Adult Arrested Child Death (18 and Under) Child Under 18 (as Shooter) Children and Guns Mississippi June 1, 2023June 5, 2023 by Gary Klein

THURSDAY, JUNE 1, 2023

11-year-old Finds a Gun in a Closet in His Home

Tracy Smith, age 34, of St. Louis, Missouri was charged with reckless child endangerment after the 11-year-old son of his girlfriend found his loaded gun and used it to shoot and kill himself. The boy, David Winston, took the gun from a purse belonging to his mother that was hidden on a shelf in a closet that he had access to. Police found Winston unconscious and not breathing with a Taurus .38 caliber revolver lying next to him.

According to a probable cause statement filed in court, both Smith and the boy’s mother told police that Winston “was autistic and was known to get into things and take items when left unsupervised. He was also known to watch TV by himself in the room where the gun was kept. Smith admitted that he didn’t have a gun safe, gun lock or holster, exposing the trigger to anyone who gained access to it.”

“The Tracy [Smith] I know is a good guy. He loved his girlfriend’s four children like those were his kids. He has two sons of his own who are 7 and 8 years old,” a coworker said. “We were all together a couple of days ago talking, laughing and having a good time. Now, I’m going through the motions of losing my brother and his stepson. That’s real heartbreaking,” said Smith’s brother.

Winston is reportedly the 27th child shot in St. Louis already this year. Eight of those children have died.

Sources:

Kelsi Anderson, Travis Cummings, “Man Charged With Child Endangerment, Gun Theft After Boy Fatally Shoots Himself in St. Louis,” ksdk.com (June 2, 2023).

Robert Townsend, “5 On Your Side Uncovers New Details in Self-inflicted Shooting of 11-year-old Boy,” ksdk.com (June 2, 2023).

Accident with stolen gun Charge of Reckless Endangerment Child Found Gun in Home Child Found Gun in Purse David Winston Tracy Smith

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CHILDREN AND GUNS

Criminalizing the Negligence of Caregivers May Let Manufacturers Off the Hook

It is quite clear from any rational child safety perspective that manufacturers should be discouraged or prevented from designing guns that children can easily fire. Better designs can be achieved with effective external manual safeties, magazine safety disconnects, heavier trigger pulls or trigger designs that small hands can’t manipulate. Certainly, it would help for manufacturers to face legal liability for defective design choices that result in injuries or deaths when kids get their hands on a gun.

This reality butts up against the natural tendency in state child access prevention (“CAP”) laws to criminalize the negligence of parents and caregivers who leave loaded guns where toddlers can find them. Unfortunately when grieving parents are prosecuted and convicted of any crime, one consequence is that the conviction triggers a provision of the Protection of Lawful Commerce in Arms Act (PLCAA) which fully protects manufacturers from liability for their design defects. The conundrum, the knot that we create with sensible CAP laws, is that by emphasizing the personal responsibility of parents and other caregivers to keep guns away from children by criminalizing caregiver negligence, we give gun manufacturers a free pass to design unsafe weapons.

Two Cases to Think About:

In May 2016, Enrique Chavez, an LAPD police officer, was left paralyzed from the waist down after his Glock was accidentally discharged by his three-year old son from the back seat of his car. Unbeknownst to Chavez, the boy had managed to pull the loaded pistol from under the front seat, where it was stored. Prosecutors were apparently unwilling to charge a law enforcement officer with criminal negligence in connection with the incident.

In a subsequent personal injury lawsuit brought by Chavez against Glock, he claimed “the trigger energy on the Glock is so low that it was easier to pull the trigger on the Glock than on cheap, plastic toy guns ordered off the Internet.¹ Chavez’s expert witness offered the opinion that “the combination of design features of the Glock 21—that is, the “light trigger pull,” the spring-loaded-to-fire striker (‘half-cocked and unlocked’) and lack of any manual safety or grip safety typically found on other pistols—created an unnecessary and dangerous risk of accidental discharge.”² The case was settled for a substantial but undisclosed sum after the California Court of Appeals sent the case to the jury to decide whether Glock’s design is defective.

So why aren’t there more cases like this in the many instances in which toddlers fire guns and kill or maim themselves or others?

