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Michigan School Shooter Case Shows Risks of Novel Prosecutions

Dec. 16, 2021, 11:00 AM

We’re back with another edition of Opening Argument, a column where I dig into complicated legal fights, unpack issues dividing appeals courts, and discuss disputes ripe for Supreme Court review. Today we’re looking at the case against the parents of the alleged Michigan school shooter.

A 15-year-old boy was the one who allegedly pulled the trigger and killed four of his classmates in a Michigan school shooting that wounded seven other people last month, but the county prosecutor charged the kid and his parents.

Charging the parents was an unusual step that signals prosecutors are looking, in the absence of gun control laws, to stop the bloodshed in our schools by holding anyone who contributes to the tragedy accountable. It’s a risky case to make and one that could ultimately embolden prosecutors to criminalize parents when their kids commit a crime and set a kind of precedent that will hit minority parents the hardest.

If the case makes it to trial, Oakland County Prosecutor Karen McDonald will have to prove to a jury beyond a reasonable doubt that Jennifer and James Crumbley are guilty of involuntary manslaughter and contributed to the alleged actions of their son Ethan.

The Crumbleys allegedly bought the gun for Ethan as an early Christmas gift and failed to ask where it was, or pull Ethan out of school, after school officials called them in to discuss disturbing drawings that were found on Ethan’s desk. But that doesn’t mean their actions rose to the level of criminal negligence.

“They’ve got to show that what the shooter did resulted from the negligence of the parents, and that seems like a through line that could be difficult to draw,” said Lara Bazelon, a professor and director of the criminal juvenile justice and racial justice clinical programs at the University of San Francisco School of Law.

While the parents seemed deeply problematic from the information that’s been presented, she said it’s still a jump to show they knew he was going to open fire on his classmates.

Defense attorneys for the Crumbleys didn’t respond to a request for comment, but they have a big advantage in this case.

Thirty states and Washington, D.C., have laws to keep children from accessing guns, and 11 states have laws concerning firearm locking devices, according to the Giffords Law Center to Prevent Gun Violence.

Michigan only prohibits licensed dealers from selling a firearm without a trigger lock, gun case, or other storage container, but there’s no law that forces the gun owner to keep the weapon secure or that holds them liable if a child gains access to it.

Because of that, Nadia Banteka, an assistant professor at the University of the Pacific, McGeorge School of Law, said “it’ll be more difficult for the prosecution to make a case in this instance than if they had some legislation on their side.”

The defense can also argue the school bears responsibility for letting Ethan go back to class and for not checking his backpack, and that the parents were not the primary drivers of the tragedy that occurred.

“It’s an extremely defensible case,” Bazelon said. “On the other hand, these parents are incredibly unsympathetic.”

But there’s a danger here even if the prosecution prevails. Whenever the law is being used in a novel way that extends criminal liability, legal scholars say it often disproportionately is used against Black and marginalized people.

“What I am concerned about is that it’s going to legitimize the exercise of prosecutorial discretion that is very novel and that could be used in future cases quite unlike this to go after parents, who are perceived as not having exercised sufficient responsibility in supervising their children, who go on to commit crimes,” said Evan Bernick, an assistant professor at the Northern Illinois University College of Law, where he teaches criminal law and procedure.

If the prosecution loses, however, Jeffrey Swartz, a criminal law professor at Western Michigan University Cooley Law School and former Miami-Dade County Court judge and prosecutor, said it could promote a parent’s right to involve their children in gun culture.

“I’m sympathetic to the feelings of the prosecutor and her goals, but the ends don’t justify the means,” he said.

In a statement, David Williams, the chief assistant prosecuting attorney for the Oakland County Prosecutor’s Office, pushed back on those concerns. He said the vast majority of gun owners are responsible, but hopes this sends a message to those who aren’t properly securing their weapons, and said any law can be applied disproportionately.

“It’s up to every prosecutor to make sure they exercise their authority in a way that is non-discriminatory,” he said. “The key message in this case is that if a gun owner acts with gross negligence that allows a child access to a gun, and that child shoots or kills someone, that gun owner should be held responsible.”

Still, in this case, it seems like there may be no winners.

To contact the reporter on this story: Lydia Wheeler in Washington at lwheeler@bloomberglaw.com

To contact the editors responsible for this story: Andrew Childers at achilders@bloomberglaw.com; Meghashyam Mali at mmali@bloombergindustry.com