Category Archive: Gun Safety

FATHER LOSES CUSTODY OVER UNSECURED, LOADED FIREARM

Father loses custody over unsecured loaded firearm

In a recently published decision, January 24, 2017, a Court of Appeal in California upheld a father losing custody of his children in a juvenile court dependency case (Child Protective Service case). His children were a 4-year old girl and a 6-month old boy. The father was a licensed security guard who had a permit to carry an exposed firearm. He had been unemployed for several years and was the children’s primary caretaker. The father stored a loaded 9-millimeter semi-automatic handgun with extra magazines and loose ammunition in a closet between the kitchen and the bedrooms. The gun was in a black nylon bag on the third shelf from the bottom about four feet up from the ground. It was accessible to his children.

The father was under investigation by the Drug Enforcement Agency (DEA). He was observed leaving his house. His truck was stopped and the DEA found three pounds of crystal methamphetamine in the truck. During questioning, the father told the police about his loaded firearm in the hall closet. The police found the gun and notified Child Protective Services of the father’s endangering his children by leaving a loaded firearm in a location accessible to his children. A dependency petition was filed in Juvenile Court to remove custody of the children from their father. The court had no problem with finding that a young child with access to a loaded gun is at substantial risk of serious physical harm. The court’s research did not find any published cases in California on this issue, but did find a number of published decision from other states (New York, Ohio, Florida, New Jersey, and the District of Columbia) which also removed children from their parent(s) due to leaving a loaded firearm accessible to children. The court did cite a California case which found that leaving drugs in a location accessible to their children exposed the children to substantial risk of serious physical harm. It manifested a “gross lack of attention to the child’s welfare.”

The court referred to cases from the New York courts which found a parent endangers a child by leaving a firearm within reach of a child. In one of the cases cited the mother left a loaded gun on a bed accessible to her 3-year-old son and next to her 5-month-old daughter who was in a crib, thereby creating an imminent danger that their physical, mental, and emotional health would be harmed. In another published decision, the New York Appellate courts upheld a finding of parental neglect where the parent was storing illegal guns in the home where the children had access to them. In a third case, the court found parental neglect where the father kept “a loaded semi-automatic gun in a plastic bin near where the child slept.”

Please review my prior blog where a father negligently stored a loaded revolver in the garage. His children and a neighbor boy found the loaded handgun while playing in the garage. The neighbor boy was shot and killed. The father was criminally prosecuted for child endangerment. He received a sentence of 4 years in prison. A New Jersey father received a 3-year prison sentence for negligent storage of a firearm. He kept an unlocked, loaded .22 caliber rifle in his bedroom. His 4-year-old son found the rifle, took it outside, and shot his 6-year-old friend in the head. The child died the next day.
I cannot stress enough that both parents have a duty to protect their children and not expose them to substantial risks to their safety and/or emotional well being. It is not sufficient for either parent to say it is not my gun and that the other parent is responsible for it. Make sure any guns in the home are kept in a locked, secure gun safe and your children cannot gain access to them without parental supervision.

 

ERADICATING GUN VIOLENCE-IF JAPAN CAN DO IT, CAN THE UNITED STATES?

Replicating the lack of gun violence in Japan here in the United States.

On January 10, 2017, the British Broadcasting Service published a blog on how Japan has almost eradicated gun violence. It sets forth that in 2014 there were just 6 gun deaths in Japan, compared to 33,599 in the U.S. In 2015 there were 372 mass shootings, killing 475 people and wounding 1,870 in the U.S. according to Mass Shooting Tracker. There were 64 school shootings in 2015. Some 13,286 people were killed in the U.S. by firearms in 2015 and 26,819 people were injured. These figures exclude suicide. Of all the murders in the U.S. in 2012, 60% were by firearms compared with 31% in Canada, 18.2% in Australia and just 10% in the U.K. (BBC-Guns in the U.S: The Statistics Behind the Violence). The death toll between 1968 and 2011 eclipses all wars ever fought by the United States. There were about 1.4 million deaths in that period, compared with 1.2 million deaths in every conflict from the War of Independence to Iraq.

