State Of Washington, V Douglas L. Bauer ( 2013 )

FILED
ED
COURT OF APPEALS
DIVISIOtl14
2013 MAR,8
- AM 11 : 54
IN THE COURT OF APPEALS OF THE STATE OF K0N
WASJFNWSH1N\G`
DIVISION II 8Y
QEPU Y
STATE OF WASHINGTON, No. 43511-
11- 0
Respondent,
V.
DOUGLAS L.BAUER, PUBLISHED OPINION
PENOYAR, J. — The State charged Douglas Bauer with third degree assault after his girl
friend's nine -year old son accidentally shot a classmate with Bauer's gun. The trial court denied
-
Bauer's Knapstad' motion and vagueness challenge. On discretionary review, he argues that (1)
the definition of cause"in the third
" degree assault statute requires affirmative
an " 2)
act "; ( his
actions were not the proximate cause of the assault; ( )he can only be held liable under the
3
and (4)the assault statute is vague as applied to him. Because the State
complicity statute;
alleges Bauer performed an affirmative act, we reject his first claim. As to his second claim, we
conclude "cause" legally means proximate cause. Proximate cause, in turn, involves two
elements: actual cause, which requires a factual determination by the jury, and legal cause, a
legal issue we address by reviewing legal precedent. On this claim, we conclude.the State has
alleged sufficient facts for the jury to find both actual cause and the facts supporting legal cause,
thus the trial court properly denied Bauer's Knapstad motion. Additionally, the complicity
statute does not bar liability here, and the third degree assault statute is not unconstitutionally
vague because all of the elements are defined in statutes or case law.
1
State v. Knapstad, 107 Wn. d 346, 729 P. d 48 (
2 2 1986).
43511 0 II
- -
FACTS
On February 22, 2012, nine -year old TC brought a .45 caliber handgun to school. Near
-
the end of the day, TC reached into his backpack and accidentally pulled the trigger, injuring his
classmate, AK B.
-
The gun was registered to Bauer, TC's mother's boyfriend. TC does not live with his
mother, but he and his siblings would occasionally visit and stay the night. TC took the gun
while he was visiting his mother the weekend before the shooting. TC told the police that he
took the gun off the dresser in Bauer and his mother's downstairs bedroom while the rest of his
family was upstairs. TC and his siblings often sleep in that bedroom, and they explained that
they are allowed to access the downstairs portion of the house, including the bedroom, without
supervision.
The children also stated that there are multiple guns throughout the house, including a
shotgun in the downstairs bedroom, a handgun on the downstairs dresser, a handgun on the
computer desk, a handgun under the couch, and.a handgun in the glove compartment of the car.
None of the guns are in areas forbidden to the children. Bauer and TC's mother both warned the
children to never touch the guns because they were loaded. The police searched the house after
the shooting and found a loaded handgun next to the computer, a loaded shotgun in the
downstairs bedroom, an unloaded handgun in Bauer's car's glove compartment, and ammunition
in a dresser drawer. Bauer told the police that he did not know TC had stolen the gun. He did
admit that he knew—
before TC left his house that weekendthat TC had taken money from the
—
glove compartment of Bauer's vehicle.
TC's guardian stated that he does not allow guns in his home. TC told the police that he
had never held or loaded a gun before and that no one had ever taught him how to use a gun.
43511 0 II
- -
On March 20, 2012, the State charged Bauer with third degree assault and unlawful
possession of a firearm. Bauer filed a Knapstad motion to dismiss both charges. Under
Knapstad, the trial court may dismiss a criminal case before trial when it is clear from the facts
that the State cannot prove a necessary element of the crime. State v. Sanchez, 166 Wn. App.
304, 307, 271 P. d 264 ( 2012). Bauer also challenged the third degree assault statute as
3
unconstitutionally vague. The trial court dismissed Bauer's unlawful possession charge, but it
denied his Knapstad motion and vagueness challenge with respect to the assault charge. Bauer
filed a petition for discretionary review. The trial is stayed pending our decision.
ANALYSIS
I. KNAPSTAD MOTION
Bauer argues that we should reverse the trial court's dismissal of his Knapstad motion
because there is no evidence that he assaulted the victim. Specifically, he argues that the assault
statute requires him to perform an affirmative act, there is no proximate cause, and he can only
be held criminally liable for another's acts under the complicity statute. We hold that the trial
court properly denied Bauer's Knapstad motion because "cause"the third. degree assault
statute means proximate cause and involves issues of foreseeability that are the province of the
jury. Additionally, the complicity statute does not bar Bauer's liability.
To prevail on a Knapstad motion, the defendant must show that there are no material
facts in dispute and that the undisputed facts do not establish a prima facie case of guilt.
Knapstad, 107 Wn. d at 356. A trial court may dismiss a criminal charge under Knapstad if the
2
State's pleadings and evidence fail to establish prima facie proof of all elements of the charged
crime. State v. Sullivan, 143 Wn. d 162, 171 n.2, 19 P. d 1012 (2001).The trial court shall
2 3 3
view all evidence and make all reasonable inferences in the light most favorable to the State.
3
11-
43511-
0
CrR 8. (
c)(
3);
3 State v. Jackson, 82 Wn. App. 594, 608, 918 P. d 945 (1996). may not weigh
2 It
conflicting statements, and it may not base its decision on the statement it finds most credible.
CrR 83( )(will uphold the trial court's dismissal of a charge on a Knapstad motion if no
3).
c We -
rational fact finder could have found the elements of the charged crime beyond a reasonable
doubt. State v. O' eara, 143 Wn. App. 638, 641, 180 P. d 196 (2008).
M 3
Bauer argues that he cannot be convicted of assault because his alleged actions —keeping
loaded firearms where children could easily take themwere not sufficiently a "cause" of the
—
shooting. To explain why we disagree, we must explain how causation is treated in ,
criminal
cases.
We are all familiar with cause and causation in our daily lives. When a tree blows down
in a storm, we expect that wind was the cause. We also recognize that there may be more than
one cause of an event. Perhaps the tree blew down because of both the wind and the saturated
soil. The law refers to cause of this sort as "actual cause."See Hartley v. State, 103 Wn. d 768,
2
778, 698 P. d 77 (1985)referring to actual cause as "cause in fact ")
2 (
In society, we are also familiar with attributing moral blame for an event. In assessing
blame, we take into account many factors. How direct was the cause? Was the person aware of
the risk?Should the person have realized the consequences that resulted? Using a similar line of
reasoning, the law describes a cause for which a person may be held liable as "legal cause."
State v. McDonald, 90 Wn. App. 604, 616, 953 P. d 470 (1998). As in moral assessments of
2
blame, legal cause analysis involves consideration of whether the consequences were apparent
and of the actor's state of . mind in proceeding in the face of these consequences.
whether the The
Foreseeability" is the legal catchword for consequences were apparent.
concept of foreseeability is treated similarly in civil and criminal cases. But the state of mind
4
11-
43511-
0
that must be shown to assess blame in criminal cases is higher than in civil cases. In a civil
negligence case, the claimant must show merely that the actor was not reasonably careful in view
of the apparent risk. Johnson v. Emp't Sec. Dep't, Wn. App. 311, 317, 824 P. d 505 (1992).
