Sunday, Jan 20 2013 10:50 AM

When children fire guns are parents responsible?

BY STEVEN MAYER Californian staff writer

It may be a gun owner's worst nightmare.

A child in your home finds a gun, picks it up, and to your eternal regret, fires it out of anger or carelessness or ignorance.

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This question was posed to Twitter users, most of whom live in Kern County:

A reading of CA Penal Code raises this question: Should the parents of the Taft shooter bear any legal responsibility regarding gun access?

@Caryscia -- yes. Again, I don't think you should leave a gun unsecured around anyone. Adult or child.

@PWollesen -- I do not oppose holding criminally negligent parents responsible ... I DO OPPOSE a law that would make charging parents mandatory just because their child used a gun found in the home.

@MissChrisMarie -- Of course. I believe if you own a gun, have minors in the home, and are neglectful in securing it, there should be some... repercussions if it's used by a minor to commit a crime.

@Donnzpg -- As with other minimum legal thresholds of proper parental care of a child, allowing a minor free access to a gun should be a crime.

@k80girl -- yes absolutely. Especially when the kid has exhibited violent tendencies in the past.

@Rockie_Beezy --absolutely. We should depend on parents to take every measure to keep guns out of the hands of our minor children.

@313_DaNi -- YES! law requires guns to be locked away from minors. I'm all for making an example of the parent(s) they need to be accountable!

@bakersfieldrob -- tough question. If a kid grabs a knife an stabs someone, should the parent be charged as an accessory due to "access"?

Homicides, suicides in Kern County


Suicides 2010

Total ... 92

Gunshot wound ... 45

18 years or younger ... 2


Homicides 2010

Total ... 87

Gunshot wound ... 47

18 years or younger ... 4


Suicides 2011

Total ... 105

Gunshot wound ... 42

18 years or younger ... 0


Homicides 2011

Total ... 63

Gunshot wound ... 33

18 years or younger ... 1


Suicides 2012

Total ... 92

Gunshot wound ... 48

18 years or younger ... 0


Homicides 2012

Total ... 76

Gunshot wound ... 50

18 years or younger ... 3


Source: Kern County Coroner's Office


Looking back at high-profile incidents over the years, it's clear that the D.A.'s office has declined to prosecute in a variety of cases, including the following:

* In May 2009, a 3-year-old girl took a handgun from underneath a mattress and accidentally shot her 2-year-old brother in the chest.

The gun, a loaded and ready-to-fire .45-caliber Glock semi-automatic, could have been stored without a bullet in the chamber, rendering it highly unlikely small children would have been able to fire the gun, police said.

Or it could have been stored in a gun safe or with a trigger lock.

But the father told police he wanted the gun under the mattress readily available for self-defense.

No charges were filed.

* In July 2009, a 15-year-old boy accidentally shot himself to death inside a southwest Bakersfield home.

Police said the teen was home with two younger siblings when he found a key to unlock a box and took out a handgun.

The gun accidentally fired, striking the boy in the head.

There were no signs of foul play or any apparent criminal conduct, police said.

No charges were filed.

* In 2003, a 14-year-old boy in Stallion Springs was showing his 10-year-old brother how to unload a gun when it accidentally went off, killing the younger boy. Both boys had attended gun safety classes.

Then-District Attorney Ed Jagels determined it could not be proven the mother and her boyfriend, who were not at home during the incident, acted with gross negligence.

No charges were filed.

* In 1998, the 11-year-old son of a Bakersfield civil attorney obtained a .357 magnum handgun in a desk drawer in a guest house where his 12- and 15-year-old sisters were living. He accidentally shot his 12-year-old sister to death.

According to authorities, all the children in the household had received gun safety training. The gun was intended to enhance the safety of the girls who lived apart from the main house. Jagels said the parents had already suffered too much to prosecute, and they had taken reasonable steps to ensure firearms safety.

No charges were filed.

The issue of access to guns by minors and the question of whether parents or guardians should be held legally responsible took on added urgency this month when 16-year-old Bryan Oliver obtained his brother's shotgun, filled his pockets with shotgun shells, carried the gun into a classroom at Taft High School and began firing.

A classmate, Bowe Cleveland, was critically wounded in the incident, authorities said. Another student was reportedly targeted by a missed shot and a teacher was grazed by a shotgun pellet.

