Gun Storage Laws

[BarryLee]

The family of a student killed in the Texas shooting has filed a law suit against the shooters parents. The suit claims that the parents did not do enough to keep the guns away from the shooter. Apparently, Texas currently has laws that require gun owners to take steps to assure minors cannot access their guns. Also, recently Texas Governor Abbott has stated that he is open to possibly making those laws tougher.

I agree weapons should be secured from children, but teenagers are very adept at getting around safeguards. So, I’m concerned that even adults that take reasonable precautions could be held responsible for their teen’s actions. Then part of me says, “of course they should be held responsible” but then I wonder where it ends.

Anyway, what do y’all thank? Should States have laws governing the proper storage of firearms and how far should those laws go?

http://www.foxnews.com/us/2018/05/26/texas-school-shooting-victims-family-sue-suspects-parents.html

 

[Aguila Blanca]

I note that you said the Texas law requires measures to prevent "minors" from accessing firearms. Does the Texas law define "minor"? My state has a safe storage law. It applies if there are children under the age of 16 in the residence. I believe the Santa Fe, Texas, shooter was 17. If so, my state's law would not have applied.

Don't know where the Texas law cuts off.

I agree weapons should be secured from children, but teenagers are very adept at getting around safeguards. So, I’m concerned that even adults that take reasonable precautions could be held responsible for their teen’s actions. Then part of me says, “of course they should be held responsible” but then I wonder where it ends.

If a state has a law, it ends at the provisions required by the law. I'm not a lawyer, but I'm pretty certain that if a state law establishes what the "reasonable" measures are and the parents have met those requirements, a jury would be unlikely to find them liable if their offspring found a way to defeat the measures required by the law.

For example, California defines (or certifies) what's acceptable for a firearms storage container. If I buy the cheapest, flimsiest tin locker on the list and my kid (or some other party) uses a Sawzall or a crowbar to defeat my secure storage, why should I be responsible? The state said that container was secure.

 

[natman]

Firearms storage was the primary issue in the Heller decision. This is what SCOTUS had to say:

"Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. "

DC v Heller, page 3

 

[Aguila Blanca]

Firearms storage was the primary issue in the Heller decision. This is what SCOTUS had to say:

"Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. "

DC v Heller, page 3

Context, Sherman.

It's one thing to prohibit a person from maintaining a loaded, functional handgun in his place of residence when he is at home and may need to defend himself. That's a different matter entirely (IMHO) from storage of unused firearms when the owner doesn't need them, and perhaps isn't even at home. My state requires secure storage of firearms when there are children under the age of 16 in the home. When my daughter was under 16, I adhered to that religiously -- but that didn't prevent me from wearing a loaded 1911 in a holster on my belt when I was home. It did prevent her from having unauthorized access to my firearms.

She is now 23 years old, and if she comes to visit I will continue to keep them locked up. The law doesn't require it, but she has a history of attempted suicides, and I don't wish to provide the means.

 

[TDL]

Right now the laws range roughly from
a) loosest: culpability if a minor gets access to unsecured gun and commits a crime/harm occurs
b) mid: if a minor has access even if they gain no possession and commit no crime
c) strongest, and goal of gun control lobby: access by anyone except the owner, with access being outside a safe anytime not in direct control (say carried in the home). EG a guy with no kids keeping his gun on the nightstand when he not home or even when home is committing a per se crime.

There is a lot of room in heller for much more egregious laws mandating safes and safety devices.

he main win for gun control lobby on this if achieved is a) a shift in insurance coverage, since if it is a crime not to have the firearm in a safe, your homeowners and umbrella maybe void for any coverage of loss/harm since that loss arose out of a crime committed by the insured, and b) removing reasonable expectation tests. An owner with persons under 16, 17, 18 year old* minors in the home, adults who are prohibited in or expected to have access to the home, or adults that may have a mental health issue may currently have to keep any firearms in as safe, but if certain proposed laws are pass your reasonable expectation as to access is moot and you are per se criminally and civilly liable anytime it is not carried/in direct control or in a safe.

