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Old October 11, 2020, 03:38 PM   #51
Thomas Clarke
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44 AMP, you are correct and I agree with every point you made. If there are no criminal laws governing the shooting by firearm of a juvenile by another juvenile then there is no crime. That means that there are no criminals here. I do believe that the moral and civil wrongs which are stem from the actions by the juveniles should be subject to review by the authorities.

If the juvenile obtained the loaded firearm despite the parent's most prudent actions I would argue that the thing speaks for itself. But that may not apply to Pennsylvania law. There may in fact not be criminal or civil laws governing firearm discharges by juveniles in Pennsylvania resulting in death and/or dismemberment. I would hope that at the very least there were laws governing the casual shooting of non-humans by juveniles. I hope that we value human life at least as much as animals, but perhaps that is not the case in Pennsylvania.

White Eagle, I can cite no laws for you as there is apparently no law in Pennsylvania covering the circumstances. So those involved have violated no apparent laws. So you are right that they are not criminals.

As to whether my statements are irresponsible and slanderous, I do not think that that is so, but you are certainly entitled to your opinion. It is very hard to slander or libel someone if what is said is true.

I have followed your many posts, and commented on very few. I suspect that we likely agree on many things. Perhaps not. I do believe that the collapse of responsible parenting and the family over our lifetimes is the cause of much of the damage to our society. it is as though the moral compass of a life well lived has been left to those with little skin in the game.
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Old October 11, 2020, 03:48 PM   #52
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If there are no criminal laws governing the shooting by firearm of a juvenile by another juvenile then there is no crime.
1. If there are laws making it illegal for a juvenile to possess a firearm then there would be a crime.
2. If there are laws making it illegal to not secure a firearm to prevent access and those laws were not followed then there would be a crime.
3. If there are laws making the discharge of firearms a crime under certain circumstances and those laws were broken then there would be a crime.

And so on, etc.

In short, there could be any number of ways for a crime to be committed even without there being an actual law against one juvenile shooting another with a firearm. One can't simply look at the most obvious "problem" and assume that if there's no law explicitly addressing it then everything is fine. It's far more complicated than that. That is why there are people who specialize in that field and why their services tend to be very expensive.
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Old October 12, 2020, 01:54 AM   #53
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Homicides are covered under Title 18 in PA's code. https://www.legis.state.pa.us/cfdocs...&div=0&chpt=25

I would assume that is the most important one for the criminal act portion...
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Old October 12, 2020, 08:08 AM   #54
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I see a whole lot of discussion about the parents' liability in this one, both civil and criminal. And the answer to the age-old question of how one eats an elephant is, of course, "one bite at a time." So let's break this down. Liability falls into two general categories: (1) criminal; and (b) civil.

Criminal liability: There were some statements in this thread that the actual (juvenile) shooter's parents are 'criminals.' I would ask, "For what?" In the absence of a statute criminalizing some action or omission on the part of those particular parents, how can they be 'criminals?' According to the decision linked in Post #1, the decedent and a 14-y.o. friend visited a third friend, and that the third friend: (a) was the child of the firearm owner; and (b) shot the decedent. For purposes of criminal liability, exactly what actions or omissions were taken by the shooter's parents that might render them criminally liable? Here are some examples:
  • Allowing a teenage child to have friends over unsupervised? (Assuming the boy even had permission?)
  • Failure to secure the firearm?
  • Failure to properly warn the child that the pistol would fire with the mag removed?
  • Failure to properly train the minor in safe gun handling?
I didn't do any hardcore research, but I did a quick scan of PA law and I saw nothing to indicate that any one of those is a crime. Thus, I cannot agree that the parents of any of those minors is 'a criminal,' despite the fact that a tragedy has occurred. (And no, I'm not licensed in PA.)