64 2
But in a criminal negligence case, the State must show that the defendant's actions were at least a
gross deviation from what a normally careful person would have done. RCW 9A. 8.
d).
010(
1)(
0
Finally, as shorthand for situations where both actual and legal cause are present, the law uses
the concept of proximate cause."Hartley, 103 Wn. d at 777. We now apply this roadmap to
" 2
this case.
We hold that "cause" as used in the third degree assault statute should be construed as
proximate cause" because it has been so construed in similar criminal statutes. Under a
proximate cause analysis, the State has alleged facts to support a jury's finding of both actual and
legal cause. Additionally, Bauer's arguments are unpersuasive because he performed an
affirmative act, his proposed definition of cause comes from distinguishable case law, and the
presence of supervening acts is a jury question. Therefore, we affirm the trial court's denial of
Bauer's Knapstad motion.
A. Statutory Interpretation
The State charged Bauer with third degree assault. The third degree assault statute
requires the State to prove that Bauer ','[ ith criminal negligence, cause[d]
w] bodily harm to
another person by means of a weapon."RCW 9A. 6.We must interpret the meaning
d).
031(
1)(
3
of cause"in this statute.
"
The legislature has provided` uidance
g for construing its criminal statutes. RCW
020.
9A. 4. The general purposes of the criminal code are "[ o forbid and prevent conduct that
0 t]
inflicts or threatens substantial harm to individual or public interests;" "[ safeguard conduct
t] o
5
11-
43511-
0
that is without culpability from condemnation as criminal;" "[ o give fair warning of the
and t]
nature of the conduct declared to constitute an offense."RCW 9A. 4. With these -(
a)
020(
1)(
0 c).
goals in mind, t] provisions of the criminal code] shall be construed according to the fair
"[ he [
import of their terms but when the language is susceptible of differing constructions it shall be
interpreted to further the general purposes stated in this title."
RCW 9A. 4.
020(
2
0 ).
As noted, the third degree assault statute requires the State to prove that Bauer, w]
"[ ith
criminal negligence, cause[d]bodily harm to another person by means of a weapon." RCW
9A. 6. Cause is not statutorily
d).
031(
1)(
3 defined. When a statutory term is undefined, it is
given its ordinary meaning, which may be discerned from the dictionary. State v. Gonzalez, 168
Wn. d 256, 263, 226 P. d 131 ( 2010). Additionally, courts may look to the common law to
2 3
define terms not given a statutory definition. State v. Byrd, 125 Wn. d 707, 712, 887 P. d 396
2 2
1995);
RCW 9A. 4. ( " provisions of the common law relating to the commission of
060 The
0
crime and the punishment thereof, insofar as not inconsistent with the Constitution and statutes
of this state, shall supplement all penal statutes of this state. ").
In the following paragraphs, we apply these rules of statutory interpretation to RCW
d)
031(
9A. 6. the word "cause."We determine that "cause"means "proximate cause,"
1)(
3 and a
common legal concept. Proximate cause contains two elements, actual cause and legal cause.
We conclude that, under the meaning ascribed to these terms under Washington law, the State
has alleged sufficient facts to support a jury finding that Bauer's alleged conduct caused AK B'
-s
harm.
2
We apply the rule of lenity to construe criminal statutes in the defendant's favor only when the
statute is actually ambiguous. State v. McGee, 122 Wn. d 783, 787, 864 P. d 912 (1993).
2 2
Moreover, a] "[ criminal statute need not set forth with absolute certainty every act or omission
that] is prohibited if the general provisions of the statute convey an understandable meaning to
the average person."State v. Prather, 30 Wn. App. 666, 670, 638 P. d 95 (1981).
2
6
11-
43511-
0
B. Cause Means "
Proximate Cause"
When criminal statutes require the State to prove a defendant caused a specific result,
Washington courts have construed this element to require a showing of proximate cause. For
example, the homicide by abuse statute requires proof that the defendant " ause[d] death"of
c the
the victim, and courts have stated that proximate cause is an element of the crime of homicide by
abuse. See State v. Berube, 150 Wn. d
2 498, 510, 79 P. d 1144 (2003). The second degree
3
murder statute also requires proof that the defendant "cause[d] death" of the victim, and
the
courts have stated that this requires a showing of proximate cause. State v. Perez -Cervantes, 141
Wn. d 468, 475 80, 6 P. d 1160 (2000) discussing the
2 - 3 ( proximate cause requirement). The
controlled substances homicide statute requires proof that the controlled substance "result[ed]in
the death of the user,"
and Division Three of this court has held that there is no evidence of
legislative intent to distinguish "
causing death"from " esulting in death" and that both require a
r
showing of proximate cause. State v. Christman, 160 Wn. App. 741, 754, 249 P. d 680, review
3
denied, 172 Wn. d 1002; 257 P. d 666 (2011). The first degree robbery statute requiresas
2 3 —
one alternative—hat defendant "inflict[]
t bodily injury"during or in immediate flight from
the robbery, and Division One of this court has held that this too requires . showing of proximate
a
cause. State v. Decker, 127 Wn. App. 427, 432, 111 P. d 286 (2005)stating that crimes that are
3 (
defined to require specific conduct causing a specified result require a showing of proximate
cause).
3
RCW 9A. 2.
055(
1
3 )
4
RCW 9A. 2.
050(
1
3 )
s
RCW 69. 0.
415(
1
5 )
6 RCW 9A. 6.
a)(
200(
iii)
1)(
5
7
43 511 0 II
- -
As noted above, proximate cause consists of two elements: actual cause and legal cause.
McDonald, 90 Wn. App. at 612. Actual cause refers to the physical connection between an act
and an injury. Hartley, 103 Wn. d at 778. It requires the State to prove that but for the act of the
2
defendant, the harm would not have occurred. Christman, 160 Wn. App. at 753 ( quoting 1
WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 6. , at 464 (2d ed.
4 Legal cause
2003)).
involves a determination of whether liability should attach as a matter of law."McDonald, 90
Wn.App. at 616 (quoting Hartley, 103 Wn. d at 779).
2
This definition of cause fits within the general purposes of the criminal code as outlined
by the legislature: to protect society from harm while shielding the innocent from culpability. As
we discuss below, the State has presented sufficient facts for a jury to find that Bauer's alleged
conduct, leaving multiple loaded guns easily accessible to children, is conduct that "nflict[ d] . .
i e
substantial harm" in the form of severe injuries to a child. RCW 9A. 4.Further,
a).
020(
1)(
0
courts consistently apply proximate cause analysis to criminal statutes that require the State to
prove that the defendant caused a certain result. Since we assume that these cases are available
to the public, there was "fair warning" that this conduct might "constitute an offense." RCW
c).
020(
9A. 4.
1)(
0
C. Proximate Cause: Actual Cause and Legal Cause
Actual cause requires proof that but for the defendant's acts, the injury would not have
occurred. Hartley, 103 Wn. d at 778. Generally, actual cause is a jury question, except where
2
7
The term "proximate cause" is often used imprecisely, leading Hartley, 103
to confusion.
