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 ran the first half of their responses last month and wrap up this question now in our February edition.
John Chapman
Kelly & Chapman
PO Box 168, Portland, ME 04101
207-780-6500
Maine has long had its “endangering the welfare of a child” law, recently updated. Now if a kid obtains a gun from you, and threatens or hurts someone, you need to prove your way out (affirmative defense).
Here’s our new law. It describes a BUNCH of ways to secure guns so kids can’t get them and if they DO (with an ax, for example), you are not guilty.
4. It is an affirmative defense to prosecution under subsection 1, paragraph B‑4 that:
A. The loaded firearm is:
(1) Stored in a locked box, locked gun safe or other secure, locked space;
(2) Stored or left in a location that a reasonable person would believe to be secure; or
(3) Secured with a trigger lock or similar device that prevents the firearm from discharging; [PL 2021, c. 388, §3 (NEW).]
B. The loaded firearm is carried on the person or within such close proximity to the person that the person can readily retrieve and use the firearm as if the firearm were carried on the person; [PL 2021, c. 388, §3 (NEW).]
C. A child who in fact gains access to the loaded firearm gains access in order to defend the child or a 3rd person under the circumstances enumerated in section 108, subsection 2, paragraph A or B; [PL 2021, c. 388, §3 (NEW).]
D. The person has no reasonable expectation, based on objective facts and circumstances, that a child is likely to be present on the premises where the person stores or leaves the loaded firearm; [PL 2021, c. 388, §3 (NEW).]
E. A child in fact gains access to the loaded firearm as the result of a criminal trespass by any person on the premises where the firearm is stored or left; or [PL 2021, c. 388, §3 (NEW).]
F. A child in fact gains access to the loaded firearm as the result of a theft of the firearm by any person from the premises where the firearm is stored or left.
So, there are lots of ways of complying with the law. Note that there are also prohibitions on providing gunpowder and ammunition, as well as “air rifles.”
Joel W. Ostrander
Law Offices of Joel W. Ostrander
617 Wesley Ave., Oak Park, Illinois 60304
708-421-7259
Illinois law is as follows:
Ҥ 720 ILCS 5/24-9. Firearms; Child Protection
Sec. 24-9. Firearms; Child Protection. (a) Except as provided in subsection (c), it is unlawful for any person to store or leave, within premises under his or her control, a firearm if the person knows or has reason to believe that a minor under the age of 14 years who does not have a Firearm Owners Identification Card is likely to gain access to the firearm without the lawful permission of the minor’s parent, guardian, or person having charge of the minor, and the minor causes death or great bodily harm with the firearm, unless the firearm is:
(1) secured by a device or mechanism, other than the firearm safety, designed to render a firearm temporarily inoperable; or
(2) placed in a securely locked box or container; or
(3) placed in some other location that a reasonable person would believe to be secure from a minor under the age of 14 years.
“(b) Sentence. A person who violates this Section is guilty of a Class C misdemeanor and shall be fined not less than $1,000. A second or subsequent violation of this Section is a Class A misdemeanor.
(c) Subsection (a) does not apply:
(1) if the minor under 14 years of age gains access to a firearm and uses it in a lawful act of self-defense or defense of another; or
(2) to any firearm obtained by a minor under the age of 14 because of an unlawful entry of the premises by the minor or another person…”
Please note this statute only applies if there is “a minor under the age of 14 years who does not have a Firearm Owners Identification Card is likely to gain access to the firearm.” Illinois requires any resident to obtain a Firearm Owners Identification Card (FOID) for purchase of a firearm or ammunition. It’s a background check and since the state requires insta-check at the time of a firearm purchase, serves as a partial gun registration. Gun dealers call the Illinois State Police and submit the name, FOID number and whether the gun is a long gun or handgun, Illinois State Police give either an approval number (written on the bill of sale), rejection or deferral pending further review.
There is no minimum age for a FOID, but applicants under 18 must have parental approval on the application. So in summation, this statute only applies:
1. To minors under the age of 14, and
2. To minors under the age of 14 without a FOID
I have not had any clients who were charged under this statute.
James “Mitch” Vilos
Attorney at Law, P.C.
P.O. Box 1148, Centerville, UT 84014
801-560-7117
https://mitchvilos.com
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?
These Utah statutes relate to parents who have knowledge that their child or “violent child” has possession of “dangerous weapons.”
§ 76-10-509.7. Parent or guardian knowing of minor’s possession of dangerous weapon
Any parent or guardian of a minor who knows that the minor is in possession of a dangerous weapon in violation of Section 76-10-509 or a firearm in violation of Section 76-10-509.4 and fails to make reasonable efforts to remove the dangerous weapon or firearm from the minor’s possession is guilty of a class B misdemeanor.
§ 76-10-509.6. Parent or guardian providing firearm to violent minor
(1) A parent or guardian may not intentionally or knowingly provide a firearm to, or permit the possession of a firearm by, any minor who has been convicted of a violent felony as defined in Section 76-3-203.5 or any minor who has been adjudicated in juvenile court for an offense which would constitute a violent felony if the minor were an adult.
As Utah’s “gun-law” attorney, I am not aware of any criminal statute that specifically creates criminal liability for failing to keep firearms secured. However, a person in Utah could conceivably be charged with manslaughter, a felony, for “recklessly causing the death of another.” Likewise, if his or her conduct was held to be criminally negligent (more than ordinary negligence), he/she could be charged with negligent homicide, a serious misdemeanor. Civil liability could arise under Utah case law, however, for reckless or negligent conduct resulting in death or injury from leaving a firearm unsecured. E.g. Utah Supreme Court has held that giving a loaded firearm to a very drunk person who shot herself could give rise to a civil suit for negligence.
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?
No, but as explained above, it’s not inconceivable if the conduct is shocking enough to constitute criminal negligence or recklessness. My alter-ego, Pancho V., always says, “Don’t become the TEST CASE!!!!”
Thomas C. Watts III
Law Corporation
8175 Kaiser Boulevard Suite 100, Anaheim Hills, CA 92808
714-364-0100
https://tcwatts.com
You might have guessed that California has such laws.
25100 PC states that “a person commits the crime of criminal storage of a firearm…if all of the following conditions are satisfied: The person keeps any firearm within any premises that are under the person’s custody or control. The person knows or reasonably should know that a child is likely to gain access to the firearm without the permission of the child’s parent or legal guardian and the child obtains access to the firearm and thereby causes death or great bodily injury to the child or any other person.”
Improper storage is a misdemeanor. An injury can put you in prison for three years.
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Thank you, affiliated attorneys, for your comments about this topic. Members, please return next month for the a new topic of discussion.
To read more of this month's journal, please click here.