With that said, let's turn to civil liability. The first question with regards to the parents is "what liability do the parents have for the torts of their children?" At common law, the answer is generally, "none," or perhaps more accurately, "none, based solely on the parent-child relationship." Generally, the list I made above might provide some basis for arguing that the parents were negligent. However, the law recognizes that even when a parent does everything right, a minor child may go off and do things on his or her own. (Funny thing about kids, that ....) To put it in terms of PA law: "Ordinarily, '[t]he mere relation of parent and child imposes no liability upon the parent for the torts of the child.'.... Parents, however, are not always insulated from liability for tortious acts of their children. 'Parents may be liable ... where negligence on the part of the parents makes the injury possible.'" Keener v. Hribal, 351 F. Supp. 3d 956, 965 (W.D. Pa. 2018)(internal citation omitted).

The common law in PA, however, has been modified or supplanted by statute. "Any parent whose child is found liable or is adjudged guilty by a court of competent jurisdiction of a tortious act shall be liable to the person who suffers the injury to the extent set forth in this chapter." 23 Pa. Stat. and Cons. Stat. Ann. § 5502 (West). It would appear that there is a basis for come kind of civil liability on the part of the parents, at least at first blush. That said, I don't see any reported decisions under this statute since 1993. The statute was enacted in 1990, and the 1993 decision is the only one. I suspect that if push came to shove (a trial), counsel for the defense would argue that the statute did not displace this little tidbit of common law: "Perhaps many of the harsh results sometimes associated with the imputation of contributory negligence can be attributed to our mistaken assumption that a principal is vicariously liable for the negligent acts of his agent. We therefore now state unequivocally that only a master-servant relationship or a finding of a joint enterprise will justify an imputation of contributory negligence." Burton v. Althoff, 64 Pa. D. & C.2d 366, 368 (Pa. Com. Pl. 1973)(emphasis supplied)

So using negligence as our guideline (and I'll wing it here: Generally speaking, negligence may be defined as, "an act or omission that a reasonably prudent person would not have done under the circumstances."), what did the parents do or omit that might be considered negligent?
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Old October 12, 2020, 09:39 AM   #55
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Quote:
Originally Posted by raimius
Homicides are covered under Title 18 in PA's code. https://www.legis.state.pa.us/cfdocs...&div=0&chpt=25

I would assume that is the most important one for the criminal act portion...
But the kid who pulled the trigger has already pleaded guilty to a criminal charge (under that statute, no doubt) and has been sentenced. What's being discussed now is whether or not either the adult(s) who owned the gun and/or the parents of the kid who pulled the trigger have any criminal liability for the kid's negligent act. The kid was convicted of the charge of involuntary manslaughter. There is nothing in the statute you cited, and particularly in the section on involuntary manslaughter, that talks about the parents of minor children who commit criminal acts.
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Old October 12, 2020, 12:20 PM   #56
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According to the decision linked in Post #1, the decedent and a 14-y.o. friend visited a third friend, and that the third friend: (a) was the child of the firearm owner; and (b) shot the decedent.
I didn't see that in the link in post#1. I saw this..

Quote:
On March 20, 2016, J.R. Gustafson and his 14-year-old friend visited a
Westmoreland County home owned by Joshua Hudec.1
J.R.’s friend obtained
Mr. Hudec’s Springfield Armory, semiautomatic handgun, model XD-9.
No mention of a 3rd friend (son of homeowner or not). No mention of the circumstances of how the 14yr old friend obtained the homeowner's pistol.

This is somewhat understandable as the linked document is very narrow in scope, covering only the legal aspects of the appeal and not aspects of the crime. The court document also said this..

Quote:
1 We take these facts from the Gustafsons’ complaint, because the trial court
sustained the defendants’ preliminary objections in the nature of a demurrer.
Hence, we must accept the Gustafsons’ factual allegations as true for purposes
of this appeal. See Mazur v. Trinity Area Sch. Dist., 961 A.2d 96 (Pa.
2008). The complaint does not indicate what role, if any, Mr. Hudec played in
these events or whether he was at home when they occurred.
Information about if there was a 3rd person there, and what the circumstances were leading up to the fatal shot are not in the document linked to in post#1.

