Did a Michigan DA make up a new law?

[Frank Ettin]

Originally Posted by Aguila Blanca

....The parents of the kid who killed several schoolmates in Michigan have been arrested and charged with manslaughter. The problem is that there apparently isn't any law that they violated....

1. See People v. Head, 323 Mich.App. 526, 917 N.W.2d 752 (Mich. App. 2018), at 532:

   ...'Manslaughter is murder without malice.' People v. Mendoza , 468 Mich. 527, 534, 664 N.W.2d 685 (2003). 'The common law recognizes two forms of manslaughter: voluntary and involuntary.' Id . at 535, 664 N.W.2d 685. Involuntary manslaughter is a catch-all crime that encompasses all homicides that do not constitute murder, voluntary manslaughter, or a justified or excused homicide. People v. Holtschlag , 471 Mich. 1, 7, 684 N.W.2d 730 (2004). The requisite mental state for the type of involuntary manslaughter charged in this case is gross negligence. See id . at 16-17, 684 N.W.2d 730. Gross negligence means wantonness and disregard of the consequences that may ensue. People v. Feezel , 486 Mich. 184, 195, 783 N.W.2d 67 (2010). Wantonness exists when the defendant is aware of the risks but indifferent to the results; it constitutes a higher degree of culpability than recklessness. Id . at 196, 783 N.W.2d 67.....

   
   
2. Everyone has and implied in law duty to go about his business so as to avoid causing foreseeable harm to others. 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.
   
   
3. Ordinarily negligence can subject the actor to only civil liability. But extreme forms of "negligence" -- gross negligence, recklessness, or wantonness -- can result in the actor being held criminally liable for any harm he causes.
   
   
4. These sorts of results are highly circumstance dependent. Whether there can be liability will be a matter of exactly what happened and how.
   
   
5. 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,...

[Metal god]

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.

Ordinarily negligence can subject the actor to only civil liability. But extreme forms of "negligence" -- gross negligence, recklessness, or wantonness -- can result in the actor being held criminally liable for any harm he causes.

These sorts of results are highly circumstance dependent. Whether there can be liability will be a matter of exactly what happened and how.

Consider this case from gun-friendly Montana, Estate of Strever v. Cline, 278 Mont. 165 (Mont., 1995), at 174 -- 175 (emphasis added):

These are the very things many believe the school counselor or other officials are them selves responsible for this unfortunate outcome . They had almost the exact same info the parents had to include ( as far as I know ) that the child had access to a firearm based on social media post the student had posted days earlier .

That may not be completely accurate do to the fog of war type of thing . It's been reported the school officials had seen the tweet or what ever it was of the student posting a pic of the firearm on social media . This may have been reported to them right after the shooting and it's simply been reported they knew about it but not said when they knew . To be honest I'm not following that case as close as others right now .

[KyJim]

I had meant to post earlier in this thread, but other things got in the way.

First, some states still have common law crimes; i.e., crimes not defined by statute but which have elements well-defined by case law over many years. It was my understanding that Michigan's involuntary manslaughter offense is a common law offense. Frank's post #26 appears to confirm this.

Most states have similar offenses to Michigan's, which are defined in some way based upon negligence, recklessness, or wantonness (extreme or gross negligence). These typically do not require the use of firearms at all, though some states may consider the use of firearms an aggravating factor.

In my state, firing a gun up in the air without the bullet hitting anyone might simply be prosecuted as disturbing the peace. But, other facts may be present that changes that action into a more serious offense such as the offense of wanton murder; i.e., wanton conduct plus extreme indifference to human life resulting in a death. Wanton murder in my state has the same penalty as intentional murder (what some states call murder in the first degree).

My state Supreme Court upheld a wanton murder conviction where the defendant fired his gun in the air. This provoked several unidentified persons to return fire, with one of the bullets striking and killing an innocent bystander. Here's a paragraph from the opinion that explains the result:

Furthermore, a reasonable jury could have concluded that Taylor had reason to know that a shoot-out was rendered substantially more probable by his firing the initial, and multiple, shots into the air amid a late-night crowd gathered in a parking lot to socialize. Evidence showed that Taylor went to the Cook Out looking for a fight: he armed himself with a handgun in preparation for confronting the man who had robbed his son earlier that day. Taylor was aware that the perpetrator had also taken a gun from another young man. Taylor entered a crowd of people, armed and on a mission, and fired gunshots into the air with the intent to disperse the crowd so that he could locate his target. Indeed, by his own admission, Taylor began firing gunshots into the air to clear the crowd: he knew the crowd would panic and disperse, and he counted on it. Forensic evidence showed that multiple people returned fire, a testament to the likelihood that a dangerous reaction to Taylor's provocation might occur. When bullets start flying in a crowd of people, no one should be surprised when someone gets shot.

Taylor v. Commonwealth, 617 S.W.3d 321 (Ky. 2020).

So, in answer to A.B.'s original question, the Michigan D.A. did not make up an offense. The entire set of publicly known facts arguably can support the charges without there being a specific law requiring safe storage of firearms from a minor. And, I would hazard a guess that if that was the only thing the parents allegedly did wrong, they would not be facing prosecution. But I could be wrong about that.

[jmr40]

Do school administrators have legal authority to search a student's backpack, locker, etc. at any time for any reason? If so, there might be some liability for not doing that.

A law enforcement officer cannot, but teachers and school administrators can. The LE officers are usually present when the search takes place and if anything is found they can then proceed.

There are certain limits, but school teachers and administrators are considered "in loco parentis"

https://legal-dictionary.thefreedict...+loco+parentis

In a nutshell they have the same rights as parents, and a parent does not have to get a warrant to search their kids room or belongings.

