This month our Network President Marty Hayes has asked us to explore legal responsibilities of parents who fail to secure guns which are subsequently used in tragedies like the Oxford High School killings and injuries. Of course, the laws vary a lot from state to state, as does how strictly laws on the books are enforced. With Affiliated Attorneys all across the United States, our Network members will greatly benefit from discussion of how criminal liability is assigned to parents of minors in school shootings.
We asked our affiliated attorneys the following:–
In your jurisdiction, are there specific laws pertaining to keeping firearms secured and out of the reach of unauthorized persons such as a minor child?
Have you witnessed or been a part of any trial, pre-trial, or other hearing where a parent or an adult has been criminally charged for a minor’s access to and/or use of a dangerous weapon?
So many attorneys wrote in to share their thoughts that we will run the first half of their responses this month and wrap up this question in our February edition.
Michael G. Romano
12725 SW Millikan Way Suite 300, Beaverton, OR 97005
503-208-5529
https://romanolawpc.com
Yes. Oregon law just changed this past September and now requires that firearms in the home not on your person must be secured (either in a dedicated locked room, safe, or with another locking mechanism).
Have you witnessed or been a part of any trial, pre-trial, or other hearing where a parent or an adult has been criminally charged for a minor’s access to and/or use of a dangerous weapon?
I have not, but our criminally negligent homicide statute (ORS 163.145) could certainly expose, say, a parent who allowed a minor to obtain an unsecured firearm and commit a crime. Also, with the new safe storage law, gun owners are exposed to liability for stolen firearms if they were unsecured. (Ch. 146, § 2)
(3) If a firearm obtained as a result of an owner or possessor of a firearm violating subsection (1) of this section is used to injure a person or property within two years of the violation, in an action against the owner or possessor to recover damages for the injury, the violation constitutes per se negligence, and the presumption of negligence may not be overcome by a showing that the owner or possessor acted reasonably.
(4) Subsection (3) of this section does not apply if:
(a) The injury results from a lawful act of self-defense or defense of another person; or
(b) The unsecured firearm was obtained by a person as a result of the person entering or remaining unlawfully in a dwelling, as those terms are defined in ORS 164.205.
(5) This section does not apply to a police officer as defined in ORS 181A.355, with respect to a particular firearm, if storage of the firearm is covered by a policy of the law enforcement agency employing the police officer and the firearm is stored in compliance with the policy.
Brian Craig
Law Office of Brian Craig, PLLC
95 West 100 South, Suite 106, Logan, UT 84321
435-760-3101
https://briancraiglaw.com
Utah has enacted specific criminal laws restricting a minor or other authorized persons from possession of a firearm and holding parents and other persons accountable. Utah makes it a crime for parents or guardians to allow a minor to handle a firearm unless there is parental consent and supervision. Utah Code §§ 76-10-509, 76-10-509.4, 76-10-509.5. And even if there is parental consent and supervision, the Utah Legislature has made it still a crime to provide a minor with a firearm if the minor is violent. Utah Code § 76-10-509.6. Moreover, minors under age 18 are categorically prohibited from possessing a handgun, a short-barreled rifle, a short-barreled shotgun, or a fully automatic weapon. In addition, Utah treats the possession of firearms by minors so restrictively that parents have an affirmative duty to remove the firearms from their minors’ possession when they are aware that the firearms are possessed unlawfully. Utah Code § 76-10-509.7. See also Herland v. Izatt, 2015 UT 30, 345 P.3d 661 (Utah 2015). A person may not sell any firearm to a minor under 18 years of age unless the minor is accompanied by a parent or guardian. The punishments range from a class B misdemeanor to a third degree felony, depending on the offense.
Along with criminal prosecution, the possibility of civil liability exists. In Herland v. Izatt, 2015 UT 30, ¶ 24, 345 P.3d 661, 669 (Utah 2015), the leading Utah Supreme Court case on the duty of gun owners, the Utah Supreme Court has held that although the United States Constitution, as well as Utah’s Constitution and statutes, clearly protect the right to own firearms, this right is not unrestricted. The Utah Legislature has in multiple ways acted to prevent access to guns by restricted persons, minors, and those who are intoxicated. Id. Given the minor burden imposed and the great risk where such weapons are supplied to these groups, the Utah Supreme Court affirms that gun owners “have a duty to exercise reasonable care in supplying their guns to others—such as children and incompetent or impaired individuals—whom they know, or should know, are likely to use the gun in a manner that creates a foreseeable risk of injury to themselves or third parties.” Id. While the facts of the Herland v. Izatt decided by the Utah Supreme Court involved a wrongful death civil suit brought against a gun owner after a social guest found the gun in the gun owner’s home and committed suicide, the court’s holding extends much broader.
