State v. Bauer
State v. Bauer
Opinion of the Court
¶1 — 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
FACTS
f2 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.
¶3 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.
¶4 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 weekend — that TC had taken money from the glove compartment of Bauer’s vehicle.
¶6 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.3d 264 (2012). Bauer also challenged the third degree assault statute as 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
¶7 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 be held criminally liable for another’s acts only under the complicity statute. We hold that the trial court properly denied Bauer’s Knapstad motion because “cause” in 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.
¶8 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.2d at 356. A trial court may
¶9 Bauer argues that he cannot be convicted of assault because his alleged actions — keeping loaded firearms where children could easily take them — were not sufficiently a “cause” of the shooting. To explain why we disagree, we must explain how causation is treated in criminal cases.
¶10 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.2d 768, 778, 698 P.2d 77 (1985) (referring to actual cause as “cause in fact”).
¶11 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.2d 470 (1998). As in moral assessments of blame, legal cause analysis involves consideration of
¶12 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
¶13 The State charged Bauer with third degree assault. 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-.36.031(l)(d). We must interpret the meaning of “cause” in this statute.
¶14 The legislature has provided guidance for construing its criminal statutes. RCW 9A.04.020. The general pur
¶15 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.36.031(l)(d). “Cause” is not statutorily 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.2d 256, 263, 226 P.3d 131 (2010). Additionally, courts may look to the common law to define terms not given a statutory definition. State v. Byrd, 125 Wn.2d 707, 712, 887 P.2d 396 (1995); RCW 9A.04.060 (“The provisions of the common law relating to the commission of 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.”).
¶16 In the following paragraphs, we apply these rules of statutory interpretation to RCW 9A.36.031(l)(d) and the word “cause.” We determine that “cause” means “proximate cause,” 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
B. “Cause” Means “Proximate Cause”
¶17 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 “cause [d] the death”
¶19 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 “inflict [ed] ... substantial harm” in the form of severe injuries to a child. RCW 9A.04.020(l)(a). Further, 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,
C. Proximate Cause: Actual Cause and Legal Cause
¶20 Actual cause requires proof that but for the defendant’s acts, the injury would not have occurred. Hartley, 103 Wn.2d at 778. Generally, actual cause is a jury question, except where reasonable minds could reach only one conclusion. State v. Dennison, 115 Wn.2d 609,624, 801 P.2d 193 (1990).
¶22 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.2d at 779 (quoting King v. City of Seattle, 84 Wn.2d 239, 250, 525 P.2d 228 (1974)). 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.2d at 779 (quoting King, 84 Wn.2d at 250). But we are reluctant to impose our view where the legislature and the case law have already provided guidance through legislation and its interpretation by the courts.
¶23 The legislature has addressed Bauer’s situation with enactments setting forth the elements of third degree assault and specifically defining criminal negligence, the
¶24 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’s injuries. The 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
¶25 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.3d 879 (2007), a bus driver exited the bus with the engine running and a visibly erratic passenger on board.
2. Chester
¶26 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 “cause.”
¶27 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 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.2d at 510; Christman, 160 Wn. App. at 750-54; McDonald, 90 Wn. App. at 612-16.
3. Supervening Acts
¶28 Bauer next argues that even if the State’s definition of “cause” is correct, his alleged actions were not
¶29 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, Inc., 47 Wn.2d 599, 602, 288 P.2d 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.2d 509, 519, 951 P.2d 1118 (1998). “An 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.2d at 519-20 (internal quotation marks omitted) (quoting Christen v. Lee, 113 Wn.2d 479, 492, 780 P.2d 1307 (1989)). The foreseeability of an intervening act is a question of fact for the jury. Crowe, 134 Wn.2d at 520.
¶30 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.
¶31 Here, a jury must decide whether TC’s intervening acts — stealing the gun and treating it carelessly around others — were 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 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
¶32 Bauer further argues that a person can be held criminally liable for the acts of another only under RCW 9A.08.020, the complicity statute. To support this argument,
¶33 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-.08.020(1). A person is legally accountable for the 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.08.020(2)(a), (c). Here, 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.
¶34 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.