Before you can get a gun in Japan where only shotguns and rifles are allowed, there are mental health and drug tests. You must attend an all-day class, take a written exam, and pass a shooting range test with a mark of at least 95%. Handguns are banned outright. The law restricts the number of gun shops. You can only buy fresh cartridges by returning the spent cartridges bought on your last visit. The police must be notified where the gun and the ammunition are stored-and they must be stored separately under lock and key. The police will inspect guns once a year. Your gun license runs for three years at which point you have to attend the course and pass the tests again.

Japanese police rarely use guns and put much greater emphasis on martial arts. All are expected to become a black belt in judo. They also practice kendo–fighting with bamboo swords. In 2015 only six shots were fired by Japanese police nationwide. If a person is being violent or drunk they will get huge futons and essentially roll up the person who is being violent or drunk and carry them back to the station. The police never carry weapons off-duty, leaving them at the station when they finish their shift. They are required to account for every bullet shell.

The U.S. spends more than a trillion dollars per year defending itself against terrorism which kills a tiny fraction of the number of people killed by ordinary gun crime. According to an article in the L.A. Times, Melissa Healy sets forth that over the last 10 years influenza has claimed on average just short of 33,000 lives a year, motor vehicle accidents just over 35,000 lives each year, and cancer of the urinary system just over 32,000 lives. Gun violence claims an average of about 33,000 lives a year. All but gun violence have a large and active community of medical or public health research, fueled largely by federal funds, exploring ways to reduce or prevent fatalities. In a 1996 funding bill, gun rights advocates and their allies on Capitol Hill forbade the use of any money being appropriated for the Centers of Disease and Control and Prevention “to advocate or promote gun control.” Over the ensuing years, that ban was extended to other agencies, including the National Institute of Health.

The recent shooting in the Fort Lauderdale airport shooting is an example of how the police authorities (FBI and local police) appear to be without a lawful means and/or are powerless to seize a mentally unstable person’s weapon. The shooter told authorities in Alaska he had watched Jihadist videos and they were controlling his mind. Sources quoted the police as saying he clearly stated “he did not intend to harm anyone.” They referred him for a psychiatric evaluation. This former soldier ended up killing five people and injuring eight at the Ft. Lauderdale airport. Last year a man inspired by IS killed 49 people at a gay nightclub in Orlando, FL. The FBI had been given information about him prior to the killings. The carnage appears to be rampant as it is constantly being reported by the media.

You might say to yourself there is no chance of gun control because the gun lobby in the U.S. is too powerful. I’m sure the same sort of language of hopelessness was used when the Federal Civil Rights Act was first introduced and later enacted in 1968. The school shootings, mass killings, and senseless killings will continue in the United States as long as there is a proliferation of guns. Congratulations to the Japanese people and their legislators to almost eradicate gun crime in their country.

Please review some of my prior blogs:
Civil Liability for Negligent Storage of Firearms;
Father Faces Prison Sentence for Negligent Storage of His Firearm;
Guns–One of the Leading Causes of Death in Children Under 18 in the United States-Part 1 andPart 2;
Who Should be Held Responsible for a 5-year old killing his 2-year old sister;
Ten-year old Takes Semiautomatic Gun to School.

 

NEW PROTECTION FOR FAMILY MEMBERS FROM GUN VIOLENCE

Gun Violence Protection for Parents

In a recent article in the Sacramento Bee, Dr. Garen Wintemute, Professor of Emergency Medicine and Director of the Violence Prevention Research Program at UC Davis School of Medicine, set forth these statistics: “The shootings at Columbine, Virginia Tech, Aurora, Sandy Hook and now San Bernardino resulted in 97 deaths, not counting shooters. In 2013 we lost 89 people per day, on average to firearm homicide and suicide. In the 10 years ending in 2013, we lost more civilians to firearm violence than we lost in combat during World War II-more than we lost in combat during all other conflicts in our nation’s history, from the Revolution through Iraq and Afghanistan combined.” The statistics are alarming. Concerned family members need to be pro-active to protect themselves, loved ones and others.

