Prof. Robert Leider (GMU): Are Parents Responsible for School Shootings Committed by their Children?

I'm delighted to be able to pass along this item by Prof. Leider, who is an expert on criminal law:

On Wednesday, an all-too-familiar tragic scene played out, when a student at a Georgia high school opened fire on his teachers and classmates. The student killed four and injured nine others with a semiautomatic rifle. He stands charged with murder. But police also promptly arrested his father and charged him with four counts of involuntary manslaughter and eight counts of cruelty to children. Police have alleged that the father "knowingly allowed him to possess" the rifle. Although police have not released the full details of the case against the father, this case has the potential to drastically expand criminal liability against parents for the criminal acts of their children.

The law traditionally has not imposed a general duty upon parents to protect third parties against the criminal acts of their children. And for good reasons. Parents are not in a position to control their children's behavior at all times. Although parents may choose to have children, they do not choose the children that they get. Unlike the employer-employee relationship, parents cannot terminate a child who exhibits problematic behavior.

But there are some exceptions where parents may violate duties of their own. A parent can become liable when he fails to exercise control over the child and the child's wrongful act is reasonably foreseeable. Even here, however, courts (usually in the tort context—criminal cases are rare) have imposed a strict standard for what qualifies as reasonably foreseeable. To quote the Alaska Supreme Court:

A plaintiff must show more than a parent's general notice of a child's dangerous propensity. A plaintiff must also show that the parent had reason to know with some specificity of a present opportunity and need to restrain the child to prevent some imminently foreseeable harm.

Dinsmore-Poff v. Alvord, 972, P.2d 978, 986 (Alaska 1999).

Other courts have formulated similarly stringent tests. See, e.g., Wells v. Hickman, 657 N.E.2d 172, 178 (Ind. 1995) ("Imposition of a duty is limited to those circumstances where a reasonably foreseeable victim is injured by a reasonably foreseeable harm.… Specifically, the parent must know or should have known that the child had a habit of engaging in the particular act or course of conduct which led to the plaintiff's injury.") (citing Parsons v. Smithey, 504 P.2d 1272, 1276 (Ariz. 1973) ("On the subject of parental liability for failure to control children, it appears that the parents must have knowledge of the child's habitual conduct manifested by evidence of prior acts which are the same or similar to the act complained of.")).

In the Georgia case, liability would depend on what precisely the parents knew. It has been reported that the FBI previously interviewed the school shooter because of online threats. Certainly, if the parents were aware that the teenager represented a credible danger to the school, they would have had the obligation to control him, including (most obviously) by not supplying the child with a rifle. But reports indicate that the child denied making the threats and the FBI could not find probable cause (a very low evidentiary standard) that he did so. It is doubtful that one unsubstantiated allegation months earlier that a child made threats would place parents on notice that a child may be violent now.

With respect to the publicly known facts, the lack of specificity separates this case from the Michigan cases of Jennifer and James Crumbley, to which it has been compared. In the Michigan case, the Crumbleys were convicted of involuntary manslaughter for supplying a handgun to their child while ignoring his mental health problems. The child later used the handgun in a school shooting to murder four students and wound six others.

But the Crumbleys were on extensive notice that their son was troubled and potentially an immediate danger. Indeed, the Crumbleys met with school officials on the morning of the shooting in response to artwork by their son depicting violence and pleading for help. Yet, they did nothing to alert school officials about his possible access to a weapon, nor did they check to make sure their firearm was still in their possession. They simply left him at school. (Their case remains on appeal. Given how high the standard is for parental liability, they have a reasonable chance to succeed.)

Of course, police have not released all their evidence, and they are still investigating. When more evidence comes to light, prosecutors may have substantial other evidence that the Georgia parents were on specific notice of the danger.

As of now, however, the director of the Georgia Bureau of Investigation has framed the case as one of a parent "knowingly allowing his son to possess a weapon." But another major difference between the Georgia case and the Michigan case is that the Georgia case involved a rifle while the Michigan case involved a handgun. The differences in weapons matter legally. Because handguns are more susceptible of criminal misuse, federal and state laws more tightly regulate the possession of a handgun by a minor. In general, it is unlawful for a minor to possess a handgun. There are exceptions (e.g., target shooting and hunting), but many states additionally require that, even then, adults directly supervise minors. In contrast, federal law does not prohibit minors from possessing rifles and shotguns, nor do many states (including Georgia). Unlike with handguns, it is more common to permit minors unsupervised access to rifles and shotguns for hunting and target shooting.

Granted, this case involved an AR-15 type rifle. A few jurisdictions (e.g., Virginia) separate some semiautomatic rifles (designated as "assault weapons" or "assault firearms") and restrict juvenile possession in the same manner as handguns. But most states treat rifles and shotguns as a class, and do not separate rifles by type. Georgia is among them.

It is also unclear exactly how the Georgia child gained access to the firearm. A parent can also be liable for the acts of his child if he negligently entrusts a dangerous instrumentality to his child. The particular facts will likely be highly significant. Did the parent in this case consent to his son having possession of the rifle? Or did the child take the rifle without permission?

At the end of the day, however, it is not clear whether these legal technicalities will matter. We may be witnessing a development in the law of parental responsibility. Although school shootings and mass shootings are rare (they make up a small fraction of all homicides), they terrify the population far more than ordinary street violence. Americans may have had enough, and they may want the law to develop in a direction to impose a more substantial duty on parents to keep firearms away from minors. Guns are not the only dangerous instrumentality to which minors have access; cars cause thousands of deaths each year, too. If the law evolves, it remains to be seen whether it will be a "gun exception" to normal rules of parental responsibility or whether the law will impose stronger duties on parents in other domains as well.