.

When a surviving family member does sue a negligent gun owner for the death of a child or spouse, their lawsuits often fail. Andrew McClurg, a law professor at the University of Memphis, has written extensively on what he sees as a “right to be negligent” that has arisen from the failure of courts to hold negligent gun owners accountable. McClurg sees these rulings as flagrant violations of tort principles that result from strange mistakes in reasoning about risk—judges have ruled in favor of negligent gun owners because specific chains of events were unforeseeable.

For example, in Strever v. Cline, the Montana Supreme Court decided that a gun owner who left a loaded handgun in an unlocked truck parked on a public street was not liable for the death of a boy killed with the gun. Four boys rummaged through the truck, left, then returned to look for things to steal. One of them found the handgun, waved it around, and unintentionally killed another boy. The court decided that it was impossible to foresee that the boys would make two trips to the truck or that one of them would wave the gun around, and so decided the gun owner was not at fault. But those details are incidental, says McClurg—we don’t need to foresee such specifics, we only need to foresee the risk of the shooting. Leaving a loaded gun in an unlocked, unattended truck is negligent because someone such as a child might access it and harm someone, and that risk of harm is exactly what panned out.

Findings in other civil cases against negligent gun owners suggest that political sensibilities motivate some decisions by the court. In one case McClurg examined, a gun owner kept a loaded handgun next to a tray of change in his bedroom, which he allowed his teenage daughter to raid for spending money. Sometimes she did this with her boyfriend; eventually, the boyfriend took the gun and used it to rob and murder a man who was leaving a restaurant. The victim’s family sued the girl’s father for leaving a loaded gun lying around where he knew minors could access it. The court declined to hold him liable, saying it was “not persuaded that society is prepared to extend the duties of gun owners that far.” This reasoning was not based on principles of liability, but on what the court thought the implications would be for gun ownership in America.

Indeed, political squeamishness about defining responsible gun ownership drives our failure to hold negligent gun owners accountable. It leads to statutes that protect recklessness among manufacturers and sellers, enables legislation that encourages gun proliferation, and shackles a legal system that ends up seeming more concerned about running afoul of the firearms lobby and its adherents than in protecting the public.

So what can we do? I asked McClurg. “That's the million-dollar question,” he said. “The law already supports liability, so it would require a change in our mindset.”

If we want to see criminal charges more consistently brought against negligent gun owners, more specific legislation is in order. Don Kleine, the attorney for Douglas County, Nebraska, explained, “The way we file a charge is based on the laws the legislature passes. If we want to charge something, we have to have a statute somewhere. If the legislature would enact something to give us some guidance, to say, ‘This is something we feel is so inappropriate that we’re going to have a law that says that if somebody doesn’t put their gun away the right way or leaves it accessible to a child without the proper safeguards on it, then that’s a crime,’ then that would certainly help us—we have to have a law to enforce.”

Otherwise, he explained, it remains a civil issue. Without a statute, there’s no crime. With politicians as timid as prosecutors, we won’t be seeing those statutes anytime soon.