Effective January 1, 2016, in California, new Gun Violence Temporary and Permanent Restraining Orders can be authorized by a court and enforced by law enforcement. Temporary Restraining Orders will be issued if a law enforcement officer asserts and a judicial officer finds that there is a reasonable cause to believe that subject of the petition poses an immediate and present danger of causing personal injury to himself, herself, or another or that the person in the near future posses a substantial likelihood, by having in his or her custody or control a firearm, of causing personal injury to himself, herself, or another. (California Penal Code sections 18100-18250). It must be shown that the person poses a significant danger in the near future to themselves or others and that less restrictive alternatives have been tried and found to be ineffective or inadequate or inappropriate for the circumstances of the subject of the petition.

An immediate family member of a person may also file an ex parte petition to the court to issue a Gun Violence Restraining Order. Immediate family member means any spouse, whether by marriage or not, domestic partner, parent, child, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.

If a Temporary Restraining Order is issued and the weapons seized, a hearing must be set within 21 days before the court to determine whether the Order should remain in force and effect for a year. The restrained person and the family members seeking the Restraining Order can each request annually either the Order be dismissed or be extended for another year. An ex parte petition to seek a Temporary Restraining Order shall be issued or denied on the same day that the petition is submitted to the court unless it is filed too late in the day to permit effective review.

What sort of evidence shall the court review before issuing the Temporary or Permanent Restraining Orders? The court may examine the petitioner and any witnesses under oath or may review a written affidavit signed under oath by the petitioner and witnesses. The court shall consider recent threats of violence or an act of violence by the subject of the petition to themselves or others, a violation of emergency protective orders already issued by courts, a conviction for firearm related offenses, a pattern of violent acts or violent threats within the past 12 months, unlawful and reckless use of a firearm, attempts to use physical force or threats of physical force, prior arrests, evidence of recent acquisition of firearms, ammunition, or other deadly weapons, and police reports or convictions that involve controlled substances or alcohol and ongoing abuse of the same.

TIME FOR STATES TO ENACT GUN STORAGE LAWS

States need to enact gun storage laws.

As a former prosecutor and having spent over forty years representing adults and juveniles, I have seen the tragic consequences of an unsecured gun. In 1979, I represented a 16-year-old girl who shot at an elementary school playground across the street from her home, killing the principal and a custodian and wounding eight children and a policeman. Her father had given her a .22 rifle for Christmas with hundreds of rounds of ammunition. Did he suspect she would do what she did? No. He and his daughter would go shooting in the hills. Without access to the gun and ammunition that tragedy would not have taken place. Wikipedia reports there have been 470 school shootings in the U.S. since 1764. Not all of these shootings were by minors but a good number of them were. How many of those school shootings, where minors were involved, would have occurred without the minor having access to guns?

Washington State citizens are to be commended for their efforts and voting to pass Initiative 594 strengthening the laws in that state regarding background checks concerning the sale and transfer of guns. Organizations like the Washington Alliance for Gun Responsibility and their sister organizations worked long and hard to promote the facts and get out the vote. In my opinion, more legislative work needs to be done to prevent tragedies like Marysville, the 470th, school shooting in the U.S., from occurring again and again on our school campuses.

In April 2014, in San Diego, CA, Todd Francis, 56, was sentenced to four years in prison for two felony counts of child endangerment. He had left a 9 mm pistol in his garage. He thought it was hidden and unloaded. His 9-year-old daughter and a 10-year-old neighbor boy found it. The boy suffered a bullet wound to his chest and died from the wound. The facts concerning the case and the charges can be found in one of my prior blogs Father Faces Prison Sentence for Negligent Storage of His Firearms.   After his plea of guilty, Todd Francis made this statement to the press: “No matter how well you think you might have hidden your weapons or stored your ammunition, please never underestimate children, they will find things, and we really want to make sure that no one else gets harmed.”