It seems that the appeal panel made no effort to determine what the FACTS in the case actually were. They specifically state that they are taking the Gustafson's allegations at face value, as true, which is all they need do for the purpose of ruling on the appeal.

The ONLY thing the court was ruling on, in this specific matter was not who was responsible, or to what degree, but only if using the PLCAA as a defense was sufficient to allow the trial court judge to dismiss the case.

They ruled it was not. As for the rest, we're now into wait and see territory, until, unless the original case moves forward.
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Old October 12, 2020, 01:52 PM   #57
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So let me get this straight; this is about where somebody tried to sue a gun manufacturer because the company that made the handgun that somebody accidentally killed somebody was because the gun did not have a magazine disconnect, and they thought the gun was safe after they ejected the magazine out of it? My other question would be what does the 10th amendment have to do with this? Oh and well I might add, I’m not really understanding what the 10th amendment even is.

I’m sure there’s others but so far the only pistol I’ve ever had that had a magazine disconnect was a Ruger LC9S. Of course, that’s only on the non-pro model. The pro model doesn’t have that but it also doesn’t have a slide-mounted safety either.

All of my other handguns will fire whenever a round is in the chamber whether a magazine is inserted or not. But, they all say that on the side of the slide. Did this gun that was used, not say that?

But then again, I just pulled out my Springfield XDE and gave a look at it and it of course, it doesn’t say that anywhere on the side of the pistol. I’m assuming that’s because it has a spring powered pop-up loaded chamber indicator? Does the pistol in this case not have that?


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Old October 12, 2020, 02:18 PM   #58
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Originally Posted by 44 AMP View Post
I didn't see that in the link in post#1. I saw this..

No mention of a 3rd friend (son of homeowner or not). No mention of the circumstances of how the 14yr old friend obtained the homeowner's pistol...
44 AMP, you're absolutely right. I read "....On March 20, 2016, J.R. Gustafson and his 14-year-old friend visited a Westmoreland County home owned by Joshua Hudec...." and I assumed that there was another friend involved. After all, why would two teenage boys go visit Hudec's home, unless Hudec had a son that they wanted to visit. After all, the decision doesn't say that they broke in, so presumably they had permission from someone to be there. It also does not state that the 'friend' was Hudec's child. So what were they doing there? That said, the decision does not actually mention this fictitious third person I imagined.

It makes it a little more puzzling to me, but thanks for the correction.
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Old October 12, 2020, 02:27 PM   #59
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Originally Posted by corneileous View Post
So let me get this straight; this is about where somebody tried to sue a gun manufacturer because the company that made the handgun that somebody accidentally killed somebody was because the gun did not have a magazine disconnect, and they thought the gun was safe after they ejected the magazine out of it?
Yeah, that's pretty much the Readers' Digest version.
Quote:
Originally Posted by corneileous View Post
My other question would be what does the 10th amendment have to do with this? Oh and well I might add, I’m not really understanding what the 10th amendment even is.
Congress & the federal government have the power to regulate interstate commerce.
Quote:
The Congress shall have power . . . . To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;...
But the 10th Amendment limits this, at least in theory, and it often comes up in States' rights discussions.
Quote:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
So the question for this case was whether the fact that the pistol moved in or affected interstate commerce (however far back and however remotely) gives Congress a solid basis for the PLCAA to shield the manufacturer from this lawsuit.
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Old October 12, 2020, 03:13 PM   #60
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Quote:
Originally Posted by Spats McGee View Post
Yeah, that's pretty much the Readers' Digest version.

Congress & the federal government have the power to regulate interstate commerce.

But the 10th Amendment limits this, at least in theory, and it often comes up in States' rights discussions.

So the question for this case was whether the fact that the pistol moved in or affected interstate commerce (however far back and however remotely) gives Congress a solid basis for the PLCAA to shield the manufacturer from this lawsuit.

