James and Jennifer Crumbley, the parents of the teenager charged with fatally shooting four students and injuring seven others at Oxford High School in Michigan last month, appeared in court yesterday for a probable cause conference. The Crumbleys, who bought their 15-year-old son, Ethan, the handgun he allegedly used in the deadly attack, each face four involuntary manslaughter charges—a highly unusual attempt to hold parents criminally responsible for a school shooting. Although prosecutors cite substantial evidence indicating that the defendants were negligent, it is not at all clear that their conduct satisfies the elements of involuntary manslaughter. The charges, which are punishable by up to 15 years in prison, look like an attempt to prosecute the couple for actions that are not crimes under Michigan law.
Four days before the November 30 shooting, according to Oakland County Prosecuting Attorney Karen McDonald, James Crumbley took his son to Acme Shooting Goods in Oxford, where he bought the teenager a 9-mm SIG Sauer SP 2022 pistol as an early Christmas gift. In a social media post accompanied by "an emoji with hearts," Ethan said, "Just got my new beauty today. SIG Sauer 9 mm. Any questions I will answer."
The day before the shooting, a teacher saw Ethan using his phone to search online for ammunition during class. At a meeting that day, Ethan told school officials that his family enjoyed shooting sports, which explained the browsing that had alarmed the teacher. The school tried unsuccessfully to contact Jennifer Crumbley, who later sent her son a text that said, "LOL I'm not mad at you. You have to learn not to get caught."
The day of the shooting, McDonald says, a teacher saw "a note on Ethan's desk" that included "a drawing of a semiautomatic handgun, pointing at the words: 'The thoughts won't stop. Help me.'" There was also "a drawing of a bullet, with the following words above that bullet: 'Blood everywhere.'" In between was "a drawing of a person who appears to have been shot twice and [is] bleeding," and "below that figure is a drawing of a laughing emoji." Ethan also had written "my life is useless" and "the world is dead."
That discovery prompted a second meeting, this time including Ethan's parents. Ethan claimed he was developing a video game and the picture was part of that process. According to school officials, his parents resisted their demand that he receive counseling within 48 hours and refused to take him home for the rest of the day. "Both James and Jennifer Crumbley failed to ask their son if he had his gun with him or where his gun was located and failed to inspect his backpack for the presence of the gun, which he had with him," McDonald says.
The school sent Ethan back to class, and the shooting happened shortly afterward. School officials said that Ethan had no prior record of disciplinary problems, that his "behavior, responses and demeanor" did not suggest he posed a threat, and that they did not know he had unsupervised access to a handgun. According to McDonald, the gun was "stored unlocked in a drawer in James and Jennifer's bedroom." Shannon Smith, one of the Crumbleys' defense attorneys, contested that point when they pleaded not guilty on December 4, saying the gun was locked. "When the prosecution is stating that this child had free access to a gun," Smith told District Court Judge Julie Nicholson, "that is just absolutely not true."
After "news of the active shooter at Oxford High School had been made public," McDonald says, Jennifer Crumbley texted her son again, saying, "Ethan, don't do it." Fifteen minutes later, "James Crumbley called 911, reporting that a gun was missing from his house, and he believed his son may be the shooter."
Unsurprisingly, the school faced intense criticism for letting Ethan Crumbley go back to class. Last week attorney Geoffrey Fieger, who plans to sue the school district for $100 million in federal court, said administrators "allowed the deranged, homicidal student to return to class with a gun in his backpack, with over 30 rounds of ammo in his backpack, when they knew he was a homicidal threat." But prosecutors argue that Ethan Crumbley's parents, who remain in jail after a judge set their bonds at $500,000 each, were even better positioned to prevent the shooting and that their failure to do so justifies charging them with involuntary manslaughter.
Under Michigan law, a defendant is guilty of involuntary manslaughter when he unintentionally causes someone's death through "gross negligence." According to Michigan's model jury instructions, "Gross negligence means more than carelessness. It means willfully disregarding the results to others that might follow from an act or failure to act."
The prosecution must prove beyond a reasonable doubt that "the defendant knew of the danger to another," meaning he "knew there was a situation that required [him] to take ordinary care to avoid injuring another"; that "the defendant could have avoided injuring another by using ordinary care"; and that "the defendant failed to use ordinary care to prevent injuring another when, to a reasonable person, it must have been apparent that the result was likely to be serious injury."
James and Jennifer Crumbley surely will contest the allegation that they "knew of the danger to another," an essential element of the crime. "What happened at Oxford High School may have been foreseeable in some abstract sense," Andrew McCarthy notes at National Review, "but it was certainly not foreseen in concrete reality." Prosecutors will argue that Jennifer Crumbley's text to her son and James Crumbley's 911 call after the shooting started suggest they knew their son was dangerous. But their suspicion once the attack began—in light of what had happened at the school meeting earlier that day and, in the father's case, his discovery that the gun was missing—is not the same as recognizing the threat in advance and "willfully disregarding" it.
Smith and Mariell Lehman, another attorney representing James and Jennifer Crumbley, say the story presented by McDonald is highly misleading. "The prosecution has very much cherry-picked and slanted specific facts to further their narrative," they said in a statement to NPR. "We intend to fight this case in the courtroom and not in the court of public opinion. We know that in the end the entire story and truth will prevail."
As to whether the Crumbleys exercised "ordinary care," most people probably would agree that they did not. McDonald says she wants to "send the message that gun owners have a responsibility" and that "when they fail to uphold that responsibility, there are serious and criminal consequences."
But while 16 states have laws authorizing prosecution of adults who intentionally or carelessly give minors unsupervised access to guns, Michigan is not one of them. The state legislature has repeatedly declined to enact such a "child access prevention" (CAP) law. Nor does the state require "secure storage" of firearms (meaning that they are kept locked, unloaded, and separate from ammunition), as six states, the District of Columbia, and several cities do.
McCarthy, a former federal prosecutor, concedes that James and Jennifer Crumbley showed "appalling judgment" and "appear to have been utterly irresponsible." But he argues that prosecutors are using the involuntary manslaughter charges in place of charges that Michigan has not authorized.
Since Michigan legislators "refused to criminalize the conduct in which the Crumbley parents engaged," McCarthy says, prosecutors are "attempting in the heat of the moment to criminalize the conduct themselves." While the couple "may be looking at significant civil liability, and deservedly so," he writes, that does not mean they are guilty of a crime, "much less make them responsible for homicide—a much more serious crime, even in the form of involuntary manslaughter, than the CAP crime that Michigan has refused to codify."
George Washington University law professor Jonathan Turley likewise is skeptical that the prosecution can prove its case. "I have not seen the evidence that would make a compelling case to say that the parents were complicit criminally as opposed to being negligent," he said on Twitter. "The question is whether there is actual knowledge or complicity by the parents as opposed to negligence. Otherwise, charges in this case could present strong grounds for challenge."