In addition to laws pertaining to manslaughter and child endangerment, California also enacted laws regarding the storage and securing of weapons. California Penal Code section 25100 has both a felony and a misdemeanor component to the charge. The law says that a defendant who keeps any loaded firearm within any premise under his or her custody and control, and knows or reasonably should know a child (minor under the age of 18) was likely to gain access to the firearm without the permission of the child’s parent or legal guardian, and kills or injures another is in violation of the law. The state has also enacted civil liability laws addressing the same concern. See my blog Civil Liability for Negligent Storage of Firearms.

School shootings will continue. Minors, feeling angry and depressed, will do crazy things to get the attention of others. They know if they shoot up a school or even threaten to shoot up a school they will get the attention of their classmates and the press. We all have to work together, NRA and advocates for Gun Responsibility, to make every effort to encourage gun owners to safely and properly secure their weapons so minors cannot get access to them without direct consent and supervision of a responsible adult.

FATHER FACES PRISON SENTENCE FOR NEGLIGENT STORAGE OF HIS FIREARM

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A 56-year-old father in San Diego, CA, is awaiting sentencing and is facing a possible seven year prison sentence after having pled guilty to two counts of felony child endangerment under circumstances likely to cause death or great bodily injury. A previously posted blog explains the facts of the case and the charges the father was facing.

Time and time again we regularly see stories in the news of minors getting possession of guns from their homes and committing senseless killings and/or injuring others. See my prior blogs “Who Should be Held Responsible for a 5-year old boy killing his 2 Year-Old Sister with his .22 Caliber Rifle”, “Ten Year Old Takes Semiautomatic to School”, “When Will Gun Owners Learn to Lock Up Their Guns.” and “Guns–One of the Leading Causes of Death of Children Under 18 in the United States, Part I and Part 2.” I have no reason to believe the parents of these minors knew or expected their sons or daughters would shoot someone or cause harm to others. The reality is that minors have an attraction to guns. If they get their hands on a gun they are going to want to point it, pull the trigger, and, in some cases, do harm to others or use them in self defense. It is not a defense that you had no idea your son or daughter would do such a thing and/or that they were trained in gun safety and knew better. Kids will be kids. Guns are an attractive nuisance. Given the right circumstances they, like adults, are capable of committing terrible crimes. You as a parent are required by law to safely secure any weapons you own or have in your possession and not permit your minor access to them.

Having your weapon under your pillow or in the night stand next to you is not safely securing your weapon. It is not a defense that you are in law enforcement. You should know better. In one of our blogs we talked about a three-year-old who got his hands on his police officer father’s service revolver and pulled the trigger. The bullet struck the father and rendered him a paraplegic.

BOTH PARENTS HAVE A DUTY TO PROTECT AND ENSURE THEIR WEAPONS ARE SECURELY STORED AND MINORS CANNOT ACCESS THEM WITHOUT PARENTAL SUPERVISION

The duty to make sure you are not endangering your child or another child falls upon both parents. It is not a defense that your husband or wife owns the gun/s and is responsible for safely storing them. It is not a defense that you or your husband or wife grew up with guns, took your kids to gun safety classes, and never dreamed they would hurt someone with a gun.

The charges the father in San Diego pled guilty to is a predictor of more similar prosecutions to come. The senseless gun violence will continue with regularity as long as parents don’t keep these dangerous weapons securely locked up and not allow minors access to the guns without parental supervision. Discuss gun safety with your minors. You may be responsible with your guns, but your minors friends and families may not be.

 

CIVIL LIABILITY FOR NEGLIGENT STORAGE OF FIREARMS

shotgun

Michael C., age 16, left his home in California shortly after 8:00 p.m. He took the family car, some credit cards, and his father’s Swedish Mauser military rifle equipped with a telescopic sight. About 6:00 the next morning he stationed himself on an overpass and started to fire at the passing vehicles. He shot and killed three people and wounded others. Michael then put the rifle to his head and killed himself.

Michael’s parents and Michael’s estate were sued for damages. It was alleged that Michael’s parents were negligent in making firearms available to Michael. It was further alleged they were negligent in their training, supervision and control of Michael. For the purposes of this blog, we will address the allegation of negligent storage of firearms.