Fortunately, the teacher and another campus employee were able to convince Oliver to put down the gun, likely preventing additional bloodshed. Still, many questions about the incident remain unanswered:

Was the shotgun kept in an easily accessible location or was it locked in a gun safe? Was it equipped with a trigger lock or was it kept loaded and ready for firing?

Was additional ammo easily accessible?

Had Oliver or other family members received any firearms safety training? Were there any previous incidents involving Oliver and guns?

And finally, should adults in the home face charges related to their inability to prevent access to a gun by a minor child?

The law

California penal code makes it clear that parents may be subject to criminal charges when minors get hold of guns.

If the parent or other adult in the home reasonably should know that a child is likely to gain access to a firearm without permission, and the child obtains access to the firearm and carries it off-premises to any public or private school or school-sponsored event, the adult may face up to one year in county jail and a fine of $5,000.

But prosecutions seem to be rare.

While she could not comment on the Taft case specifically, Supervising Deputy District Attorney Melissa Allen at the Kern County D.A.'s office said these sorts of cases seldom occur and can be difficult to prosecute.

"In filing these charges, we look at all the circumstances, including the parents' history," Allen said. "Have they been warned before? Have there been similar incidents? Were they under the influence of a narcotic of some sort? Were they careless in some fashion?"

The age of the child and how the gun was stored may also be important factors.

And in cases where improper access to a gun by a child resulted in the accidental death of a family member, charging a parent is often both impractical and possibly cruel.

"They've already received the worst punishment possible," Allen said of parents grieving the loss of a child in an accidental gun death.

The Taft case is not unique in the way the weapon was accessed. When middle school students Andrew Douglas Golden and Mitchell Scott Johnson massacred several teachers and students at Westside Middle School on March 24, 1998 near Jonesboro, Ark., they first got the guns from family members.

For youngsters bent on getting a gun, the easiest source is often the family's own weapons cache.

Allen, who started at the D.A.'s office in 1998, said she couldn't remember an instance here when adults were charged under the parental responsibility laws. According to a search of records by the D.A.'s office, three cases were found since 2000 that were specifically prosecuted under these laws. But the office was not immediately able to provide specifics about the cases.

Prosecution is different

The state law allowing the prosecution of adults who knowingly leave a gun where a child can access it was enacted in 1992. The law specifically instructs D.A.s, when deciding whether to prosecute, to consider the impact on the parent following the injury or death of a child due to an accidental shooting.

"It's one of the only times in the law such a provision is made," said Kern County Assistant District Attorney Scott Spielman.

Eugene F. Erbin, a Sacramento lawyer and lobbyist who helped write the law, acknowledged that convincing a jury to convict a parent who has suffered the loss of a child would be extremely difficult. Another difficulty occurs, he said, when the child is old enough to find hidden guns or keys to gun safes.

"No way in hell is a D.A. going to prosecute a parent mourning the loss of a child," Erbin said. "But if the neighborhood kid is the one shot, they may prosecute."

The law was written, he said, because children and teenagers were indeed finding guns in their own homes, and those discoveries too often resulted in tragedies. The law, he said, is valuable not only as punishment but as a deterrent, as a way to change the behavior of gun owners.

"There is a deterrent effect," Erbin said.

But while gun advocates preach gun safety, he said, they don't always practice what they preach.

"Too many people store their guns sloppily," he said.

Gun safety

According to gun safety rules published by the National Rifle Association, gun owners should "always keep the gun unloaded until ready to use."

Guns should be stored so they are not accessible to "unauthorized persons," the rules state.

However, many gun owners feel a gun designated for home protection should be loaded and easily accessible to defend against home intruders.

According to a 2011 study by the American Journal of Lifestyle Medicine, more than one-third of Americans have a firearm in their home. Self-defense was cited by gun owners as a primary motivation.

But having a gun in the home doesn't necessarily make it safer.

When a gun in the home is used in a suicide attempt, it is much more likely to be successful than other means. In each of the past three years, suicide outnumbered homicides in Kern County, said county Coroner Manager Dawn Ratliff. And gun suicides accounted for about 47 percent of the 289 suicides in Kern County from 2010 through 2012, coroner's records show.

Only a tiny fraction of suicides, however, were minors.

"A lot of them are very, very impulsive acts by adults," she said.

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