Wn. d at 778. Some cases confuse the term " roximate cause"with either actual cause or legal
2 p
cause alone. Hartley, 103 Wn. d at 778. Here, we refer to proximate cause as the combination
2
of both cause in fact and legal cause.
State v. Smith, 111 Wn. d 1, 7,759 P. d 372 (1988).
2 2
8
43511 0 II
- -
reasonable minds could reach only one conclusion. State v. Dennison, 115 Wn. d 609, 624, 801
2
P. d 193 (1990).
2
Bauer's alleged acts could reasonably be found to be an actual cause of AKB' injuries.
-s
The gun TC brought to school was registered to Bauer. TC explained that he took the gun from
Bauer's house. The police searched the house and found multiple loaded guns in locations easily
accessible to the children. TC's guardian stated that he did not allow guns in his home. Given
these facts, reasonable minds could reach the conclusion that but for Bauer allegedly leaving
loaded guns easily accessible to TC, TC would not have brought a gun to school and AK B
-
would not have been injured.
Legal causation presents a far more difficult question. Legal cause
rests on policy considerations as to how far the consequences of defendant's acts
should extend. It involves a determination of whether liability should attach as a
matter of law given the existence of actual
[ cause]. If the factual elements ... are
proved, determination of legal liability will be dependent on " mixed
considerations of logic, common sense,justice, policy, and precedent."
Hartley, 103 Wn. d at 779 (quoting King v. Seattle, 84 Wn. d 239, 250, 525 P. d 228 (1974)).
2 2 2
Whether a third degree assault Conviction could be obtained where the defendant, as here,
allegedly acts with criminal negligence to make a firearm available to an irresponsible person is
not addressed in any case law we have found. Arguably, we could preclude liability in this
instance using "mixed considerations of logic, common sense, justice, policy, and precedent."
Hartley, 103 Wn. d at 779 (quoting King, 84 Wn. d at 250).But we are reluctant to impose our
2 2
view where the legislature and the case law have already provided guidance through legislation
and its interpretation by the courts.
9
43511 0 II
- -
The legislature has addressed Bauer's situation With enactments setting forth the elements
of third degree assault and specifically defining criminal negligence, the state of mind alleged
against Bauer. The courts have acted to define the word " ause"as used in the criminal context
c
and, in doing so, have provided guidance for how the acts of third parties affect criminal liability.
Using this guidance and without consideration of any view of what "should"happen here, we
conclude that this case may be presented to a jury.
All of this is not to say that there is proximate cause in this case; rather, we decline to
hold that no rational fact finder could find that Bauer negligently caused AK B' injuries. The
-s
jury should be allowed to make that determination after hearing both parties' fully developed
arguments.
D. Bauer's Arguments Are Not Persuasive
1. Affirmative Act
Bauer first argues that the third degree assault statute requires an affirmative act by the
defendant. Bauer performed an affirmative act by allegedly leaving dangerous objects where an
irresponsible person could easily access them. Division One of this court has found an
affirmative act under factually comparable circumstances. In Parrilla v. King County, 138 Wn.
App. 427, 431, 157 P. d 879 (2007), bus driver exited the bus with the engine running and a
3 a
9 Criminal negligence is defined in RCW 9A. 8.
d):
010(
1)(
0
A person is criminally negligent or acts with criminal negligence when he or she
fails to be aware of a substantial risk that a wrongful act may occur and his or her
failure to be aware of such substantial risk constitutes a gross deviation from the
standard of care that a reasonable person would exercise in the same situation.
10
43511 0 II
- -
visibly erratic passenger on board. The passenger then crashed the bus into several vehicles.
Parrilla, 138 Wn. App. at 431. The court held that the bus driver affirmatively acted by exiting
the bus with the engine running and the passenger still on board. Parrilla, 138 Wn. App. at 438-
39. Similarly, Bauer affirmatively acted by allegedly leaving loaded guns in areas of his home
where an unsupervised child could easily access them." Moreover, Bauer's affirmative act
argument is better characterized as a legal causation argument; he is not arguing that he did not
leave the guns where they were accessible to TC, he is arguing that this act is too attenuated from
AK B' injury for him to be liable for her assault.
-s
12
2. Chester and "
Cause"
Bauer argues that our State Supreme Court has provided a definition of cause that,
applied here, requires dismissal. This argument is based on the Chester court's definition of
10
Although Parrilla is a civil case, the proximate cause analysis is the same for both civil and
criminal cases. See McDonald, 90 Wn. App at 612, 616.
11 Bauer cites to Schwartz v. Elerding, 166 Wn. App. 608, 270 P. d 630, review denied, 174
3
Wn. d 1010, 281 P. d 686 ( 2012),as authority that his alleged passive negligence is not
2 3
sufficient to support his assault charge. In Schwartz, the plaintiff sued the parents of a 17 year-
-
old for negligence after the minor beat the plaintiff with a rifle that his parents purchased for him
and allowed him to keep in the family vehicle. 166 Wn. App. at 611 12. The court concluded
-
that the parents did not violate their duty of care. Schwartz, 166 Wn. App. at 621. The court
also refused to accept the generalizations that "any and all minors have a dangerous proclivity
when it comes to guns" and that "a minor misusing a gun is foreseeable by almost everyone."
Schwartz, 166 Wn. App. at 620. Schwartz is inapposite here. First,the minor in Schwartz was a
year old with
17- - a hunting license and gun safety training who legally possessed the gun. 166
Wn. App. at 616. By contrast, the minor in this case is a 9 year old without any safety training
- -
who did not legally possess the gun. Second, the minor in Schwartz did not fire the gun, as
Bauer claims in his brief; he used it to beat the plaintiff. Here, TC actually caused the gun to
discharge. Finally, while the Schwartz court refused to generalize that a minor misusing a gun is
always foreseeable, this does not preclude a finding of foreseeability in all cases.
12 State v. Chester, 133 Wn. d 15, 940 P. d 1374 (1997).
2 2
11
11-
43511-
0
13
cause. The first problem with this argument is that Bauer's actions here clearly come within
the Chester court's definition of cause: " be the cause of, to bring about, to induce or to
to
compel." 133 Wn. d at 22 (citing BLACK's LAW DICTIONARY 221 (6th ed. 1990);
2 WEBSTER'S
THIRD NEW INTERNATIONAL DICTIONARY 356 (1986)). stated above, Bauer's actions could
As
reasonably be found to be a "cause of the shooting. Secondly, the Supreme Court's discussion
of the word " ause"was in a much different context. The Chester court said that for the State to
c
prevail, it had to show that Chester was actively involved in causing the child to disrobe. 133
Wn. d at 23. But the word " ause"in the charging statute was grouped with a series of active
2 c
verbs showing that the legislature's intent was that the State must prove that the defendant was
actively involved in making the sexually explicit conduct occur. RCW 9.
b).