Hmm. Well, I don’t see how this is the fault of the manufacturer. I’m not sure which XD pistol this is but don’t they have the loaded chamber indicator on top of the slide? If it’s one of the striker fired pistols, don’t they also have on the back of the slide, that little pin that protrudes out if the striker is cocked?

Thank you for your explanation of the 10th amendment – even though I’m still kind of fuzzy on what it is and how it has anything to do with this but still, I still just don’t see how these people can come back and blame the handgun manufacturer because not all handguns are made the same. To me, this would be no different from somebody trying to sue Glock for not having a slide mounted safety or for not having the grip safety. Or like trying to say there’s a set standard on how hot coffee should be that’s sold at a fast food restaurant… LOL. Well, I’m sure after that lady sued McDonald’s, there probably is now.


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Old October 13, 2020, 01:47 PM   #61
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Originally Posted by Corneileous
Thank you for your explanation of the 10th amendment – even though I’m still kind of fuzzy on what it is and how it has anything to do with this but still, I still just don’t see how these people can come back and blame the handgun manufacturer because not all handguns are made the same.
The PLCCA is a federal law. In order for the federal government to enact any law affecting products, the product(s) must be or at one time have been in interstate commerce.

Going the other way, that concept is what lies behind a movement a few years ago by a few states that enacted laws saying that firearms that were manufactured and sold entirely within those respective states were exempt from federal laws. Of course, then you get into the extent of interstate commerce. The gun was made of steel. Were ALL the metals involved in the steel alloy mined, smelted, refined and alloyed within the state?I think Montana was one of the states that enacted such a law. Did a gun made in Montana contain even one screw or spring that came from another state? If so --> Interstate commerce. What are the grips made of? Wood? Was the tree grown in Montana, the logs sawn in Montana, and the grips made in Montana? If the grips were rubber or polymer, what was the source of the raw materials? If anything came from outside of Montana, that would open the door to saying the firearm was in interstate commerce.

Remember, the United States is supposed to be, at its heart, an assemblage of independent states. By way of the federal Constitution, the states comprising the United States have agreed that they will allow the federal government to regulate things that affect more than one state, i.e. interstate commerce. If you read new laws enacted by the Congress, a tremendous number of them begin with the statement that, "Because ___ is in or affects interstate commerce, therefore we take jurisdiction and we establish the following rules: ..."
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Old October 13, 2020, 02:01 PM   #62
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The Constitution sets the groundwork with "regulate interstate commerce" but it is case law (in the 20th century) that has set the precedent that the Fed has authority over everything that moves, has moved or could move in interstate commerce.

Some of us believe that is an overbroad reach of power, but it is the law, and remains so, to date.

Now, in the shooting under discussion, as I see it, we have an interesting twist of logic and very narrow court rulings on very specific parts of the law.

The child who pulled the trigger plead guilty and that part is settled. The lawsuit seeks to punish others beyond that, for their perceived "negligence".

That case did not (yet) get its day in court. The court tossed it out, based on the PLCAA act. The PA appeal judges reversed that, saying the PLCAA was not protection, in this case.

They looked at those exceptions given in the PLCAA and determined that this case was one of them, and so could proceed.

HOWEVER, in order to do that, they accepted the claims of the suit AS FACT, when those facts had not been found to be facts in court.

What is the multiple of a Catch-22?? catch -44? -66? I don't know...
but what it seem to me to be is that a claim of a defective product or sales practice is just that, a claim, UNTIL ruled valid by a court. And that if the PLCAA tosses the suit, it cannot be ruled on by a court.

SO, it looks like the PA judges chose to allow the suit to go forward to see if the claim of defect will be found to be real in court. However, in order to do that, they had to accept the unproven claim as valid, as applied against the PLCAA as a defense.

They don't say the claim of a defect is valid, but they are acting as if it is a settled matter, but only against the use of the PLCAA as a defense.

Tricksy and dodgy to my way of thinking but I can (barely) follow the logic.

If I've got any of this significantly wrong, please, enlighten me.
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