Kitsap County prosecutors cannot pursue an assault case against a man who allegedly left a loaded handgun within reach of a 9-year-old boy who took the weapon to school, where it discharged and wounded a classmate, the state Supreme Court has ruled.
In a 6-3 ruling that reversed a Court of Appeals decision, the Supreme Court ruled that Douglas Bauer, 52, may have been negligent in leaving loaded guns out in his Allyn house, but his negligence did not directly cause the shooting or make him criminally culpable under state statutes for the assault charge.
“This court has found no Washington case upholding such liability, either, where the accused did not actively participate in the immediate physical impetus of harm,” Justice Sheryl Gordon McCloud wrote in the majority opinion.
“Bauer’s act of gun ownership, in contrast, is not felonious or criminal. His decision to keep loaded weapons around the house is not, in itself, a crime in this state, either,” she wrote.
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On Feb. 22, 2012, the boy took a gun belonging to Bauer, who was dating the child’s mother, and carried it in his backpack to Armin Jahr Elementary School in Bremerton. The gun accidentally discharged, seriously wounding Amina Kocer-Bowman.
Kocer-Bowman underwent five surgeries, including removal of her gallbladder, part of her small intestine and a major vein. She still has a bullet lodged in her spine.
The boy, who pleaded guilty to reckless endangerment and to bringing a weapon to school, was sentenced to a year of probation and counseling. His mother, a felon, pleaded guilty to two counts of unlawful possession of a firearm; her sentence is pending.
Kitsap County Prosecuting Attorney Russ Hauge charged Bauer with third-degree assault. In March 2013, the Court of Appeals ruled that prosecutors could continue their case against Bauer. Bauer appealed the ruling to the Supreme Court.
Hauge said Thursday prosecutors will likely not seek to recharge Bauer in connection with the shooting. But he warned the ruling could have a chilling effect on prosecutors’ ability to charge third parties who caused harm indirectly through negligent or criminal acts.
Hauge — who also chairs the Legislative Committee for the Washington Association of Prosecuting Attorneys — cited the example of a drunken driver who causes another driver to swerve and collide with a third vehicle.
“Up until this decision, it was pretty clear you could charge somebody criminally if you could sue them civilly for their actions. However, we now have no guidance on whether we can do that anymore,” Hauge said.
Dissenting from the majority’s opinion, Justice Steven Gonzalez wrote that the Bauer case should have been heard by a jury.
“It is neither unreasonable nor unwise to allow a jury to decide if it was the firearm owner’s criminal negligence that caused the handgun to be brought to school, to be accidentally discharged, and to seriously injure the young victim,” wrote Gonzalez, who was joined by Justices Mary Fair Hurst and Debra Stephens.
The shooting of Kocer-Bowman was the first of three high-profile child shootings that took place within three weeks in Western Washington.
Jenna Carlile, the 7-year-old daughter of an off-duty Marysville police officer, died after being accidentally shot on March 10, 2012, by a younger sibling who found his father’s loaded and unsecured handgun in the family’s van when the parents were outside the vehicle.
Four days later, 3-year-old Julio Segura-McIntosh fatally shot himself when the boy’s mother and her boyfriend left him unattended inside a car parked at a gas station in Tacoma with a handgun that had been tucked under a car seat.
Prosecutors sought to hold adults responsible for the children’s access to firearms in all three cases.
The Marysville police officer Derek Carlile, 32, was charged with second-degree manslaughter in Snohomish County, but the charge was dismissed after a jury was split on the verdict.
In the Tacoma case, Pierce County Prosecutor Mark Lindquist filed second-degree-manslaughter charges against the toddler’s mother, Jahnisha McIntosh, 25, and her boyfriend, Eric Vita, 24, saying the two were criminally responsible for leaving boy in a car with a gun and without adult supervision
The case against Vita was dismissed because a judge determined it was not foreseeable to him that the toddler would access the gun he’d slipped under the car seat while the mother was still in the car.
The boy’s mother, however, pleaded guilty and was sentenced to time served.
Lindquist said the full reach of the Supreme Court’s decision will not be known for several years.
As it stands, he said, “It does not stop prosecutors from holding people accountable for reckless conduct, but could make it more challenging under some particular facts.”