040( 8A. There
1)(
6
is no such context in the third degree assault statute at issue here showing that the word means
anything other than cause in its usual sense. Additionally, it is not clear that the Chester,court's
definition requires a different standard than proximate cause. The court determined that the
stepdaughter's decision to undress occurred independently of the defendant's acts. Chester, 133
Wn. d at 22 23. In other words, his actions were not an actual cause of her undressing. While
2 -
the court did not explicitly spell out a proximate cause analysis, it engaged in a similar inquiry.
Later case law shows that the Chester court did not change the definition of cause as it is
construed by Washington courts. Since Chester, Washington courts have reviewed statutes
13
In Chester, the defendant was charged with sexual exploitation of a minor after he left a video
camera in his stepdaughter's bedroom, without her knowledge, to catch her dressing after her
shower. 133 Wn. d at 17.
2 RCW 9. )
040( 8A. states, in part, A person is guilty of sexual
1
6 "
exploitation of a minor if the person ... [ a] invites, employs, authorizes, or causes a minor to
ids,
engage in sexually explicit conduct." The court held that the defendant's conduct was not
prohibited by the sexual exploitation statute because the statute required an affirmative act by the
defendant that initiated or resulted in the child's sexually explicit conduct. Chester, 133 Wn. d
2
at 22, 24.
12
11-
43511-
0
requiring proof that the defendant caused a certain result, and, rather than using the definition in
Chester, courts have construed cause to require a showing of proximate cause. See Berube, 150
Wn. d at 510; Christman, 160 Wn. App. at 750 54;McDonald, 90 Wn.App. at 612 16.
2 - -
3. Supervening Acts
Bauer next argues that, even if the State's definition of cause is correct, his alleged
actions were not the proximate cause of the assault because TC's actions were supervening.,
Because the presence of a supervening act is a question for the jury, this argument is not
persuasive.
An independent, intervening act by a third person that results in injury to the plaintiff
may break the chain of causation. Qualls v. Golden Arrow Farms, 47 Wn. d 599, 602, 288 P. d
2 2
1090 (1955).An act is supervening, and thus terminates the defendant's liability, only if it is not
reasonably foreseeable. Crowe v. Gaston, 134 Wn. d 509, 519, 951 P. d 1118 (1998). An
2 2 "
intervening act is not foreseeable if it is `so highly extraordinary or improbable as to be wholly
beyond the range of expectability. "' Crowe, 134 Wn. d at 519 20 ( uoting Christen v. Lee, 113
2 - q
Wn. d 479, 492, 780 P. d 1307 (1989)). foreseeability of an intervening act is a question of
2 2 The
fact for the jury. Crowe, 134 Wn. d at 520.
2
In Parrilla, the court held that there were sufficient facts to support a finding that the
damage caused by the erratic passenger was foreseeable. 138 Wn. App. at 440. The driver left a
bus, which was capable of causing severe harm, idling and unguarded within easy reach of an
obviously irresponsible person. Parrilla, 138 Wn.App. at 441.
Here, a jury must decide whether TC'
s intervening acts — stealing the gun and treating it
carelessly around otherswere foreseeable. Bauer allegedly knew that he had left loaded guns
—
where TC could access them, that TC was young and lacked firearm safety experience, and that
13
43511 0 II
- -
TC had stolen money from his vehicle. Whether he could have foreseen that TC would steal and
carry around his gun is a question on which reasonable minds could differ. A jury should be
allowed to make that determination after hearing both parties' fully developed arguments.
E. Liability for Another's Conduct
Bauer further argues that a. person can only be held criminally liable for the acts of
another under RCW 9A. 8.the complicity statute. To support this argument, Bauer cites to
020,
0
two cases: In re Forfeiture of One 1970 Chevrolet Chevelle, 166 Wn. d 834, 215 P. d 166
2 3
2009), State v. Bobenhouse, 166 Wn. d 881, 214 P. d 907 (2009).Both cases state that a
and 2 3
person may be criminally liable for the acts of another under RCW 9A. 8.but neither case
020,
0
I
tates that this is the only situation where such liability is possible. Chevrolet Chevelle, 166
Wn. d at 842 43;Bobenhouse, 166 Wn. d at 889. These cases do not prevent the application of
2 - 2
the usual proximate cause rules we described above.
Furthermore, the complicity statute does not preclude Bauer's liability in this situation.
Under the statute, a person is guilty of a crime if it is committed by the conduct of another for
whom he is legally accountable. RCW 9A. 8. A person is legally accountable for the
020(
1
0 ).
conduct of another when he causes an innocent or irresponsible person to engage in such conduct
or when he is an accomplice in the commission of the crime. RCW 9A. 8. Here,
a),
020(
2)(
0 c).
the State, has not produced evidence to support accomplice liability, which requires the
defendant's knowledge that his actions will promote a crime, but it has produced evidence that
would support a jury's determination that Bauer caused TC's conduct. While it is not clear that
the State will seek to instruct the jury under this section in this case, the facts of the case at this
stage do not preclude it from doing so.
14
43 511 0 II
- -
Bauer also argues that it would be unfair to hold him responsible for TC's acts. As we
discussed above, it should be up to the jury to determine whether Bauer is in fact responsible. As
far as Bauer is arguing that he had no notice his actions were criminal, we discuss that argument
below in his vagueness challenge. In sum, the trial court correctly denied Bauer's Knapstad
challenge.
11. VAGUENESS CHALLENGE
Bauer argues that the third degree assault statute is vague as applied to him. Because all
the elements of the statute are defined in statutes or case law,his argument fails.
We review the constitutionality of a statute de novo. In re Det. ofKeeney, 141 Wn. App.
318, 323, 169 P. d 852 ( 2007).
3 We presume that statutes are constitutional, and one who
challenges a statute as unconstitutionally vague must prove vagueness beyond a reasonable
doubt. State v. Watson, 160 Wn. d 1, 11, 154 P. d 909 (2007).For statutes not involving First
2 3
Amendment rights, we evaluate the vagueness challenge by examining the statute as applied
under the particular facts of the case. Watson, 160 Wn. d at 6 (quoting State v. Coria, 120
2
Wn. d 156, 163, 839 P. d 890 (1992).A statute is void for vagueness if either (1) does not
2 2 it
define the criminal offense with sufficient definiteness that ordinary people can understand what
conduct is proscribed or (2) does not provide ascertainable standards of guilt to protect against
it
arbitrary enforcement. Watson, 160 Wn. d at 6 (quoting State v. Williams, 144 Wn. d 197, 203,
2 2
26 P. d 890 (2001)).
3
The requirement that a statute provide sufficient definiteness "protects individuals from
being held criminally accountable for conduct which a person of ordinary intelligence could not
reasonably understand to be prohibited."City ofSpokane v. Douglass, 115 Wn. d 171, 178, 795
2
P. d 693 (1990).A statute is unconstitutional when it "orbids conduct in terms so vague that
2 f
15
11-
43511-
0
persons of common intelligence must guess at its meaning and differ as to its interpretation."
Burien Bark Supply v. King County, 106 Wn. d 868, 871, 725 P. d 994 (1986).This does not
2 2
require impossible standards of specificity or absolute agreement. Douglass, 115 Wn. d at 179.