Negligent Storage Of The Rifle In A Locked Cabinet

Michael’s father kept his rifle and its supply of ammunition in the family garage in a locked cabinet. Michael knew where the two keys to the cabinet were located. He used one of the keys to obtain the rifle.

A published California Appellate Court opinion addressed the legal issues presented by the above facts. The court permitted the case to go forward to a jury on the issue of Negligent Storage of the Rifle. The court set forth the following general principles in its decision: 1. “A…rifle is a lethal weapon whose sole function is to kill human beings and animals of comparable size. A person dealing with a weapon of this kind is held to the highest standard of care;” 2. “A majority of other jurisdictions have considered it actionable negligence for a person to leave a firearm in a place where he should foresee it might fall into the hands of a child.”

Absolute Liability For Permitting A Minor To Have A Firearm Or
Leaving A Firearm In A Place Accessible To The Child

In addition to the parents being sued for negligent safeguard of a firearm, the parents are subject to an additional basis for liability. California Civil Code section 1714.3 adopted by the California legislature in 1970 makes a parent liable in an amount up to $30,000.00 for injury or death to one person proximately caused by the discharge of a firearm by his child if the parent permitted the child to have the firearm or left it in a place accessible to the child. The amount can be $60,000.00 if more than one person was killed or injured. This is described as absolute liability and negligence does not have to be proved.

Grandfather Liable For Leaving Loaded Gun In An Unlocked Dresser Drawer

The opinion also referenced a case in Pennsylvania where a grandfather was held liable for injuries inflicted by his grandchild with a loaded gun which the child found in the grandfather’s bedroom in an unlocked dresser drawer. The court in Pennsylvania found the grandfather has a duty to exercise extraordinary care to see no harm would be visited upon others as a consequence of his conduct.

 

HELP FOR MENTALLY ILL YOUNG ADULTS FASCINATED WITH GUNS AND VIOLENCE

Mentally Ill

Adam Lanza is the 20-year-old who shot and killed his mother, entered Sandy Hook Elementary School, and shot and killed 6 adults and 20 first graders. As reported in the New York Times, the State of Connecticut has issued a report with more details about Adam’s life at home and his bizarre behavior. His case is an extreme example of a young man who was clearly mentally ill. His mother had him in counseling and he reportedly was prescribed medication but would not take it. He spent the final months of his life mostly alone in his room. He was preoccupied with violent video games, one of which was called “School Shooting.” He possessed a video of a child being shot. One of his pictures was of himself with a gun to his head. He had clippings throughout his room of school shootings. For a 5th grade class project he produced a book called “The Big Book of Granny.” It depicted a Granny with a cane that shot people. In the 7th grade, a teacher noted he was intelligent but was obsessed with violent imagery. His mother would take him to a shooting range. She was planning on buying him a pistol for Christmas. Instead he took several of her guns, killed her while she slept in bed, and went to Sandy Hook School to shoot the staff and the children.

What to do and where to go for help:

1. Remove any guns, weapons or implements for hurting others or themselves from the home. Do not have guns and ammunition available for your young adult with mental illness to access. Do not promote shooting or possession of any weapons with a mentally ill adult. Generally the first person killed by a mentally ill adult, young or old, who commits violence will be against their parents, their spouse or their relatives in the home.

2. Seek mental health treatment for your young adult. Consult a psychiatrist and a psychologist. Make sure the treating doctors know all that is taking place at home and your concerns about the mental health of your young adult.

3. It is quite common for a mentally ill young adult to not take the medication that has been prescribed for them by a psychiatrist. If your young adult is making threats to harm someone else or themselves, call the police and request a mental health detention and examination to determine whether they are a danger to themselves or others. In California this is called a Welfare and Institutions 5150 evaluation. If your adult has had such a commitment, they are not permitted to possess or own firearms.

4. The likelihood is that your young adult will be kept a day or two in a mental health unit for an evaluation and released. Be sure to let the staff at the mental health unit know all the concerning facts about your young adult and why you believe they are a danger to others or to themselves.

5. Have the psychiatrist to make a referral to County Mental Health for an evaluation to determine whether a mental health conservatorship should be established for your adult child.