This is all a shame since there is so much room for education campaigns on storage that is NOT about mandatory laws. I have a $65 rifle "safe" that is California DOJ approved (putatively the most stringent in the US) that could be opened with a butter knife. It is much more important that people know the conditions under which access typically occurs than making laws about boxes that can almost all be opened with screwdrivers.

*(some states laws are 16, some 17, some 18, and we can expect this to be pushed to 21 in future)

 

[Armed_Chicagoan]

I agree that it is all but impossible to store firearms where a determined 17 year old can't access them. Any safe can be accessed given enough time and some tools, and someone who lives in the house will certainly have the time.

 

[carguychris]

Since nobody has answered this...

I note that you said the Texas law requires measures to prevent "minors" from accessing firearms. Does the Texas law define "minor"?... Don't know where the Texas law cuts off.

TX Penal Code § 46.13 uses the term "child" rather than "minor," and defines a "child" as a person younger than 17 years of age.

 

[MTT TL]

It's one thing to prohibit a person from maintaining a loaded, functional handgun in his place of residence when he is at home and may need to defend himself. That's a different matter entirely (IMHO) from storage of unused firearms when the owner doesn't need them, and perhaps isn't even at home. My state requires secure storage of firearms when there are children under the age of 16 in the home. When my daughter was under 16, I adhered to that religiously -- but that didn't prevent me from wearing a loaded 1911 in a holster on my belt when I was home. It did prevent her from having unauthorized access to my firearms.

She is now 23 years old, and if she comes to visit I will continue to keep them locked up. The law doesn't require it, but she has a history of attempted suicides, and I don't wish to provide the means.

Everyone's family situation is different. I guess it is too much to expect that people be responsible parents such as in your case. My kids had access to loaded firearms in their rooms since the age of 14. This made sense for our family situation and there was never an incident. They are now adults.


Do we make a "one size fits all" type firearm storage law? Laws are only useful if people comply. Who will ensure compliance and how?

 

[Buzzcook]

The Texas law.
http://lawcenter.giffords.org/child-access-prevention-in-texas/

Under Texas law, if a child under 17 years of age gains access to a readily dischargeable firearm (i.e., loaded with ammunition, whether or not a round is in the chamber), a person is criminally liable if he or she, “with criminal negligence:”

Failed to secure the firearm (i.e., to take steps a reasonable person would take to prevent the access to a readily dischargeable firearm by a child, including but not limited to placing a firearm in a locked container or temporarily rendering the firearm inoperable by a trigger lock or other means); or

Left the firearm in a place to which the person knew or should have known the child would gain access.1

However, a person is not guilty under this law if the child’s access to the firearm:

Was supervised by a person older than age 18 and was for hunting, sporting, or other lawful purposes;

Consisted of lawful defense by the child of people or property;

Was gained by entering property in violation of this code; or

Occurred during a time when the actor was engaged in an agricultural enterprise.2)

 

[riffraff]

To Barry's original question "what do y'all think" ..

I think toddlers should not be playing with box cutters or kitchen knives, as well as guns, and to leave either where they can access them is bad parenting but not necessarily a criminal act. It could be a basic mistake, ie guest loads sharp knife in dishwasher, toddler opens dishwasher and accesses sharp knife.

If you are in a state where a 16 year old can posses a firearm, which at least when I was a kid I'm not sure the age was even 16 we had them before then, I do not see how you can legislate needing to lock them away. Or at least I can't see how you create a law that says you need to lock guns away from a minor if they are able to posses them legally anyway.

Similarly I also draw the line with laws requiring to lock guns up when it comes to just general storage. If someone breaks into a home and steals things I see no responsibility of the owner as far as what is done with those things later.

With kids in the home - well if you got a state law that says under X age they can't have guns, then there is logic to mandating security measures. But where do you draw the line? If a 15 year old kid steals a key, or sneaks into his dads bedroom and swipes a handgun from the night stand while his dad is sleeping - is that the parents fault? I don't think so. Seems like you need more around it than simply any breach of such access is a criminal act by the parents.

 

[Frank Ettin]

The Texas law mentioned by Buzzcook in post 9 deals with criminal liability. But the OP refers to a law suit, i. e., a civil claim for monetary damages.

