If a minor commits a school shooting in New Mexico with a gun belonging to his or her parents, any parent who loses a child may ask whether the gunman’s parents can be held liable.
Legally, a parent whose child is injured or killed by a criminal act may seek justice through a personal injury or wrongful death lawsuit. They may demand compensation for their grief, loss of the companionship of their child, and/or for any medical bills and other costs of the child’s injuries, funeral and burial.
But who would be the defendant? The underage gunman? He or she would likely have few if any assets, if indeed he or she survived. The school system that did not provide for their child’s safety? School systems in New Mexico and across the country are doing quite a lot to ensure safe schools, even as some suggest campus security measures are futile.
Increasingly, society is looking to the parents of underage gunmen who use unsecured firearms made available to them in their own homes. This kind of third-party lawsuit would declare that a shooter’s parents should be held responsible for easily accessible guns their children use in crimes.
Art Acevedo, chief of police in Houston, Texas, told CBS News’ Face the Nation program after the shooting at Santa Fe (TX) High School in May, “I believe that anyone that owns a firearm, that doesn’t secure it properly, ends up in the wrong hands, and used to kill innocent people, that that should carry some significant consequences. We need to think about that on the national level across this country.”
New Mexico Law About Children’s Access To Guns
Since the 1999 shooting at Columbine High School in Colorado, at least 141 children, educators and other people have been killed, and another 287 have been injured in shootings at 217 schools in the United States, The Washington Post says in a report.
“Seven in 10 of (school shooters) were under the age of 18, which means that — often because of an adult’s negligence — dozens of children had access to deadly weapons,” The Post says.
As of this writing, New Mexico has not enacted any type of law pertaining to child access to guns, as 27 states and Washington, D.C., have. However, legislators in Albuquerque unveiled four gun legislation proposals in August, one of which would impose new regulations aimed at keeping guns from children, the Albuquerque Journal reported.
Rep. Linda Trujillo, D-Santa Fe, is working with two New Mexico teenagers to prepare legislation that would make gun owners liable if they fail to secure their weapons and allow children access.
Senate Majority Leader Peter Wirth, a Santa Fe Democrat who has supported expanded background checks, said at August’s all-day legislative hearing that lawmakers are hearing more often now from young people after many school shootings across the country, including in New Mexico.
While gun legislation has failed in the past, New Mexico will have a new governor and some new House members when the legislature meets for a full 60-day session in January, the Journal said.
What Do Child Access Prevention Gun Laws Do?
The Giffords Law Center to Prevent Gun Violence describes state child access prevention (CAP) gun laws as taking a variety of forms:
- Strongest laws: provide criminal liability when a minor is likely to gain access to a negligently stored firearm, regardless of whether the minor actually gains access.
- Weakest laws: prohibit certain persons, such as parents or guardians, from directly providing a firearm to a minor
Most fall somewhere between these extremes, including those that provide:
- Criminal liability for negligently stored firearms, but only where the child uses the firearm and causes death or serious injury.
- Penalties only in the event of reckless, knowing or intentional conduct by the adult.
State CAP laws also differ on the definition of “minor,” says the Giffords Center, which is named for former Arizona Congresswoman and gunshot survivor Gabrielle Giffords.
In May, the USA Today newspaper network and the Associated Press reviewed news reports and police records of cases in which children under 12 either killed themselves or were shot and killed by another child and found that about half of those deaths led to a criminal charge.
“Nearly identical accidents can have markedly different outcomes. A shooting that leads to a prison sentence in one state can end with no prosecution at all in another,” USA Today said.
“Prosecutors throughout the country say deciding whether to bring charges is seldom easy. Parents are suffering, and heaping a criminal prosecution on top of that grief may not do much to teach others to handle their guns more carefully. In some cases, the decision to seek charges can cost the surviving kids their parent.”
Justice for Children After a School Shooting
In New Mexico, convicted criminals may be directed to pay restitution to their victims, though often a perpetrator lacks financial resources. In addition, New Mexico’s Crime Victim Reparation Commission helps crime victims by providing up to $20,000 to cover expenses such as medical care and funeral costs, or $50,000 in permanent disability cases.
New Mexico allows a crime victim to seek compensation through a civil lawsuit against an offender or a third party whose conduct caused or allowed the crime to occur. In a school shooting, a claim against a minor-age child’s parent(s) would claim liability under a theory of negligence.
A lawsuit against the gun-owning parent(s) of a minor-age school shooter would assert that the parent(s) owed the victim a duty of care, but breached that duty by failing to secure the firearms properly in their household and that breach resulted in injury to or death of the plaintiff’s child.
Like all lawsuits, the evidence would have to convince a judge the complaint should proceed and then a jury that the defendant was liable and should compensate the plaintiff. Alternatively, the defendant’s insurance company could offer a settlement the plaintiff found acceptable.
Such lawsuits against parents in school shootings exist and, in a few cases, prosecutors are charging negligent parents outside of specific gun negligence laws.
If you should find yourself in the terrible situation of your child being injured in a school shooting, you have a right to consider your options under civil law. Our attorneys at Parnall Law are available to answer your questions and discuss your legal options in a free, no-obligation legal consultation.
