On charging parents when kids commit gun violence [opinion] – LNP | LancasterOnline


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The lunch hour was coming to a close at Oxford High School in Michigan on Nov. 30 when Ethan Crumbley, a 15-year-old student, opened fire with a semi-automatic 9 mm handgun. Four classmates died and seven other people — six students and one teacher — were wounded.

Ethan’s father, James Crumbley, had purchased the gun just four days earlier as a Christmas gift for his son. Shortly after the gun’s purchase, Ethan's mother, Jennifer Crumbley, posted on social media: “Mom and son day, testing out his new Christmas present.”

A few hours before the shooting, school officials had raised concerns in a face-to-face meeting with the parents about Ethan’s emotional stability and potential for violence. The parents were informed that they needed to get Ethan into counseling within two days and were asked to take Ethan home for the day. The Crumbleys refused the school officials’ request to take their son home. They did not mention the gun to school officials, nor did they ask their son if he had it with him.

Although James and Jennifer Crumbley have been charged with involuntary manslaughter, it is rare for parents to be prosecuted for shootings committed by children. How can the legal and criminal justice system hold parents accountable for gun violence perpetrated by their children? If one considers the parents to be more culpable for the deaths and injuries than their emotionally troubled 15-year-old, what can be done?

The answers may not satisfy everyone. The criminal justice system is currently ill-suited to apportion accountability according to culpability in cases like this.

Crimes and intent

Criminal law and sanctions are designed to punish “intentional” acts that harm others. In law school, the first case assigned for reading in my criminal law class involved a defendant who thought that the victim had consented to have sex. The issue was not the victim’s consent, it was the accused’s state of mind. The failure to prove that the defendant intended to have sex against the victim’s will was a successful defense to the charge. The defendant was acquitted.

Negligent acts are not treated as criminal, except when negligence is egregious and the consequences are severe (e.g., death). State legislatures have created the criminal offense of involuntary manslaughter to punish egregious behavior, which results in death. Many states, such as Michigan, require a finding that the behavior demonstrates a disregard for human life and safety.

The legal standard

The legal standard necessary to prove involuntary manslaughter is high. Prosecutors must prove that the accused acted with gross negligence. Michigan law defines gross negligence as “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.”

Eve Brensike Primus, a law professor at the University of Michigan who focuses on criminal procedure, explained to The Washington Post why these charges are rare. “It’s really hard to show that parents have a disregard for human life, and that they could actually foresee their child doing this,” she said.

The evidence warrants charges against James and Jennifer Crumbley.

Consider the following:

— The circumstances surrounding the purchase of the handgun.

— The mother’s reaction after being informed that her son had been searching online for ammunition during class (“LOL,” she texted him, adding, “You have to learn not to get caught”).

— The parents’ refusal to remove their son from school at the request of school officials, their failure to inform school officials about Ethan’s access to a firearm and their failure to ask him whether he had the gun in his possession.

These are all evidence that would show gross negligence and establish probable cause for the charges of involuntary manslaughter.

Conviction, however, will not be easy. Prosecutors must prove beyond reasonable doubt that James and Jennifer Crumbley acted so recklessly as to demonstrate a lack of concern for human life and safety.

“I am by no means saying that an active shooter situation should always result in a criminal prosecution against parents. But the facts of this case are so egregious,” Oakland County Prosecutor Karen McDonald said, when announcing the charges against James and Jennifer Crumbley. “I want to be really clear that these charges are intended to hold the individuals who contributed to this tragedy accountable and also send the message that gun owners have a responsibility. When they fail to uphold that responsibility, there are serious and criminal consequences.”

Intentional acts vs. culpability

Ethan Crumbley has been charged as an adult. Like his parents, he has pleaded not guilty. If convicted, he could face life in prison. Given his age, apparent emotional state, and the actions of the parents, a life sentence may seem excessive, compared to the limited sentence — my educated guess would be 15 years — faced by his parents. This tragedy occurred because the adults of the household failed to act as adults.

The criminal justice system is hard-pressed to remedy such perceived inequities in sentencing. Legislatures will (and should) always prescribe more severe penalties for crimes in which intent to cause injury or death is an element of the crime and has been proven. Courts, parole boards and governors may have discretion to consider mitigating factors; however, these institutions and officials are frequently constrained by public opinion and political considerations.

If adults fail to act as adults in controlling their firearms, and storing them securely, resulting in the deaths of children and others, what can the legal system do?

With rights come responsibilities

Reasonable regulation of firearms is necessary to reduce the carnage. Background checks should be required for all sales of firearms. Registration of firearms is not confiscation and serves the interests of law-abiding owners, law enforcement and the public in recovering and removing stolen and illegal firearms off the streets.

States could impose storage requirements and the purchase of insurance in connection with weapons purchases. Neither liberty nor the right conferred by the Second Amendment is free. Deaths and injuries caused by firearms impose extraordinary human and economic costs on our society. Gun owners should pay the costs associated with their exercise of that liberty.

Such proposals will provoke virulent opposition. I recently received a National Rifle Association membership letter, which attacks “hundreds of gun-hating politicians, judges, radical billionaires, and freedom-hating media elites,” who “are attacking your freedom with everything in their arsenal.” The letter continues, “THEY WON’T STOP until they BAN millions of commonly owned firearms ... and march us down the road to door-to-door GUN CONFISCATION.”

I am not a politician, judge, billionaire or member of the “media elite,” but I support gun regulation as a former prosecutor and citizen who is dismayed at the level of gun violence in our country. I grew up in a household in rural Iowa where we had a rifle and shotgun for hunting.

In ROTC and the U.S. Army, I qualified with the M-16 and became familiar with the .45-caliber pistol and other firearms.

After a threat toward a law enforcement officer by a defendant whom I was prosecuting, I considered the purchase of a handgun for personal protection. I decided against the purchase because we had young children in our home at the time — the risk of accident outweighed the risk of harm that I perceived from the accused. I don’t hate guns, but I respect their legitimate purposes and their lethality.

Insanity of doing nothing

Every time a mass shooting is reported, I am reminded of the quote, “The definition of insanity is doing the same thing over and over and expecting different results.” After the anger and outrage subside, the NRA and politicians usually succeed in blocking efforts to address the epidemic of gun violence.

Placing trust in the personal responsibility of all gun owners and accepting the status quo are unacceptable. It is foolishness to trust the personal responsibility of gun-toting crowd members who descend on state capitols and courthouses in support of their causes. There is nothing more dangerous to our democracy than bullies with guns and a sense of entitlement.

Last week marked the ninth anniversary of the mass shooting of 20 first graders and six educators at Sandy Hook Elementary School in Newtown, Connecticut — even after that horrific event, Congress failed to act. Too many children and innocent people die by gun violence in the U.S. every year. Our laws need to change to ensure that all citizens, especially children, enjoy the benefits of life, liberty and pursuit of happiness.

As Prosecutor Karen McDonald said, “We need to do better in this country. We need to say enough is enough.”

Indeed. Getting outraged but doing nothing to change the laws to protect all citizens is merely following the prescription of insanity.

Gregory Hand, a Manheim Township resident, is a retired U.S. Army civilian attorney (1989 to 2017). He served as an Army judge advocate in Germany and as a local prosecutor in Dubuque, Iowa, from 1980 to 1989.

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