II. Vagueness Challenge
¶35 Bauer argues that the third degree assault statute is vague as applied to him. Because all the elements of the
¶36 We review the constitutionality of a statute de novo. In re Det. of Keeney, 141 Wn. App. 318,323,169 P.3d 852 (2007). 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.2d 1, 11, 154 P.3d 909 (2007). For statutes not involving First Amendment rights, we evaluate the vagueness challenge by examining the statute as applied under the particular facts of the case. Watson, 160 Wn.2d at 6 (quoting State v. Coria, 120 Wn.2d 156, 163, 839 P.2d 890 (1992)). A statute is void for vagueness if either (1) it does not define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is proscribed or (2) it does not provide ascertainable standards of guilt to protect against arbitrary enforcement. Watson, 160 Wn.2d at 6 (quoting State v. Williams, 144 Wn.2d 197, 203, 26 P.3d 890 (2001)).
¶37 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 of Spokane v. Douglass, 115 Wn.2d 171, 178, 795 P.2d 693 (1990). A statute is unconstitutional when it “forbids conduct in terms so vague that persons of common intelligence must guess at its meaning and differ as to its interpretation.” Burien Bark Supply v. King County, 106 Wn.2d 868, 871, 725 P.2d 994 (1986). This does not require impossible standards of specificity or absolute agreement. Douglass, 115 Wn.2d at 179. “[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.2d 22, 27, 759 P.2d 366 (1988). Undefined terms do not automatically make the statute unconstitutionally vague; citizens may look to statutes and
¶38 The requirement that a statute provide ascertainable standards of guilt protects against arbitrary, erratic, and discriminatory enforcement. Douglass, 115 Wn.2d at 180. In determining whether a statute protects against arbitrary enforcement, we decide whether the statute proscribes conduct by resort to “ ‘inherently subjective terms.’ ” Douglass, 115 Wn.2d at 181 (quoting State v. Maciolek, 101 Wn.2d 259, 267, 676 P.2d 996 (1984)). We must ask whether the terms are “ ‘inherently subjective in the context in which they are used.’ ” Douglass, 115 Wn.2d at 181 (quoting State v. Worrell, 111 Wn.2d 537, 544, 761 P.2d 56 (1988)). A statute is unconstitutional only if it invites an inordinate amount of police discretion. Douglass, 115 Wn.2d at 181.
¶39 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.36.031(l)(d), which requires the State to prove that he acted with criminal negligence and caused bodily harm to another person by means of a weapon. All of the elements are defined by statute or case law. “Criminal negligence” is defined in RCW 9A.08.010(l)(d):
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.
¶40 Finally, Bauer argues that should we deny his vagueness challenge, this judicial expansion of the third degree assault statute is unconstitutional because it retroactively applies a novel interpretation of the statute. Bauer’s argument is based on Bouie v. City of Columbia, 378 U.S. 347, 84 S. Ct. 1697, 12 L. Ed. 2d 894 (1964). In Bouie, the Supreme Court held that the South Carolina Supreme Court’s retroactive application of a novel construction of a trespass statute violated due process. 378 U.S. at 350. The defendants were convicted of trespassing after they refused to leave a lunch counter when asked by the store manager. Bouie, 378 U.S. at 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.S. at 349 n.l (quoting former S.C. Code Ann. § 16-386 (1954)). The Supreme Court agreed with the defendants that South Carolina did not give them a fair warning that their conduct was criminal under the statute. Bouie, 378 U.S. at 355. The Court noted that “[t]here can be no doubt that a deprivation of the 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.S. at 352.
¶41 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
¶42 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 be proved — that 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.
¶43 We have carefully interpreted the statute that Bauer is charged under, giving the words their ordinary meaning and applying accepted Washington case law. The
¶44 Affirmed.
State v. Knapstad, 107 Wn.2d 346, 729 P.2d 48 (1986).
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.2d 783, 787, 864 P.2d 912 (1993). 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.2d 95 (1981).
RCW 9A.32.055(1).
RCW 9A.32.050(l)(a).
RCW 69.50.415(1).
RCW 9A.56.200(l)(a)(iii).
The term “proximate cause” is often used imprecisely, leading to confusion. Hartley, 103 Wn.2d at 778. Some cases confuse the term “proximate cause” with either actual cause or legal cause alone. Hartley, 103 Wn.2d at 778. Here, we refer to “proximate cause” as the combination of both cause in fact and legal cause.
State v. Smith, 111 Wn.2d 1, 7, 759 P.2d 372 (1988).
“Criminal negligence” is defined in RCW 9A.08.010(l)(d):
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.
