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Oxford High Shooting: A Watershed Moment for Prosecuting Parents?

Dec. 16, 2021, 9:00 AM

On Nov. 30, Oxford Township, Mich., was the site of the latest and unfortunately, familiar, deadly school shooting.

Fifteen-year-old high school sophomore Ethan Crumbley opened fire at Oxford High School. This act of horrific violence led to the deaths of four students, and severely injured seven others. Crumbley was charged as an adult with four counts of murder, as well as a terrorism charge. He faces life in prison upon conviction.

But instead of the usual thoughts and prayers, hand wringing, and inaction, prosecutors assigned to the case took a drastic, and somewhat innovative, step. They charged the parents of the shooter, James and Jennifer Crumbley, with involuntary manslaughter, putting the entire country on notice that we all can be part of the cure to our gun violence epidemic and could be held responsible if we don’t act.

The Charges

In the U.S., criminal conduct is typically not charged against a passive wrongdoer unless prosecutors can make out a legal theory based upon either solicitation, conspiracy, or aiding and abetting.

In other words, the passive wrongdoer, in this case Ethan Crumbley’s parents, must have taken affirmative steps in agreeing with the active wrongdoer or assisting the active wrongdoer. Once again, the passive wrongdoer must have been aware of the criminal conduct that would take place, or at least know that the criminal conduct was foreseeable.

The charges against James and Jennifer Crumbley stem from the allegation that, for Christmas, they bought their son the weapon used in the commission of this offense. Beyond that, on the morning of the shooting, the Crumbleys were called into the school after it was discovered that Ethan had constructed drawings, in which he noted, in sum and substance, that he had thoughts of shooting a gun.

After being informed of this, text messages revealed a message sent by Jennifer Crumbley to her son, in which she had, in sum and substance, told her son that she is not upset with him, and simply told him not to get caught in the future. No further actions were taken by the Crumbleys to help their son or ascertain his mental state.

On Dec. 3, prosecutor Karen McDonald announced that the Crumbleys would be charged with four counts of involuntary manslaughter. Essentially, the charges seek to hold the Crumbleys accountable for their failure to take preventive measures to ensure their son was not a danger to others.

In order to convict the Crumbleys, prosecutors will have to show that the Crumbleys created a set of circumstances in which the risk of death was very high.

Certainly, from the facts that we have at our disposal, it is difficult to tell whether those elements can be satisfied. In the coming weeks and months, evidence will likely come out as to the relationship between the Crumbleys and their son, whether any prior risks were known to them, and whether they acted properly in disregarding the apparent warnings at the school prior to the shooting.

Each involuntary manslaughter count carries up to 15 years in state prison.

Civil Liability

In addition to criminal charges, we will likely see a set of civil suits arise from the shooting. In fact, a $100 million suit has already been filed against the school district.

Any lawyer who takes on tort cases like this will tell you that the most important portion of a personal injury case is whether there is a defendant who is not “judgment proof,” meaning they possess the resources or insurance to pay a court judgment against them.

Unlike in a criminal case, recovery in a civil suit carries a far less serious burden of proof. The standard of proof would be proof “by preponderance of the evidence,” rather than “beyond a reasonable doubt.”

Beyond that, the filing party in such a case would simply have to prove negligence on the part of the Crumbleys─that they breached a duty of care by acting as they did. That is far less difficult than the involuntary manslaughter standard described above. So, it may well be easier to successfully win a civil suit against the Crumbleys than it will be to send them to jail.

Whether they have resources to pay if they lose any of these possible cases remains to be seen. But it should be a thunderous wake-up call to all parents and perhaps even friends that they, too, could be held responsible if a loved one commits a crime they knew could happen and didn’t try to stop.

The Implications

The dramatic nature of charging parents for the conduct of their children cannot be understated. If bad parenting was chargeable as a criminal offense, then the entire criminal justice system would be turned upside down.

However, this case is not about mere bad parenting, it is about the steps that the parents should have taken to prevent such a tragic event.

In this situation, you have parents who purchased a weapon for their child, then may have disregarded somewhat explicit warnings that the child may use the weapon in a dangerous way, and expressly seem to have laughed off the severity of these possible events. Under these very specific circumstances, it is possible that this will be a watershed moment for prosecutions involving acts of violence by children.

However, it is unlikely that these charges will be the norm for school shootings going forward. Charges such as these will only be limited to instances where there is a very direct connection between the parents’ conduct and a violent result brought about by a child.

This case does not necessarily mean that parents who buy guns for their children will now be charged with homicide offenses, but hopefully it will make them think more responsibly when they do.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Dmitriy Shakhnevich is an adjunct assistant professor of Constitutional Law at John Jay College of Criminal Justice of The City University of New York. He is the founder of the Law Firm of Dmitriy Shakhnevich, based in Manhattan where he represents clients in criminal cases and various matters in civil litigation.