Locked and Unloaded: Part Two – Drilling Down To Details

Nevada LegislatureWhen last we left this topic, the Nevada gun access statute was included with samples of gun storage laws from Massachusetts and California.

Let’s take a closer look at the Nevada statutes and examine some of the weaker points.

 NRS41.472 Imposition of liability for minor’s negligence or willful misconduct regarding firearm.
1. If a parent, guardian or other person legally responsible for a minor under the age of 18 years:
(a) Knows that the minor has previously been adjudicated delinquent or has been convicted of a criminal offense;
(b) Knows that the minor has a propensity to commit violent acts; or
(c) Knows or has reason to know that the minor intends to use the firearm for unlawful purposes,

and permits the minor to use or possess a firearm, any negligence or willful misconduct of the minor in connection with such use or possession is imputed to the person who permits such use or possession for all purposes of civil damages, and, notwithstanding the provisions of subsection 2 of NRS 41.470, that person is jointly and severally liable with the minor for any and all damages caused by such negligence or willful misconduct.

Notice in this statute there are  elements which must be established BEFORE a parent or guardian can be liable for any and all damage caused by a child who gets access to a firearm from the house.  The parent or guardian must know that the child has been held as delinquent by a court or has been convicted of a criminal offense AND knows that the youngster has a propensity for violence AND has prior knowledge that the youngster intends unlawful harm.

In summary — it’s all just a tragic accident for which the victims have no recourse in  court unless the parents of a juvenile delinquent, who are fully aware the scion has a propensity for violence, knows in advance that said offspring had grabbed the family firearm for the purpose of committing an unlawful act — assault, battery, homicide… If this sounds irrationally narrow, it’s because it is.

The first problem with this narrow statute is that it appears to absolve the parents of a youngster under the age of seven from all liability, since Nevada defines an “infant” as a person less than seven and therefore has no criminal liability for anything.   Thus, if a child under the age of seven is playing with a neighbor’s child and the “infant” gets hold of a gun and shoots the playmate — the parents or guardians of the “infant shooter” are not liable for the damage because the child cannot be a delinquent (being too young) and therefore cannot have been convicted of any criminal offense.

For a  child between the ages of 7 and 14 there is a “rebuttable presumption of no criminal intent.”  In other words, the burden is on the prosecution.

There is more comfort to the grieving in NRS 202.300 which specifically addresses children and guns, the first segment of which says:

“Except as otherwise provided in this section, a child under the age of 18 years shall not handle or have in his or her possession or under his or her control, except while accompanied by or under the immediate charge of his or her parent or guardian or an adult person authorized by his or her parent or guardian to have control or custody of the child, any firearm of any kind for hunting or target practice or for other purposes. A child who violates this subsection commits a delinquent act and the court may order the detention of the child in the same manner as if the child had committed an act that would have been a felony if committed by an adult.”

The liability now attaches to the child.  What of the parents? The statute continues:

“3. A person does not aid or knowingly permit a child to violate subsection 1 if:
(a)The firearm was stored in a securely locked container or at a location which a reasonable person would have believed to be secure;
(b) The child obtained the firearm as a result of an unlawful entry by any person in or upon the premises where the firearm was stored;
(c) The injury or death resulted from an accident which was incident to target shooting, sport shooting or hunting; or
(d) The child gained possession of the firearm from a member of the military or a law enforcement officer, while the member or officer was performing his or her official duties.
4. The provisions of subsection 1 do not apply to a child who is a member of the Armed Forces of the United States.
5. Except as otherwise provided in subsection 8, a child who is 14 years of age or older, who has in his or her possession a valid license to hunt, may handle or have in his or her possession or under his or her control, without being accompanied by his or her parent or guardian or an adult person authorized by his or her parent or guardian to have control or custody of the child:…”

Take a second look at this part: “The firearm was stored in a securely locked container or at a location which a reasonable person would have believed to be secure…” What would a “reasonable person” think was secure?  In the back of a dark closet? In a cabinet above the refrigerator? Where?  The last time the Nevada Legislature took a look at this problem came with the introduction of AB 192 on February 10, 1999.

