Tag Archives: Nevada gun storage laws

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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Locked and Unloaded: Nevada Could Do Better

Child gun deathsWe still don’t know why a 12 year old boy shot a teacher and classmates at Sparks (NV) Middle School.  [RGJ] It’s natural to look for a “motive,” some resolution, or explanation, for the inexplicable.  Given what we do know about the brain, we might never know.  We know, for example, that there is a second period of development in the pre-frontal cortex during  pre-puberty, [PBS] but while we know volumes about the structure of the brain we’re not so informed about the operations of the mind.   What was in the boy’s mind may be unknown; what was in his hand is obvious — a Ruger 9 mm semi-automatic.

Each time these tragedies hit the headlines there is the all too predictable response from gun enthusiasts — We can’t enhance regulations because… Freedom…Liberty…2nd Amendment …Patriotism. What of the “responsible gun owners?”  Perhaps, we could consider a change of perspective.

According to the gun enthusiasts NO impediment is tolerable which might even remotely constrict their “rights” to arm themselves to the eaves — if we accept this then why not consider the possibility that while a person may own all manner of firearms we might give some thought to how those are stored.  The firearm used in Sparks came from home, and there is another home in this country which may have contributed to the stock of stolen weapons that all too often show up in crime statistics.

“Rep. Renee Ellmers’ (R-NC) husband reported an AR-15 rifle stolen from the family’s home in Dunn last week, according to a police report.

The weapon had been left leaning against a gun locker in an unlocked garage on Kingsway Drive, the report said.

The rifle, a gun case and a GPS, with a cumulative value of $1,100, were reported stolen, according to Chief J.D. Pope.  Police think the theft happened on the night of Oct. 15.

“According to the report, they had been out target shooting and brought the gun back and leaned it against the gun safe,” Pope said. “ … The garage door was left unsecured, according to the report.” [Charlotte Observer]

An open garage door, an AR-15… what could possibly go wrong?

One very common bit of advice on gun storage is provided by the state of California:

“Store your gun safely and securely to prevent unauthorized use. Guns and ammunition should be stored separately. When the gun is not in your hands, you must still think of safety. Use a California-approved firearms safety device on the gun, such as a trigger lock or cable lock, so it cannot be fired. Store it unloaded in a locked container, such as a California-approved lock box or a gun safe. Store your gun in a different location than the ammunition. For maximum safety you should use both a locking device and a storage container.”

Following this advice might also reduce the number of successful suicides by children  in this country.

“In the first nationally representative study to examine the relationship between survey measures of household firearm ownership and state level rates of suicide in the U.S., researchers at the Harvard School of Public Health (HSPH) found that suicide rates among children, women and men of all ages are higher in states where more households have guns.  […] The researchers found that states with higher rates of household firearm ownership had significantly higher rates of suicide by children, women and men. In the 15 states with the highest levels of household gun ownership, twice as many people committed suicide compared with the six states with the lowest levels, even though the population in both groups was about the same. […]
“Removing firearms may be especially effective in reducing the risk of suicide among adolescents and other potentially impulsive members of their home. Short of removing all firearms, the next best thing is to make sure that all guns in homes are very securely locked up and stored separately from secured ammunition. In a nation where more than half of all suicides are gun suicides and where more than one in three homes have firearms, one cannot talk about suicide without talking about guns,” he adds.” [Harvard 2007]

Lock’em up unloaded might also alleviate other tragic numbers. Discussing the number of children who are killed or seriously injured by firearms is made more difficult because decisions made at the local level about causation leading to serious under-counting.

“A New York Times review of hundreds of child firearm deaths found that accidental shootings occurred roughly twice as often as the records indicate, because of idiosyncrasies in how such deaths are classified by the authorities. The killings of Lucas, Cassie and Alex, for instance, were not recorded as accidents. Nor were more than half of the 259 accidental firearm deaths of children under age 15 identified by The Times in eight states where records were available.”