It has been my experience most County Mental Health evaluators don’t want to impose a conservatorship on young adults. If the schizophrenia and paranoia is drug induced, they will not want to handle them. Young adults are harder to handle than older adults and trying to find a suitable placement can be difficult.

Assuming you have tried all of the above and gotten nowhere. Your mentally ill young adult is not taking their medication. They still have fantasies of death and dying. They still want to watch and play violent video games. You are scared of being killed or that someone close to you may be killed. I would tell you to see if you can have your young adult arrested for a violation of the law. Have they stolen from you, assaulted you, and/or broken into your room/home? If so, call the police and demand they be arrested. Sadly our mental health hospitals today are our county jails and state prisons. When your young adult is in custody, they will soon enough come to understand that if they want to get out of custody they will have to agree to regularly take their medication and abide by the conditions of their release. If they are not following the orders of the court, they are subject to going back to custody.

If none of the above has worked, give consideration to removing your mentally ill adult from your home. Once again, generally if someone is going to get killed, it starts in the home. If you get a restraining order against your young adult and they violate the order, you can ask the court that they be arrested for violations of the restraining order. If they are having to make it on the streets on their own, you are hoping they will come around to agreeing to take their medication and co-operate with their treatment providers as a condition of returning home..

Consult with a local defense attorney in your community who has a reputation for handling mentally ill clients and is familiar with the services in your community for such individuals.

PARENTS OF 12-YEAR-OLD SPARKS MIDDLE SCHOOL SHOOTER FACE POTENTIAL CRIMINAL CHARGES

12 year shooter

On Monday October 21, 2013, a twelve-year-old seventh grade student at Sparks Middle School, in Sparks, Nevada, took a Rugger 9mm semi-automatic gun to school and killed a teacher, shot two students and then killed himself. Sparks Deputy Chief told reporters his investigators believe the 12 -year- old obtained the semi-automatic handgun from his home. The decision to prosecute will be left to the local prosecutor.

On March 24, 1998, eleven-year-old Andrew Golden and thirteen-year-old Mitchell Johnson ambushed teachers and students from nearby trees as students were exiting Westside Middle School in Craighead County, Arkansas. The boys set off a fake fire alarm to cause the teachers and students to exit the school buildings. They shot thirty rounds in rapid succession killing a teacher, four students and injuring nine other students. Three handguns were obtained from the Golden’s residence and an additional four handguns and three rifles came from Golden’s grandfather’s residence. Andrew Golden shared his family’s interest in firearms by competing and winning marksmanship awards. Unknown to his family, he reportedly demonstrated violence by firing his BB gun at animals and other children.

On February 2, 1996, Barry Dale Loukaitis, a fourteen-year-old student at Frontier Middle School in Worthington, Washington, took guns to school and killed his algebra teacher and two students. He had armed himself with his father’s 30/30 lever-action rifle, a .22 revolver and a .25 semiautomatic pistol. He strapped to his chest and waist three belts of additional ammunition and packed a speed loader for the revolver. Over this arsenal he wore a long black trench coat with the inside pocket removed so that he could carry the rifle unseen. He held his classmates hostage for ten minutes before a gym coach subdued him.

On June 4, 2013, in San Diego, California, Todd Francis was arrested and charged with manslaughter, child endangerment, and criminal storage of a firearm. He hid his Sig-Sauer 9mm handgun in the garage. His children were playing in the garage with a ten-year-old neighbor boy. The neighbor boy was shot and killed by one of Todd’s children using his gun. Another man in San Diego was recently charged with and prosecuted for leaving his .22 rifle accessible to his teenage son. The son and two of his friends were playing with it at one of the other boys’ homes when one of the boys was shot and killed.
A criminal defendant can be held responsible for any restitution costs for medical care, funeral expenses, and time off from work. A civil suit for damages could be filed as well. The greatest damage is the loss of life to others and to your own family member. These young shooters are facing life imprisonment. The damage to others is irreversible.