2
A]statute is not unconstitutionally vague merely because a person cannot predict with
complete certainty the exact point at which his actions would be classified as prohibited
conduct." City of Seattle v. Eze, 111 Wn. d 22, 27, 759 P. d 366 (1988).Undefined terms do
2 2
not automatically make the statute unconstitutionally vague; citizens may look to statutes and
court rulingswhich are "presumptively available to [the public]" — clarification. Douglass,
— for
115 Wn. d at 180 (quoting Smith, 111 Wn. d at 7). statute that employs words with a well-
2 2 A
settled common law meaning generally will be sustained against a charge of vagueness. State v.
Reader's DigestAss'n, Wn. d 259, 274, 501 P. d 290 (1972).
81 2 2
The requirement that a statute provide ascertainable standards of guilt protects against
arbitrary, erratic, and discriminatory enforcement. Douglass, 115 Wn. d at 180. In determining
2
whether a statute protects against arbitrary enforcement, we decide whether the statute proscribes
conduct by inherently
resort to "` subjective terms. "' Douglass, 115 Wn. d at 181 (quoting State
2
v. Maciolek, 101 Wn. d 259, 267, 676 P. d 996 (1984)). must ask whether the terms are
2 2 We
inherently subjective in the context in which they are used. "" . Douglass, 115 Wn. d at 181
2
quoting State v. Worrell, 111 Wn. d 537, 544, 761 P. d 56 (1988)). statute is unconstitutional
2 2 A
only if it invites an inordinate amount of police discretion. Douglass, 115 Wn. d at 181.
2
The third degree assault statute is not unconstitutionally vague. It defines the offense
with sufficient definiteness and provides ascertainable standards of guilt. Bauer was charged
under RCW 9A. 6.
d), State to prove that he acted with criminal
031(
1)(
3 which requires the
16
43511 0 II
- -
negligence and caused bodily harm to another person by means of a weapon. All of the elements
are defined by statute or case law. " riminal negligence"is defined in RCW 9A. 8.
C d):
010(
1)(
0
A person is criminally negligent or acts with criminal negligence when he or she
fails to be aware of a substantial risk that a wrongful act may occur and his or her
failure to be aware of such substantial risk constitutes a gross deviation from the
standard of care that a reasonable person would exercise in the same situation.
Bodily harm" is defined in RCW 9A. 4. "physical pain or injury, illness, or an
a)
110(
4 as
0 )(
impairment of physical condition." As we discussed above, cause" means proximate cause.
"
Although this definition is not statutory, it is a well-
settled common law definition that is
presumptively available to the public through case law. See, e. .,
g Berube, 150 Wn. d at 510 (the
2
homicide by abuse statute requires proof that defendant caused the death of the victim, and
proximate cause is an element of homicide by abuse). The terms of the statute are sufficiently
defined such that a reasonably intelligent person would understand what conduct is prohibited,
and the statute does not invite an inordinate amount of discretion.
Finally, Bauer argues that, should we deny his vagueness challenge, this judicial
expansion of the third, egree assault statute is unconstitutional because it retroactively applies a
d
novel interpretation of the statute. Bauer's argument is based on Bouie v. City of Columbia, 378
U. . 347, 84 S. Ct. 1697, 12 L. Ed. 2d 894 (1964). In Bouie, the Supreme Court held that the
S
South Carolina Supreme Court's retroactive application of a novel construction of a trespass
statute violated due process. 378 U. . at 350.
S The defendants were convicted of trespassing
after they refused to leave a lunch counter when asked by the store manager. Bouie, 378 U. . at
S
348. South Carolina's criminal. trespass statute stated that "entry upon the lands of another ...
after notice from the owner or tenant prohibiting such entry, shall be a misdemeanor." Bouie,
378 U. .at 349 n. citation omitted).The Supreme Court agreed with the defendants that South
S l (
17
11-
43511-
0
Carolina did not give them a fair warning that their conduct was criminal under the statute.
Bouie, 378 U. . at 355. The Court noted that "[ here can be no doubt that a deprivation of the
S t]
right of fair warning can result not only from vague statutory language but also from an
unforeseeable and retroactive judicial expansion of narrow and precise statutory language."
Bouie, 378 U. . at 352.
S There was nothing in the statute to indicate that it also prohibited
remaining on the land of another after being asked to leave. Bouie, 378 U. .at 355. There was
S
no support in prior South Carolina decisions ' for extending the reach of the statute to include
remaining on another's property; in fact, there were decisions requiring proof of notice
prohibiting entry. Bouie, 378 U. . at 356. South Carolina's application of its new construction
S
of the trespass statute to convict the defendants violated their due process rights. Bouie, 378 U. .
S
at 362.
Bouie is not applicable to these facts. At this point in the proceedings, there has been no.
change in the law. All we have done is apply the well -settled definition of cause. As part of the
causation analysis, the jury must be allowed to consider whether TC's acts terminated Bauer's
liability. This is not a new construction of the law; it is an application of existing law regarding
causation.
III. CONCLUSION
We have concluded that this case may be tried. We are told that this decision will open
the floodgates to charges against innocent parents for the unanticipated criminal acts of their
children where the parents' only fault was in failing to totally secure an item that could
potentially be dangerous. We do not anticipate such a flood. But if a parent leaves a live hand
grenade on the kitchen counter, they could be at risk of criminal prosecution. The reason why a
hand grenade could lead to charges and a butcher knife will not is in the state of mind that must
18
43 511 0 II
- -
be proventhat the parents' actions were at least a gross deviation from a normally careful
—
person's conduct. Faced with this high burden, we do not anticipate that prosecutors will be
filing charges for failing to secure normal household items such as knives, power tools, and the
like.
We have carefully interpreted the statute that Bauer is charged under, giving the words
their ordinary meaning and applying accepted Washington case law. The State has alleged
sufficient evidence under the statute as we have construed it to take the matter to trial.
Affirmed.
I concur:
Johanson, A. .
J.
C
19
43511 0 II
- -
BRIDGEWATER, J. .
T. ( — The majority upholds the trial court's denial of
P dissenting)
Bauer's Knapstad motion to dismiss the charge against him. I do not downplay the hazard to
others by keeping loaded firearms around children or the damage done to the injured victim,
'
another child. But even in the face of tragedy, this is a case involving potential criminal liability
and imprisonment. As such, we are bound to strictly construe the law, not to stretch it to fit the
exigencies of the situation. Because the majority impermissibly extends the law of criminal
negligence and criminal liability for the acts of another, I respectfully dissent.
The undisputed facts, based upon the police reports, center upon a theft of a loaded
firearm from Bauer's residence. T. ., nine -year old child of Bauer's female friend, committed
Ca -
theft of a firearm, a class B felony during a weekend visit with his mother where he slept in a
room where loaded firearms were kept. T. . and his sisters had been told never to touch any of
C
the firearms because they were all loaded. T. . stole the gun and took it to school some days
C
later where, some 20 miles from the Bauer residence, the gun accidentally discharged, injuring
one of T. .'
s classmates.
C
The State charged Bauer with third degree assault under RCW 9A. 6. The
d).