[mehavey]

Did the school know the kid had access to a weapon ?

...school officials must have “reasonable suspicion” before searching
a student’s items. Lockers, on the other hand, are owned by the
school, so the school can search those without having “reasonable
suspicion.”

and... does anyone yet know where the weapon was kept?

[BornFighting88]

Good question. It seems to me that if they knew something was up and they had already previously asked the parents to pick the kid up and bring them home, then that would have sparked the sane mind to go start doing a locker search.

I was just thinking to myself about the rights of students in their personal belongings being searched without reasonable suspicion. That would tip me off as too far. But the lockers, yes I do see that. Their property, their rules. Kids didn’t rent them and sign a lease giving them at least some recourse if searched without notice.

But back to the point of them maybe knowing something was up. To me that is a thin line to tread when it comes to searching students’ belongings. Does one think it is reasonable suspicion?? Or does that cross said line?? That they just say they have reasonable suspicion whenever they feel like searching students???

[Mainah]

Back in the 80's the police in my uncle's rural PA town started doing random locker searches with dogs looking for drugs. It made him furious. but it was legal. I knew his kids had nothing in their lockers, and I asked him why it made him so mad- "because they're being indoctrinated."

[BornFighting88]

Yes I agree with that Mainah. The school board in my rural town in PA made it that the students had to be present when the lockers were opened, and an impartial 3rd party there to witness the search to make sure no funny business or railroading happened.

Searches NEVER came up with anything. The few kids who dealt in pot kept it either off campus or in their cars. Otherwise, the kids in this little farm town were pretty clean.

Heaven forbid they found tobacco in an 18 year olds locker, the place was put on such a stupid lockdown over chew, you’d think it was a controlled substance!! While still illegal on school grounds, it was still an abusive practice of randomly searching three or so times a year. It eventually ended from backlash and lost class time.

The indoctrination that the student’s shouldn’t take any initiative to be responsible for themselves, and that the school (government for us grown ups) is going to take care of you for you…. That is scary bad medicine!!!

[Rob228]

Searches NEVER came up with anything. The few kids who dealt in pot kept it either off campus or in their cars. Otherwise, the kids in this little farm town were pretty clean.

Early 2000 had some people from my school get expelled for having a BB gun in their car on a "gun free school zone". I graduated January 01 but typically had a shotgun in the back of my car as I would go to school before or after hunting. I just didn't tell anyone so my car never got searched.

And now that I think about it, the only locker I can remember getting searched as a result of bringing dogs through the school was that of a teacher's kid. That was interesting to say the least.

[Metal god]

I could see that maybe you can’t search the students person or backpack but would think the lockers can be searched at any time for any reason . The locker is not their’s and is provided to them by the school and the school never gives up ownership. Kinda like your supplied desk or computer from your employer ? Yes/no ???

That said and I know this is a slippery slope but who cares about the kids rights in this circumstance . If you feel that strongly he/she is that much of a threat . Search them and deal with the consequences later . Also as I stated earlier they always had the option to hold the student in the office until end of day then escort off campus .

[mehavey]

...lockers can be searched at any time for any reason...
Yes/no ???

Yes.
See Post #30
and
http://www.legislature.mi.gov/(S(ggu...ubsection%20(2).

[imp]

While I'm certainly no attorney, there is something about this case particularly that has me bothered.

By charging the parents with negligence, isn't that a de facto admission by the prosecution that the person that pulled the trigger was not only a minor, but also not fully responsible for his own actions?

And, if that's the case, dosen't the state have to try the shooter as a juvenile, and thus his punishment will be much less?

[Frank Ettin]

Originally Posted by imp

…By charging the parents with negligence, isn't that a de facto admission by the prosecution that the person that pulled the trigger was not only a minor, but also not fully responsible for his own actions?

And, if that's the case, dosen't the state have to try the shooter as a juvenile, and thus his punishment will be much less?

The short answer is “no.” The possible culpability of the parents for acts that contributed to the incident doesn’t necessarily affect the possible culpability of the shooter.

[5whiskey]

What was their crime? NOT believing and acting on what some school official told them? That might be enough to get them convicted I suppose.

The people the OKC bomber stayed with got 10year sentences for not turning him in to the Feds when he told them his plans. Their only defense was that they simply did not believe McVeigh was actually serious.

That isn´t entirely accurate. If you refer to Michael and Lori Fortier, they both committed overt acts to assist Mcveigh. Michael drove him around to scout the target, and Lori helped create a fake ID to rent the truck used. As it stands, in Common law there is rarely any ¨duty to act¨ or ¨duty to report.¨ You can give a friend a ride to the store, walk in with him, and watch him rob the store, and you are largely blameless if you sincerely didn´t have any previous knowledge that he intended to rob the store. You are not guilty of anything for being merely present.

Now, if you know your friend intended to rob the store when you drove him there, you are an accessory as you assisted his criminal act. If you did not know, but then watched him rob the store and decided to drive him away, you are an accessory after the fact. Any overt act that aides another in committing a crime can be prosecuted. Merely being associated with the criminal actor, but providing no aid or assistance to the criminal act, cannot be criminally be prosecuted in 99% of cases.

I could see how having a parent/child relationship could possibly open the parent up to a negligent killing/manslaughter charge, depending on what the parent knew and facts of the parents failing to take proper precautions to prevent their child from causing harm. If the child was not a minor, this likely would not be the case. Since he is, they can (in some circumstances) bear responsibility.

I believe the DA has a VERY tall hurdle to jump here. Although, to be completely fair the parents did not help their case out at all by going on the run after it happened. This is absolutely a fact that will not sit well with any juror IMO.