Predictably, the NRA pounced on the results, saying more children were killed in falls, accidental poisonings, and because of environmental issues.  The argument is extraneous.  First, merely because more children might be killed by other means doesn’t address the argument that fewer children would be killed if guns weren’t accessible.  Second, if we are seriously under-counting the firearm deaths, then the argument is evidentially  false.  Third, there’s demonstrable obfuscation:

“The rifle association’s lobbying arm recently posted on its Web site a claim that adult criminals who mishandle firearms — as opposed to law-abiding gun owners — are responsible for most fatal accidents involving children. But The Times’s review found that a vast majority of cases revolved around children’s access to firearms, with the shooting either self-inflicted or done by another child.” [NYT 9/13]

Recent headlines offer support for the Time’s conclusion: “Father faces charges in Fayetteville toddler’s death,” [WRAL] when he left a .22 semi-automatic under the family’s couch.   “Michigan toddler finds loaded gun in closet, dies from bullet to the face” [NYDN] “Toddler shot to death in Yellowstone was killed by father’s pistol,” [ChicagoTrib] “Three Year Old Killed … with gun from grandmother’s backpack,” [Yuma Sun] “Kentucky Shooting: Boy, 5, Shoots And Kills 2-Year-Old Sister, Police Say,” [AP] and “Kansas boy, 7, shoots self in head during family gun outing,” [NYDN]

Indeed, there are children killed by being mauled by animals, by being dropped or assaulted, or by being poisoned by household chemicals.  However, the instances of other causes of death doesn’t offer any substantiation to the contention that we ought not consider legislation on gun storage, trigger locks, and smart gun technology.

The state of Nevada doesn’t directly address the safe storage of firearms, and the possible consequences of guns + children.

Nevada’s gun “storage” law is particularly unhelpful:

 “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.  2. As used in this section, “firearm” has the meaning ascribed to it in NRS 202.253.  (Added to NRS by 1995, 1149)”

In short, a parent would have to “know” that the child intended to unlawfully use a firearm before any liability attaches.  How do we “know” if a 12 year old has a “propensity to commit violent acts?”  A three year old?

Massachusetts law takes the storage issue head on:

Section 131L. (a) It shall be unlawful to store or keep any firearm, rifle or shotgun including, but not limited to, large capacity weapons, or machine gun in any place unless such weapon is secured in a locked container or equipped with a tamper-resistant mechanical lock or other safety device, properly engaged so as to render such weapon inoperable by any person other than the owner or other lawfully authorized user. For purposes of this section, such weapon shall not be deemed stored or kept if carried by or under the control of the owner or other lawfully authorized user.

California takes on the issue of children’s access to firearms:

“AB 231 establishes the Firearm Safe and Responsible Access Act, creating a third degree misdemeanor if a person negligently stores or leaves a loaded firearm in a location where they know, or reasonably should know, that a child can access the firearm without permission and the person fails to take proper safety measures.  A third degree misdemeanor carries a penalty of up to 6 months in jail and/or a $1,000 fine.  The bill also requires licensed gun dealers to post this warning in their place of business with other already required postings of child safe storage laws.” [ASMDC]

The California Penal Code specifies storage requirements in homes with children present:

(b)(1)Except as provided in subdivision (c), a person commits the crime of “criminal storage of a firearm of the first degree” if he or she keeps any loaded firearm within any premises that are under his or her custody or control and he or she 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 himself, herself, or any other person.

(2)Except as provided in subdivision (c), a person commits the crime of “criminal storage of a firearm of the second degree” if he or she keeps any loaded firearm within any premises that are under his or her custody or control and he or she 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 injury, other than great bodily injury, to himself, herself, or any other person, or carries the firearm either to a public place or in violation of Section 417. [more]

There are no silver bullets in firearm related death issues.   No single piece of legislation can “solve” problems associated with children’s access to guns, or prevent every school or home tragedy created when children get access to firearms.  However, if this state is truly interested in protecting children there are steps we can take which could ameliorate the situation, or at the very least offer more legal recourse to the victims.

The next session of the Nevada legislature should give some serious consideration to amending our statutes in regard to children’s access to firearms, and to the appropriate storage of firearms in Nevada homes.

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