The answer lies in a troubling provision of the (“PLCAA”). People know that PLCAA has a specific exception to gun manufacturer immunity that allows lawsuits arising “ directly from a defect in design or manufacture of the product, when used as intended or in a reasonably foreseeable manner.”³ It is less well known that PLCAA contains an exception to the exception-- if “the discharge of the [firearm] was caused by a volitional act that constituted a criminal offense” even if the defect also contributed to the accident. In practice, this means that whenever someone is charged with a crime in connection with a gun accident, the potential for manufacturers’ liability tends to evaporate.

A second legal case illustrates this problem:

In 2001, 13-year old Billy Swan accidentally shot and killed his young friend Josh Adames while playing with his father’s service weapon, a Beretta pistol.⁴ Billy believed, incorrectly, that the weapon would not fire with its magazine removed.⁵ After the incident, Billy Swan was adjudicated delinquent based upon the finding of the juvenile court that the boy committed involuntary manslaughter and reckless discharge of a firearm when he shot Josh.

The family of Josh Adames then sued Beretta for the design defect inherent in marketing a gun without sufficient basic safety features, including something that would prevent it from firing with the magazine removed. He also asserted that the pistol had an adequate loaded chamber indicator that failed to alert anyone using it when it was loaded.

The Plaintiffs’ expert testified: “that a magazine disconnect device would have prevented the shooting. The magazine disconnect was invented in 1910 and disables a semiautomatic pistol from firing when the magazine is removed. [The expert] testified that Beretta produced and sold Beretta 92 Series handguns with a magazine disconnect for use by police departments such as the Royal Canadian Mounted Police, the United States Veterans Administration and the correctional department of New York City. [He further] noted [that] more than 300 other models of handguns … incorporate a magazine disconnect safety, and testified that, in his opinion, any handgun without a magazine disconnect is defective. In addition, [the Plaintiffs’ expert] testified that, in the absence of a magazine disconnect, the Beretta required a good chamber-loaded indicator. [He] said that the chamber-loaded indicator on the Beretta 92FS was not sufficient to warn a user that the chamber had a bullet in it because the user could hardly see the indicator.”

The Adames family presented a classic case that their son’s wrongful death was caused by a design defect. However, the Court found that the PLCAA immunity prevented the case from going to trial. It held that, in light of Billy’s juvenile adjudication concluding that he had committed involuntary manslaughter,⁶ there was a volitional criminal act that, under PLCAA, had to be conclusively considered the sole cause of Josh Adames’s death.⁷ Thus, the immunity was applied and Berretta was fully protected from any claim that a design defect caused or contributed to the victim’s death.⁸

Conclusion:

Either Congress needs to repeal PLCAA, in whole or in part, so that gun manufacturers can’t hide from their share of responsibility when any other person involved in an accidental shooting faces criminal liability, or we need to think carefully about advocating for more prosecutions of parents and caregivers who thoughtlessly leave loaded guns where children can find them. Because ongoing divisions in society make the former option unlikely, we need to exercise care in our advocacy for CAP laws at the state level. Perhaps it doesn’t also make sense to prosecute careless, but grieving parents.

Notes:

1.Bob Owens, Glock Settles Negligent Discharge Case With Paralyzed Ex-LAPD Cop, Bearing Arms (May 12, 2016).

2. Chavez v. Glock, Inc., 207 Cal.App.4th 1283, 1298 (Court of Appeals, 2d District, 2012).

3. 15 U.S.C. § 7903(5)(a)(iii).

4. Although the incident happened before PLCAA was passed, the statute included a provision that made its immunities applicable retroactively. 15 U.S.C. § 7902(b).

5. Adames v. Sheehan, 233 Ill. 276, 281 (Ill. 2009).

6. The court did not find merit in the argument that the delinquency adjudication was civil rather than criminal in nature. In concluded instead that the delinquency adjudication was a civil determination of a juvenile crime. Id. at 313.

7. Id. at 309-312.

8. Id. at 317. In another similar case, the victim was a convicted felon. His unlawful possession of a Glock pistol was found to be a volitional act that, by itself, made Glock immune from any liability for a gun defect that may have caused his accidental death when the gun fired while he was attempting to put it in its case. Ryan v. Hughes-Ortiz, 81 Mass.App.Ct. 90 (Ma. App. 2012).