AB 192 (1999) proposed the following change: “(3a)The firearm was stored in a securely locked container or at a location which the person believed or had reason to believe was secure;…”   There’s a nuanced difference between “securely locked container or at a location which a reasonable person would have believed to be secure,” and requiring a rational belief that the storage was indeed secure.  At any rate the change was too much for the 1999 Legislature and AB 192 went to the Committee on the Judiciary and was seen no more.  Subsequent sessions of the Nevada Legislature haven’t seen the introduction of any bill to modify NRS 202.300.

Another alternative to the blanket “infancy defense for parents” comes in the form of the willful and wanton disregard of the safety 0f others” statute.

NRS 202.595 Performance of act or neglect of duty in willful or wanton disregard of safety of persons or property; penalty. Unless a greater penalty is otherwise provided by statute and except under the circumstances described in NRS 484B.653, a person who performs any act or neglects any duty imposed by law in willful or wanton disregard of the safety of persons or property shall be punished:  1. If the act or neglect does not result in the substantial bodily harm or death of a person, for a gross misdemeanor.   2. If the act or neglect results in the substantial bodily harm or death of a person, for a category C felony as provided in NRS 193.130.

However, there isn’t much help here for victims of gun violence committed by children.  The neglect of duty must be “willful or wanton.”

And here we come to the second problem:  In order for the parents to be liable for the endangerment of others it must be demonstrated that their neglect must be beyond accidental. “It must be knowing and intentionally committed, or committed under circumstances evincing reckless disregard of the safety of the injured persons.” {Blacks Dict}

What does  reckless mean? Usually it means a person consciously disregards “a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law abiding person would observe…”  {Blacks Dict}

Now we have to ponder: What happens when our little playmates, both less than seven years of age, find a firearm in the house — “hidden” in the back of a closet —  if the neighbor’s child is injured (or Heaven forefend, killed) in the act of “playing with the gun,” is it “willful, wanton, and reckless” for the parents to have assumed the firearm was safely secured?

There’s plenty of time between now and the opening of the 2015 session of the Nevada Legislature to consider some of the following questions:

#1.  Is it fair to the victims of gun violence perpetrated by minors that practically no liability attaches to their parents or legal guardians for the actions of their children?

#2. If the answer to the first question is “no,” then what are the appropriate modifications to NRS 41.472 to remediate that? What modifications should be made to NRS 200.300.

#3. Would we be less likely to read or watch reports of accidental shootings of children, or shootings by children if NRS 200.300 were amended to require parents or guardians to store firearms in locked containers, with ammunition kept in a separate location? Even if such a requirement did not immediately lead to fewer tragedies, would the modification of NRS 200.300 offer the victims better recourse to the law in the instance of a shooting tragedy?

Such modifications will surely be met with the usual intransigence of the NRA and its allies, however, this is really not a 2nd Amendment issue.  No one would be prohibited from gun ownership by adopting any modifications or improvements on our current “access and storage” statutes — gun owners would simply be required to store weaponry more safely and securely.

Another common complaint from gun enthusiasts is that these laws are unenforceable.  That would depend upon the perception of enforcement — if in the wake of a tragedy such as took place recently at Sparks Middle School, and in 2006 at Pine Middle School, parents were held liable for the actions of their children might not more parents and guardians be inclined to more securely store firearms to avoid enhanced liability?

Those who purport to advocate on behalf of the victims of crime, and especially those victimized by gun violence, should be moved to consider how we might offer those victims more legal options for holding accountable those who make firearms all too accessible to youngsters who have not the maturity and judgment necessary to comprehend the nature of their actions.

Indeed, if we are going to attach the words “accountability” and “responsibility” to various and sundry issues associated with individual behavior, then it behooves us to start holding those individuals who allow juveniles access to firearms responsible and accountable.

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