031(
1)(
3
State conceded at oral argument that the legislature's statute regarding liability for
14
Judge C. C. Bridgewater is serving as a judge pro tempore of the Court of Appeals, Division
II,pursuant to CAR 21( ).
c
RCW 9A. 6.
300(
6).
5
20
43 511 0 II
- -
the acts of another, RCW 9A. 8. not applicable to this charge, arguing that culpability
020 was
0
for criminal negligence under the third degree assault statute is an additional method by which
criminal liability for the acts of another could be imposed. The majority accepts this argument. I
disagree.
I. STATUTORY INTERPRETATION
We review questions of statutory interpretation de novo. State v. Jacobs, 154 Wn. d 596,
2
600, 115 P. d 281 ( 2005). When
3 interpreting a statute, we seek to ascertain the legislature's
intent. Jacobs, 154 Wn. d at 600. Where a statute's meaning is plain on its face, we must give
2
the legislature's intent. Jacobs, 154 Wn. d
2 at 600. We
effect to that meaning as expressing
determine the statute's plain meaning from the ordinary meaning of its language, as well as from
the statute's general context, related provisions, and the statutory scheme as a whole. Jacobs,
154 Wn. d at 600.
2
Furthermore, we must strictly construe statutes involving a deprivation of liberty. In re
Det. of Hawkins, 169 Wn. d 796, 801, 238 P. d 1175 (2010).Strict construction requires that,
2 3 "
16 RCW 9A. 8.provides:
020 0
1) person is guilty of a crime if it is committed by the conduct of another
A
person for which he or she is legally accountable.
2) person is legally accountable for the conduct of another person when:
A
a) Acting with the kind of culpability that is sufficient for the commission of the
crime, he or she causes an innocent or irresponsible person to engage in such
conduct; or
b) or she is made accountable for the conduct of such other person by this
He
title or by the law defining the crime; or
c) or she is an accomplice of such other person in the commission of the
He
crime.
The State charged Bauer under RCW 9A. 8. unlawful possession of a firearm by a
a)
020( 2 for
0 )(
minor under the theory that he caused an innocent agent or irresponsible person, T. ., possess
C to
a firearm. The trial court dismissed this count under a Knapstad motion; because T. . pleaded
C
guilty to reckless endangerment in juvenile court, he was neither an innocent agent nor an
irresponsible person. The State did not appeal the dismissal of Bauer's unlawful possession
charge.
21
43511 0 II
- -
given a choice between a narrow, restrictive construction and a broad, more liberal
interpretation, we must choose the first option."'
Hawkins, 169 Wn. d at 801 (quoting Pac. Nw.
2
Annual Conference of United Methodist Church v. Walla Walla County, 82 Wn. d 138, 141, 508
2
P. d 1361 (1973)).
2
Finally, "[ e interpret statutes in pari materia, considering all statutes on the same
w]
subject, taking into account all that the legislature has said on the subject, and attempting to
create a unified whole."Diaz v. State, 175 Wn. d 457, 466, 285 P. d 873 (2012).Under the in
2 3
pari materia rule, when a specific statute punishes the same conduct punished under a general
"
statute, they are concurrent statutes and the State must charge only under the specific statute."
State v. Presba, 131 Wn.App. 47, 52, 126 P. d 1280 (2005)
3
Here, the State charged Bauer for a third degree assault committed by T. .
C RCW
d)
031(
9A. 6.generally imposes liability for third degree assault, but the legislature
1
3 )(
specifically imposed liability for acts of another under RCW 9A. 8. Thus, if the State was
020.
0
to have charged Bauer for the assault committed by T. ., should have charged him under
C it
RCW 9A. 8.
020.
0
But I would further hold that even RCW 9A. 8.does not impose liability for T. .'
020
0 sC
acts under the facts of this case. RCW 9A. 8.
a) provides that a person is
020(
2)(
0 generally
criminally liable when he "causes"an innocent agent or irresponsible person to commit a crime.
As our Supreme Court has observed, causes" is an active verb requiring an affirmative act.
"
State v. Chester, 133 Wn. d 15, 22, 940 P. d 1374 ( 1997).This is consistent with RCW
2 2
17 The majority distinguishes the Chester court's construction of the statutory term " auses"on
c
the basis that,in the statute at issue in that case, causes"was included among a list of other
"
active verbs. Majority at 11. But an active verb is an active verb.
22
43511 0 II
- -
020'
9A. 8.
s
0 definition of accomplice liability, which consists entirely of active verbs. Finally,
this is consistent with statutes in which the legislature has included liability for the acts of
another within the crime's definition. For example, our Supreme Court has held that
Washington's stalking statute, through its usage of a definition of harassment"that included the
"
phrase "course of conduct,"encompassed liability for "directing a third party to harass the
victim." State v. Becklin, 163 Wn. d 519, 526 29, 182 P. d 944 (2008) emphasis added).
2 - 3 (
19
Likewise, Washington's riot statute requires active participation in a riot for liability for the
acts of another to attach. State v. Montejano, 147 Wn. App. 696, 700 01, 703, 196 P. d 1083
- 3
2008).Thus, it is clear whether through RCW 9A. 8.or crimes defined as including such
020
0
liability for the acts of another, our legislature knows how to impose such liability and has
chosen. to require some form of affirmative action of causing or participating in the other
person's crime.
Despite these manifestations of legislative intent, the majority interprets the law as
imposing criminal liability on Bauer under a theory that he negligently failed to act to secure his
loaded firearms. Under the majority's interpretation, though, the following scenarios could have
potentially subjected a person to being charged with third degree assault: (1) child stealing a
a
18 RCW 9A. 8.provides:
0200
3) person is an accomplice of another person-in the commission of a crime if:
A
a)With knowledge that it will promote or facilitate the commission of the crime,
he or she:
i)Solicits, commands, encourages, or requests such other person to commit it;or
ii)
Aids or agrees to aid such other person in planning or committing it;or
19
RCW 9A. 4.
010(
1 provides:
8 )
A person is guilty of the crime of riot if,acting with three or more other persons,
he or she knowingly and unlawfully uses or threatens to use force, or in any way
participates in the use of such force, against any other person or against property.
23
43511 0 II
- -
butcher knife from a cutting block in the kitchen, taking it to school, and accidentally cutting a
classmate and (2) person allowing a party for teenagers at his house, the teenagers covertly
the
drinking liquor from the person's supply, and one of the teenagers subsequently assaulting
someone while intoxicated. But such a theory of liability—
whether in the hypotheticals or as
charged in this casedoes not fit within the extensive framework or examples provided by the
—
legislature, and neither the State nor the majority provide a single case in which Washington
courts have found a defendant criminally liable for another's acts based on the defendant's
failure to act. The majority's interpretation impermissibly extends this state's law of criminal
negligence and criminal liability for the acts of another.
I further observe that RCW 9A. 8.
b) that a person is criminally liable for
020(
2)(
0 provides
the acts of another when "[ e or she is made accountable for the conduct of such other person . .
h]
by the law defining the crime." Thus, it might be argued that the third degree assault statute
falls within RCW 9A. 8.
b)the assault statute makes Bauer liable for T. .'