WHAT CAN PARENTS DO?
1. Secure all weapons in a locked gun safe with only the parent having the access key. Make sure it is teenager or kid proof;
2. Impress upon your children they are not to play with firearms or dangerous weapons or devices at your home or at a neighbors home. Take the time to have them read or, better yet, read and discuss with them some of the blogs and articles on the tragedies inflicted on families and others for the criminal use and misuse of guns and dangerous weapons

WHAT GETS MIDDLE SCHOOLERS RECOMMENDED FOR SUSPENSION AND EXPULSION

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1. Sexual misbehavior – Sexual harassment will be sure to warrant a suspension and possible recommendation for expulsion. Seventh and Eigth grade boys and girls are into sex talk. They generally start their conversations on Facebook, Instant Messaging, Instagram, texting and other social media sites. Girls want to encourage the attention from boys so they tease, sext or do other things to get the boy’s interest. Boys can’t wait to talk with the girls and admire what they send them in their photos, texts, and messages. Generally these are boys and girls that attend the same school.

Sexual misbehavior at school is a big “No.” A boy passing a sexual note to a girl will be assessed as “sexual harassment.” The boy will be suspended. Depending on the gravity of what occurred that could turn into a recommendation for expulsion. A boy and girl making out at school behind one of the classrooms is bound to lead to a suspension for sexual harassment for the boy even if the conduct was consented to by the girl. When both the boy and girl are questioned by the vice principal for their conduct, in most cases the girl will say the boy went too far and she did not consent to his sexual touching. This sort of conduct will likely also lead to school police involvement and possible juvenile court charges.  It is not uncommon for seventh and eighth graders to engage in more intimate sexual acts in one of the bathrooms. Most boys and girls of this age view certain sexual acts as not sexual intercourse. The girls can be as equally aggressive as the boys in consenting to and participating in the conduct. Should they be discovered or questioned about their actions, the girl will generally deny consent and the boy will be recommended for expulsion. The law says consent is not a defense to sexual acts with minors under the age of 18. See my prior blog on “Sex Between Minors“.  The police will definitely be called and the minor arrested and either put in custody or referred for prosecution.

2. Threats to kill or cause serious bodily injury. Another way to get a minor suspended and recommended for expulsion is to make a threat on Facebook, by text, Instant Messaging or on a social media site to kill or cause serious bodily injury to another student or an administrator at school. The threat can be made from home and sent to another student by way of the internet. These type of threats are taken very seriously by the school and the authorities. I can guarantee you there will be an immediate suspension pending expulsion. The police will be at your home very soon after they are first notified. They will thoroughly search your home for weapons. Your son or daughter will be arrested. It is not a defense that your son or daughter is being bullied at school, is being threatened, is depressed, has a mental disability, or is just impulsively acting out and does not intend to actually hurt anyone.

3. Drugs/Providing Prescription Medication. I talk about this in my prior blog dealing with high school suspensions and expulsions. The same information applies to middle schoolers. Do not send your minor to school with his or her prescription medication. If your minor ends up providing it to another student, even though no money is exchanged or just to be friendly that is the same as sales of an illegal drug. Under no circumstances have any illegal drugs, seeds, spice or anything else which is not allowed by the school for students to possess. Your minor needs to make sure none of these things are in their backpack, pockets, and clothing. They are not to temporarily hold illegal drugs while another student is being investigated to help out their friend. These types of offenses will lead to suspensions and a possible recommendation for expulsion.

4. Weapons. Boys will often go to school and have a knife or other weapon in their backpack or in their clothing. Quite often the weapon has been mistakenly left in their belongings and they did not intend to take it to school. This is not a defense. Under no circumstance allow your minor to go to school with a gun, a look-alike gun or a BB gun, sling shot, brass knuckles, martial arts weapons, pepper spray, lighter, matches, or anything else which could be used as a weapon. Your minor needs to be responsible to not take these items to school and not be given these items at school to hold for another student or to take home. I can guarantee you another student will tell on them. If substantiated, your minor will be suspended and possibly be recommended for expulsion.

5. Bullying/Fighting. Bullying is being taken more seriously by the schools than in the past. Administrators are under a lot of pressure to get rid of the students who are bullying other students. Impress on your minor not to bully, discriminate racially or taunt with sexual orientation slurs. Your student will end up being suspended and referred for possible expulsion.