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.
Bauer cites to Schwartz v. Elerding, 166 Wn. App. 608, 270 P.3d 630, review denied, 174 Wn.2d 1010, 281 P.3d 686 (2012), as authority that his alleged passive negligence is not 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 17-year-old with 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.
State v. Chester, 133 Wn.2d 15, 940 P.2d 1374 (1997).
In Chester, the defendant was charged with sexual exploitation of a minor after he placed a video camera in his stepdaughter’s bedroom, without her knowledge, to catch her dressing after her shower. 133 Wn.2d at 17. RCW 9.68A.040(l)(b) states, in part, “A person is guilty of sexual exploitation of a minor if the person . . . [a] ids, invites, employs, authorizes, or causes a minor to 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.2d at 22, 24.
Dissenting Opinion
¶45
¶46 The undisputed facts, based upon the police reports, center upon a theft of a loaded firearm from Bauer’s residence. T.C., a nine-year-old child of Bauer’s female friend, committed theft of a firearm, a class B felony,
¶47 The State charged Bauer with third degree assault under RCW 9A.36.031(l)(d). The State conceded at oral argument that the legislature’s statute regarding liability
I. Statutory Interpretation
¶48 We review questions of statutory interpretation de novo. State v. Jacobs, 154 Wn.2d 596, 600, 115 P.3d 281 (2005). When interpreting a statute, we seek to ascertain the legislature’s intent. Jacobs, 154 Wn.2d at 600. Where a statute’s meaning is plain on its face, we must give effect to that meaning as expressing the legislature’s intent. Jacobs, 154 Wn.2d at 600. We 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.2d at 600.
¶49 Furthermore, we must strictly construe statutes involving a deprivation of liberty. In re Det. of Hawkins, 169 Wn.2d 796, 801, 238 P.3d 1175 (2010). “Strict construction requires that, ‘given a choice between a narrow, restrictive
¶50 Finally, “[w]e interpret statutes in pari materia, considering all statutes on the same 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.2d 457, 466, 285 P.3d 873 (2012). Under the in 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.3d 1280 (2005).
¶51 Here, the State charged Bauer for a third degree assault committed by T.C. RCW 9A.36.031(l)(d) generally imposes liability for third degree assault, but the legislature specifically imposed liability for acts of another under RCW 9A.08.020. Thus, if the State were to have charged Bauer for the assault committed by T.C., it should have charged him under RCW 9A.08.020.
¶52 But I would further hold that even RCW 9A.08.020 does not impose liability for T.C.’s acts under the facts of this case. RCW 9A.08.020(2)(a) generally provides that a person is 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.2d 15, 22, 940 P.2d 1374 (1997).
¶53 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) a child stealing a butcher knife from a cutting block in the kitchen, taking it to school, and accidentally
¶54 I further observe that RCW 9A.08.020(2)(b) provides that a person is criminally liable for the acts of another when “[h]e or she is made accountable for the conduct of such other person ... by the law defining the crime.” Thus, it might be argued that the third degree assault statute falls within RCW 9A.08.020(2)(b) because the assault statute makes Bauer liable for T.C.’s acts under a theory of criminal negligence and proximate cause.
¶55 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.
¶56 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.2d 727, 735-36, 272 P.3d 816 (2012) (under noscitur a sociis, affirmative act requirement of five statutory provisions defining crime of rendering criminal assistance created an inference that
¶57 Thus, I would strictly construe RCW 9A.08.020 to require an affirmative act causing the 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.08.020
¶58 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.
¶59 First, a person commits third degree assault when he, “[w]ith criminal negligence, causes bodily harm to another person by means of a weapon or other instrument or thing likely to produce bodily harm.” RCW 9A.36.031(l)(d) (emphasis added). RCW 9A.08.010(l)(d), which 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.36.031(l)(d), the State must prove that Bauer was oblivious to a “substantial risk” that a wrongful act might occur when the risk would have been blindingly obvious to a reasonable person.