020(
2)(
0 because s acts
C
under a theory of criminal negligence and proximate cause.
But such an interpretation of the third degree assault statute would be incorrect. As I
discuss above, the legislature plainly knows how to make a person liable for the acts of another
in statutes defining crimes, such as the rioting and stalking statutes. Liability for the acts of
another is not express in the third degree assault statute.
Furthermore, concluding that the third degree assault statute implicitly encompasses such
liability, as urged by the State and the majority, would violate the statutory interpretation canons
of noscitur a sociis and ejusdem generis. Under the canon of noscitur a sociis, we must interpret
statutory terms in light of other terms with which they are associated. State v. Budik, 173 Wn. d
2
727, 735 36, 272 P. d 816 (2012) under noscitur a sociis, affirmative act requirement of five
- 3 (
M
11-
43511-
0 .
statutory provisions defining crime of rendering criminal assistance created an inference that
remaining provisions also required an affirmative act). Under the canon of ejusdem generis,
where there is a "specific, specific, general" pattern, general provisions must conform to the
specific examples. See Bowie v. Wash. Dep't of Rev.,171 Wn. d 1, 12, 248 P. d 504 (2011).
2 3
Here, the legislature has given us a list of criteria for imposing criminal liability on someone for
the acts of another and the majority's criminal negligence and proximate cause theory simply
does not fit within the extensive framework or examples enumerated by the legislature in RCW
020.
9A. 8. Those acts which impose liability for the acts of others are affirmative acts causing
0
an innocent or irresponsible person to commit the crime or affirmatively acting as an accomplice
to the crime itself. See RCW 9A. 8. Applying the majority's theory of criminal
a),
020(
2)(
0 c). (
negligencewhich requires
— no affirmative actunder
— RCW 9A. 8.general
b)' )(
020(
s
2
0
provisions would contradict the specific provisions of RCW 9A. 8. (c)
a)and, thus,
020(
2 and
0 )(
violate noscitur a sociis and ejusdem generis. Accordingly, interpreting RCW 9A. 8.
b)
020(
2
0 )(
and the third degree assault statute to impose liability for the acts of another in this case would be
improper.
Thus, I would strictly construe RCW 9A. 8.to require an affirmative act causing the
020
0
crime before imposing liability for the acts of another. And, as I discuss above, the third degree
assault charge against Bauer is based not on an affirmative act but a negligent failure to act by
failing to secure his loaded firearms. Accordingly, because RCW 9A. 8. does not
020
0
20
Even if in pari materia is inapplicable here and the third degree assault statute potentially
encompasses liability for the acts of another, it also uses the action verb "
causes."RCW
d).
031(
9A. 6.Thus, the statute still required an affirmative act by Bauer before such liability
1)(
3
could attach.
25
11-
43511-
0
encompass such a theory of liability, I would hold that the trial court erred in denying Bauer's
Knapstad motion to dismiss the third degree assault charge.
Il. MENTAL STATE AND LEGAL CAUSATION
In the alternative,.
I also address the majority's view that the third degree assault statute
imposes criminal liability for the acts of another based on a theory of criminal negligence and
proximate cause. Even under the majority's view, I would hold that the State's alleged facts fail
to demonstrate the mental state statutorily required to commit this crime or the legal causation
necessary under the majority's view.
First, a person commits third degree assault when he, w] criminal negligence, causes
"[ ith
bodily harm to another person by means of a weapon or other instrument or thing likely to
produce bodily harm."RCW 9A. 6.
d) added).RCW 9A. 8.
031(
1 emphasis
3 )( (010(
d),1 which
0 )(
defines criminal negligence, provides:
A person is criminally negligent or acts with criminal negligence when he or she
fails to be aware of a substantial risk that a wrongful act may occur and his or her
failure to be aware of such substantial risk constitutes a gross deviation from the
standard of care that a reasonable person would exercise in the same situation.
Thus, under RCW 9A. 6.the State must prove that Bauer was oblivious to a
d),
031(
1)(
3
substantial risk"that a wrongful act might occur when the risk would have been blindingly
obvious to a reasonable person.
Nothing in these facts demonstrates the required mental state. T. . had not expressed
C
any fascination with firearms; any fear, such that he felt he needed a firearm; or any proclivity to
steal firearms before, without warning, stealing one of Bauer's firearms. In short, Bauer had
expressly warned T. . not to touch the firearms, and T. . exhibited no previous signs of
C C
disobeying this warning. All the State demonstrates under these facts is the general notion that a
26
43511 0 II
- -
childor anyone might commit an unexpected criminal act. But such an amorphous fear is
— —
insufficient to demonstrate a substantial risk of a wrongful act that would have been obvious to a
reasonable person.
Furthermore, the majority concludes that we need not address the issue of legal
causationthat is, a determination of whether liability should attach as a matter of law"and a
— "
necessary component of proximate cause — because the legislature and Washington courts have
provided "guidance"in this case. Hartley v. State, 103 Wn. d 768, 779, 698 P. d 77 (1985);
2 2
Majority at 9. Although Washington courts have held that the term "causes" in some criminal
statutes encompasses the concept of proximate cause, the majority admits that whether a person
may be criminally liable for the acts of another under the third degree assault statute is an issue
of first impression in this state. Majority at 9. Moreover, neither the State nor the majority cites
to a single case in which the statutory term "causes" has been employed to extend criminal
liability for the acts of another. Finally, legal causation is a question of law for the courts, not
the jury. Tae Kim v. Budget Rent A Car Sys.,Inc.,143 Wn.2d 190, 204, 15 P. d 1283 (2001).
3
Because legal causation is a question of law " ependent on `mixed considerations of logic,
d
common sense, justice, policy, and precedent "' properly resolved only by this court, we must
address it. See Hartley, 103 Wn. d at 779 (quoting King v. Seattle, 84 Wn. d 239, 250, 525 P. d
2 2 2
228 (1974)).
I begin from the position that Washington law does not criminalize keeping a loaded
firearm in one's home. Furthermore, the United States Supreme Court has held that the Second
Amendment protects, at minimum, an individual's right to keep
" and bear arms ... for self -
defense within the home."McDonald v. City of Chicago, _ U. . ,
S 130 S. Ct. 3020, 3044,
177 L. Ed. 2d 894 (2010). Thus, as a matter of policy, the majority's approach would extend
27
43511 0 II
- -
criminal liability to Bauer's otherwise lawful and constitutionally protected act of keeping loaded
firearms within his home..
Moreover, the majority's approach runs contrary to Washington precedent on liability for
the acts of another. In civil negligence cases, the concepts of duty and legal causation are
linked to policy considerations."Hartley, 103 Wn. d at 779. Thus, whether a duty exists, like
2
legal causation, is a question of law for this court. Degel v. Majestic Mobile Manor, Inc.,129
Wn. d 43, 48, 914 P. d 728 ( 1996).
2 2 Because duty and legal causation are "intertwined,"
discussion of whether a legal duty exists under the circumstances is helpful in addressing
whether legal causation also exists. See Hartley, 103 Wn. d at 779 80; Donaldson v. City of
2 -
Seattle, 65 Wn. App. 661, 66.9 n:4, 831 P. d 1098 (1992).