We recommend parents frequently supervise their minor’s Facebook, Instant Messaging, texting, and other social media sites.

Be observant as to what is in your minor’s room at home. Do they have a lot of cash that you don’t know where it came from? Are they using drugs?

Little problems become big problems very quickly.

Please read all our blogs to assist you with avoiding behaviors which could lead to suspension and/or expulsion.

GUN OWNER CHARGED WITH INVOLUNTARY MANSLAUGHTER FOR CRIMINAL STORAGE OF HIS GUN

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Having recently returned to his family’s condo, Todd Francis stored some of his belongings in his garage. He is married and has a 14-year-old son and a 9-year-old daughter. Their condo’s garage has a couch and was a hangout for neighborhood kids. On June 4, 2013, Todd and his wife were away. Their 14-year-old son was in charge of his sister. A 10-year-old neighbor boy came over and was playing in the garage with the 9-year-old sister. They found Todd’s Sig-Sauer 9 mm handgun and played with it. The gun discharged and the 10-year-old neighbor boy was shot in the chest and died. Todd, through his attorney, reported the gun was stored in an inaccessible location in the garage, was not loaded, and the ammunition was stored separately.

Todd was recently arrested and booked into custody. He bailed out on $100,000.00 bail. (The bondsman’s non-refundable fee for posting bail would be $8,000.00.) He is to be arraigned on felony charges of Involuntary Manslaughter, Child Endangerment and Criminal Storage of a Firearm.

Manslaughter, CA Penal Code section 192, is the unlawful killing of a human being without malice. It is involuntary if it is in the commission of an unlawful act, not amounting to a felony, or in the commission of a lawful act which might produce death in an unlawful manner, or without due caution and circumspection. Penal Code 192(b). If convicted of this charge, Todd Francis has an exposure of up to four years in custody. The judge can choose to grant probation instead and condition the probation grant on some time in custody or an alternative sentence to custody. The offense is not reducible at a later time to a misdemeanor.

Child Endangerment is covered by CA Penal Code section 273a (a). “Any person who under circumstances or conditions likely to produce great bodily harm or death willfully causes or permits any child to suffer…..or permits that child to be placed in a situation where his or her person or health is endangered shall be punished by imprisonment in a county jail not exceeding one year year, or in the state prison for two, four or six years.” The prosecutor needs to prove for a conviction: 1. the defendant acted under circumstances or conditions likely to produce great bodily harm or death to a person; and 2. the defendant willfully inflicted or permitted unjustifiable physical pain or mental suffering on a child. Willfully inflicted does not require a specific intent to cause harm to someone else. It means the defendant intentionally left a firearm in his garage. The offense is reducible later to a misdemeanor if found guilty of a felony. It does carry a firearm prohibition even if reduced to a misdemeanor.

CA Penal Code section 25100 sets forth that to be guilty of Criminal Storage of a Firearm in the First Degree as a felony the following must be proved: 1.The person keeps any loaded firearm within any premises that are under the persons custody or control; 2. 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 3. The child obtains access to the firearm and thereby causes death or great bodily injury to the child or any other person. The offense carries up to three years in custody. Probation can be granted. It is a felony that can be reduced later to a misdemeanor. The offense does carry a firearm prohibition if later reduced to a misdemeanor.

Todd will be responsible for any restitution costs for medical care, funeral expenses, and time off from work for the boy’s parents. A civil suit could be filed if there are any assets to pursue or if Todd’s family has homeowners or renters insurance. The nightmare for Todd and his family has just started. The nightmare for the family of the 10-year-old boy has already taken place.

A 10-year-old boy is dead because a gun owner unlawfully stored his gun and ammunition. If you or anyone you know owns or possesses firearms, encourage them to lock them securely in a gun safe and not allow or provide any access to the weapons by any minor. You as a parent need to ask your child’s playmates and their parents if there are any guns accessible to them. Tragic accidents happen all the time. Gun deaths are one of the leading causes of death in children under the age of 18 in this country.