Tort liability if someone gets your allegedly improperly stored gun and hurts someone with it will generally be based on negligence. Negligence in law is basically:

A failure to behave with the level of care that someone of ordinary prudence would have exercised under the same circumstances. The behavior usually consists of actions, but can also consist of omissions when there is some duty to act (e.g., a duty to help victims of one's previous conduct).

Negligence is generally a question for a jury. Basically the jury will need to decide, after all the evidence about what took place and what everyone said or did is presented whether the defendant acted as a reasonable and prudent person would in the same situation.

So --

1. In general, everyone has a legal duty to exercise due care to avoid reasonably foreseeable injury to others. If one is found not to have done so and thus caused damage to another, he could be required to compensate the injured person for that damage.
   
   
2. A gun is a potentially dangerous instrumentality. If someone stores his gun in a manner in which it is foreseeable that it can be accessed by an unauthorized person, such as one's child, and such person gets the gun and hurts someone, under some circumstances a jury might decide that the gun owner failed to exercise appropriate care and may be held financially liable.
   
   
3. These sorts of results are highly circumstance dependent. Whether there can be liability will be a matter of exactly what happened and how.
   
   
4. Consider this case from gun-friendly Montana, Estate of Strever v. Cline, 278 Mont. 165 (Mont., 1995), at 174 -- 175 (emphasis added):

   ...A firearm, particularly one that is loaded or has ammunition in close proximity, is considered a dangerous instrumentality and therefore requires a higher degree of care in its use or handling. This concept is set out in the Restatement (Second) of Torts, which provides:
   
   Care required. The care required is always reasonable care. This standard never varies, but the care which it is reasonable to require of the actor varies with the danger involved in his act, and is proportionate to it. The greater the danger, the greater the care which must be exercised.
   
   As in all cases where the reasonable character of the actor's conduct is in question, its utility is to be weighed against the magnitude of the risk which it involves. [Citation omitted.] The amount of attention and caution required varies with the magnitude of the harm likely to be done if care is not exercised, and with the utility of the act. Therefore, if the act has little or no social value and is likely to cause any serious harm, it is reasonable to require close attention and caution. So too, if the act involves a risk of death or serious bodily harm, and particularly if it is capable of causing such results to a number of persons, the highest attention and caution are required even if the act has a very considerable utility. Thus those who deal with firearms ... are required to exercise the closest attention and the most careful precautions, not only in preparing for their use but in using them....
   
   Restatement (Second) of Torts § 298 cmt. b (1965).
   
   Accordingly, given the foreseeability of the risk involved in the improper and unsafe use and storage of a firearm; given the strong policy considerations favoring safe and prudent use and storage; and on the basis of the law as set forth in §§ 1-1-204, 27-1-701 and 28-1-201, MCA, our decisions in Limberhand, Maguire, Phillips, Mang and Busta and the above referred to standards of care set forth in Prosser and Keeton on Torts and in comment b to § 298 of the Restatement, we hold that, as a matter of law, the owner of a firearm has a duty to the general public to use and to store the firearm in a safe and prudent manner taking into consideration the type of firearm, whether it is loaded or unloaded, whether the ammunition is in close proximity or easily attainable, and the location and circumstances of its use and storage.
   
   Because we conclude that Susanj owed a legal duty to the general public to store his firearm and ammunition in a manner consistent with this standard of care,...

...I see no responsibility of the owner...

So what?

 

[MTT TL]

OP's Questions was:

Should States have laws governing the proper storage of firearms and how far should those laws go?

This implies a criminal code and not civil negligence. A criminal code violation is often a good foundation for a negligence case but is not necessary. There is a bit of conflating of these two issues. To help separate for purpose of discussion the criminal code does not apply in the cited case:

a child under 17 years of age

Dimitrios Pagourtzis was 17 at the time of the shooting so there is no Texas Criminal Code violation readily apparent.

Negligence will most likely have to go to a jury.

And to the OP's original question asked and answered above.



I am not sure the case cited by Frank would hold up everywhere. It also has less to do with home storage. As always I don't recommend storing a loaded gun in your car but if you have to for some reason.... lock your car and if possible lock your gun up inside your car.