¶60 Nothing in these facts demonstrates the required mental state. T.C. had not expressed 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.C. not to touch the firearms, and T.C. exhibited no previous signs of disobeying this warning. All the State demonstrates under these facts is the general notion that a child — or anyone — might commit an unexpected criminal act. But such an amorphous fear is insuf
¶61 Furthermore, the majority concludes that we need not address the issue of legal causation — that 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.2d 768, 779, 698 P.2d 77 (1985); majority at 72. 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 72. 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.3d 1283 (2001). Because legal causation is a question of law “dependent on ‘mixed considerations of logic, common sense, justice, policy, and precedent’ ” properly resolved only by this court, we must address it. Hartley, 103 Wn.2d at 779 (quoting King v. City of Seattle, 84 Wn.2d 239, 250, 525 P.2d 228 (1974)).
¶62 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, 561 U.S. 742, 130 S. Ct. 3020, 3044, 177 L. Ed. 2d 894 (2010). Thus, as a matter of policy, the majority’s approach would extend criminal liability to Bauer’s otherwise lawful and constitutionally protected act of keeping loaded firearms within his home.
¶63 Moreover, the majority’s approach runs contrary to Washington precedent on liability for the acts of another. In
¶64 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.2d at 195. Division One of this 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.2d 1092, review denied, 138 Wn.2d 1018 (1999), the Clines’ 16-year-old 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]here are too many issues of legitimate public debate concerning the private ownership and storage of firearms for this court to impose potential liability upon firearm owners based solely upon factors of ownership, theft, and subsequent criminal use of a firearm. We believe that the proper arena to resolve issues of such competing societal interests is legislative rather than judicial.
¶65 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.3d 150 (2009), review denied, 168 Wn.2d 1018 (2010). In Cameron, a negligence suit ensued after an attendee at a high school senior keg party struck the victim in the head with a heavy glass beer mug, eventually resulting in the victim’s death. Cameron, 151 Wn. App. at 649-50. On appeal, 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 656.
¶66 Further, Division Three of this court has rejected the generalizations that “ ‘all minors have a dangerous proclivity when it comes to guns’ ” and “ ‘a minor misusing a gun is foreseeable by almost everyone’ ” as bases for finding civil negligence. Schwartz v. Elerding, 166 Wn. App. 608, 620, 270 P.3d 630, review denied, 174 Wn.2d 1010 (2012). In fact, Division Three undercut this generalization by observing the numerous instances in which Washington law permits minors to possess firearms.
¶67 Finally, I elaborate on some of the specific circumstances in which Washington law permits minors to possess and use firearms. RCW 9.41.042(7) provides that a minor may possess firearms “[o]n real property under the control of his or her parent, other relative, or legal guardian and who has the permission of the parent or legal guardian to possess a firearm.” Similarly, RCW 9.41.042(8) permits a minor’s firearm possession “[a]t his or her residence and 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. 16.020(3).” RCW 9A.16-.020(3)
¶68 In sum, Washington law does not prohibit — and, 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 use, recognizing that such a heavy policy question is best addressed to the legislature. And 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.
¶69 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 involving adults — such 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
Review granted at 177 Wn.2d 1019 (2013).
Judge C.C. Bridgewater is serving as a judge pro tempore of the Court of Appeals pursuant to CAR 21(c).
RCW 9A.56.300(6).
RCW 9A.08.020 provides:
(1) A person is guilty of a crime if it is committed by the conduct of another person for which he or she is legally accountable.
(2) A person is legally accountable for the conduct of another person when:
(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) He or she is made accountable for the conduct of such other person by this title or by the law defining the crime; or
(c) He or she is an accomplice of such other person in the commission of the crime.
The State charged Bauer under RCW 9A.08.020(2)(a) for unlawful possession of a firearm by a minor under the theory that he caused an innocent agent or irresponsible person, T.C., to possess a firearm. The trial court dismissed this count under a Knapstad motion; because T.C. pleaded 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.
The majority distinguishes the Chester court’s construction of the statutory term “causes” on the basis that in the statute at issue in that case, “cause” was included among a list of other active verbs. Majority at 75. But an active verb is an active verb.
RCW 9A.08.020 provides:
(3) A person is an accomplice of another person in the commission of a crime if:
(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....
RCW 9A.84.010(1) provides:
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.
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.” ROW 9A.36.031(l)(d). Thus, the statute still required an affirmative act by Bauer before such liability could attach.
RCW 9.41.042 provides the circumstances in which minors may possess firearms.
RCW 9A.16.020(3) provides:
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 party 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.
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
Reference
- Full Case Name
- The State of Washington v. Douglas L. Bauer
- Cited By
- 2 cases
- Status
- Published