1 2
The general rule at common law is that a private person does not have a duty to protect
others from the criminal acts of third parties. Tae Kim, 143 Wn. d at 195. Division One of this
2
court has considered whether Washington law imposes a specific duty to secure firearms within
the home from theft and subsequent use in criminal acts. In McGrane v. Cline, 94 Wn. App.
925, 927, 973 P. d 1092, review denied, 138 Wn. d 1018 ( 1999), Clines' 16- old
2 2 the year -
daughter, without her parents' permission, invited young men over while her parents were away.
Either the Clines' daughter gave away or one of the young men stole an unsecured firearm from
the residence. McGrane, 94 Wn. App. at 927. The young man subsequently used the firearm to
kill McGrane during a robbery; her estate sued the Clines for breach of an alleged duty to the
general public to secure the firearm. McGrane, 94 Wn. App. at 927 28. In declining to impose
-
such a duty, Division One reasoned:
T] are too many issues of legitimate public debate concerning the private
here
ownership and storage of firearms for this court to impose potential liability upon
firearm owners based solely upon factors of ownership, theft, and subsequent
28
11-
43511-
0
criminal use of a firearm. We believe that the proper arena to resolve issues of
such competing societal interests is legislative rather than judicial.
McGrane, 94 Wn. App. at 929. Like Division One's approach in McGrane, I would leave it to
the legislature to resolve the numerous competing rights, realities, interests, and issues of public
debate by imposing criminal liability, if any, for T. .' and criminal use of Bauer's firearm.
s theft
C
Moreover, Division One has also addressed the question of whether "civil liability
should] be imposed upon those who plan and furnish beer for a high school graduation keg party
where criminal violence erupts." Cameron v. Murray, 151 Wn. App. 646, 649, 214 P. d 150,
3
review denied, 168 Wn. d 1018 (2009).In Cameron, a negligence suit ensued after an attendee
2
at a high school senior keg party struck the victim in the head with a heavy glass beer mug,
in the victim's death. Cameron, 151 Wn. App. at 649 50.
- On appeal,
eventually resulting
Division One rejected the generalization that "bad things happen when crowds of young people
get very drunk together" as the sole basis of liability for negligence. Cameron, 151 Wn. App. at
654. Lacking any specific evidence that the parties who planned the keg party and furnished
liquor for it were aware that the assailant had a propensity for violence, Division One refused to
impose civil liability on those parties for the assailant's criminal act. Cameron, 151 Wn. App. at
ie
Further, Division Three of this court has rejected the generalizations that "` ll minors
a
have a dangerous proclivity when it comes to guns "' and "` minor misusing a gun is foreseeable
a
by almost everyone "' as bases for finding civil negligence. Schwartz v. Elerding, 166 Wn. App.
608, 620, 270 P. d
3 630, review denied, 174 Wn. d 1010 ( 2012).
2 In fact, Division Three
undercut this generalization by observing the numerous instances in which Washington law
Im
43511 0 II
- -
permits minors to possess firearms . Schwartz, 166 Wn. App. at 620 21. Accordingly, without
-
any specific evidence of a teenager's involvement in any previous altercations, Division Three
refused as a matter of law to impose liability on the defendants under a negligence theory after
the teenager used the butt of a gun the defendants had given him to assault someone. Schwartz,
166 Wn. App. at 611, 617, 620 21.
-
Finally, I elaborate on some of the specific circumstances in which Washington law
permits minors to possess and use firearms. RCW 9.1.provides that a minor may
042(
7
4 )
possess firearms "[ n real property under the control of his or her parent, other relative, or legal
o]
guardian and who has the permission of the parent or legal guardian to possess a firearm."
Similarly, RCW 9.1.permits a minor's firearm possession "[ t his or her residence and
042(
8
4 ) a]
who, with the permission of his or her parent or legal guardian, possesses a firearm for the
purpose of exercising the rights specified in RCW 9A. 6. RCW 9A. 6.
020(
3)."
1 020(
3
1 )
generally permits the use of reasonable force in defending one's self or third parties from
personal harm or harm to property in their possession. Thus, Washington law permits that, with
the appropriate permissions, minors may not only possess but use firearms within the home for
self defense, defense of others, and defense of property. Arguably, the law contemplates that, in
21
RCW 9.1.provides the circumstances in which minors may possess firearms.
042
4
22
RCW 9A.16. 20(provides:
3)0
The use, attempt, or offer to use force upon or toward the person of another is not
unlawful in the following cases:
Whenever used by a parry about to be injured, or by another lawfully aiding him
or her, in preventing or attempting to prevent an offense against his or her person,
or a malicious trespass, or other malicious interference with real or personal
property lawfully in his or her possession, in case the force is not more than is
necessary.
30
43511 0 II
- -
order to be useful for self defense purposes, such firearms may need to be readily accessible and
operable by a minor, that is, unsecured and loaded. Thus, the majority's broad imposition of
criminal liability for failure to secure a loaded gun kept within the home would conflict with the
legislature's express authorization of minors to use firearms within the home for lawful defense
purposes.
In sum, Washington law does not prohibitand,to some extent, the Second Amendment
—
affirmatively protects —keeping firearms at home. Washington courts have declined to impose a
duty to the general public to secure firearms within the home from theft and subsequent criminal
that such heavy policy question is best addressed to the legislature. And
use, recognizing a
Washington courts have held that, as a matter of law, bare generalizations such as "all minors
have a dangerous proclivity when it comes to guns" are insufficient on their own to maintain a
civil negligence claim.
Here, where the State's allegations consist of little more than such a broad generalization,
I would hold that, as a matter of law and in accord with Washington precedent, the facts fail to
establish legal causation in the civil context. Such precedent should apply with even greater
force.in criminal cases where, as here, defendants face a possible loss of their liberty and the
social stigma associated with a criminal conviction. Moreover, consistent with Washington law
and policy, I would decline to judicially impose a duty to secure firearms within one's home.
The imposition of such a duty would require a careful balancing of safety and civil liberty issues
23
Likewise,the same is true for adults who need to engage in defense of homes where children
are present. For many Washingtonians who are otherwise responsible firearm owners, law .
enforcement may only be able to respond within minutes when seconds matter. Because this
court is unable to hear from such citizens before subjecting them to potential criminal liability
for keeping their firearms necessarily operable and accessible within the home, we are a poor
substitute for the legislature in situations such as this case. Cf.McGrane, 94 Wn. App. at 929.
31
43511 0 II
- -
involving adultssuch as the potential use of stolen firearms in crimes and the civil rights of
—
adults to own and use firearms in defense of the home as well as Washington laws
—
demonstrating approval of minors possessing and using firearms within the home for lawful
purposes, including self defense. Thus, the legislature is better suited to receive evidence far
beyond this court's purview in addressing the many competing public interests surrounding this
issue and to craft the contours of such a duty, if any. Accordingly, I would hold that the trial
court erred in denying Bauer's Knapstad motion, and I would remand for dismissal of the charge
against him.
Bridgewater, JPT
32