In addition, the Utah Supreme Court has adopted the distinct tort of negligent parental supervision holding a parent liable in a civil action for the torts of his or her minor child. In Donovan v. Sutton, 2021 UT 58 (Utah 2021), the Utah Supreme Court recognized that in general, parents are not liable for the torts of their children. But Utah recognizes the tort of negligent parental supervision, in which a parent’s failure to adequately supervise and control a child can lead to liability for the parent. Utah adopts the Restatement (Second) of Torts § 316 approach that a parent is under a duty to exercise reasonable care so to control his her minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent: (1) knows or has reason to know that he or she has the ability to control his or her child, and (2) knows or should know of the necessity and opportunity for exercising such control.
Besides parents, other persons or entities can be held liable in a civil case for negligence involving a firearm. In a case similar to the shooting on the film Rust involving actor Alec Baldwin, a 15-year-old high school student tragically died in 2008 in a stage production of the musical Oklahoma! in St. George, Utah. In Thayer v. Washington County School District, 2012 UT 31, 285 P.3d 1142 (Utah 2012), the drama department of the high school used a real gun, loaded with blanks to make sound effects for the school musical. The gun, a Smith & Wesson .38–caliber, six-shot revolver loaded with blanks, was discharged near the student’s head and the student died. The parents of the child who died brought a negligence and wrongful death claim against the school district stemming from the conduct of the vice principal and theater instructor who allowed the use of a real gun in the stage production and disregarded safety precautions. In Thayer v. Washington County School District, the Utah Supreme Court rejected the school district’s asserted defense under the Utah Governmental Immunity Act and held that the suit against the school district could proceed.
Joel E. Abelove, Esq.
Abelove Law, P.C.
1702a Central Avenue, Albany, New York 12205
518-750-4011
In New York State, it is a class A misdemeanor (punishable by up to 1 year in jail), for any person who owns or is custodian of a rifle, shotgun or firearm who resides with an individual who is under 16 years of age; such person knows or has reason to know is prohibited from possessing a rifle, shotgun or firearm pursuant to a temporary or final extreme risk protection order; or such person knows or has reason to know is prohibited from possessing a rifle, shotgun or firearm based on a conviction for a felony or serious offense, to store or otherwise leave such rifle, shotgun or firearm out of his or her immediate possession or control without having first securely locked such rifle, shotgun or firearm in an appropriate safe storage depository or rendered it incapable of being fired by use of a gun locking device appropriate to that weapon. (Penal Law Section 265.45).
It is a violation punishable only by a fine of not more than $250 for a person who owns or is custodian of a rifle, shotgun or firearm and knows, or has reason to know, that a person less than 16 years of age is likely to gain access to such rifle, shotgun or firearm to store or otherwise leave such rifle, shotgun or firearm out of his or her immediate possession or control without having first securely locked such rifle, shotgun or firearm in an appropriate safe storage depository or rendered it incapable of being fired by use of a gun locking device appropriate to that weapon. (Penal Law Section 265.50).
In both statutes, exceptions are made for allowing a person less than 16 years of age access to such weapons for purposes of lawful hunting, and for shooting at certain indoor or outdoor shooting ranges.
In my practice, I have not witnessed or been a part of any trial, pre-trial, or other hearing where a parent or an adult has been criminally charged for a minor’s access to and/or use of a dangerous weapon.
John R. Monroe
John Monroe Law, PC
156 Robert Jones Road, Dawsonville, GA 30534
678-362-7650
http://johnmonroelaw.com
My jurisdiction (GA) has no “safe storage” laws. There is a prohibition against a minor possessing a handgun (with certain exceptions), but not against giving a minor access to a handgun.
Some local jurisdictions occasionally attempt to enact some kind of safe storage laws, but there is statewide preemption of local regulation of possession of firearms, so such attempts are generally void.
I have represented clients who have left firearms unsecured and who have consequently been charged with something like reckless conduct for doing so. The charges always have been dropped when it becomes clear that a plea agreement is not going to happen.
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Thank you, affiliated attorneys, for your comments about this topic. Members, please return next month for the second half of this discussion.
To read more of this month's journal, please click here.