Case In State v. Bauer (2014), Douglas L. Bauer was charged with third-degree assault. State v. Bauer 329 P.3d 67 (Wash. 2014) History Douglas L. Bauer ( Defendant) was charged with third-degree assault. The Superior Court, Kitsap County, demied Bauer's motion to dismiss, but certified matter to the Court of Appeals. The Court of Appeals upheld the denial of motion to dismiss in a split decision. The Washington Supreme Court granted discretionary review, and reversed (5-1) the Court of Appeals. Gonzalez, ], filed dissenting opinion. McCLOUD, J , joined by MADSEN, CJ, and JOHNSON, OWENS , J. M. JOHNSON , I.P.T. JOHNSON , and WIGGINS, J]. Facts On February 22, 2012, at about 1:30 p.m., the children at Armin Jahr Elementary School in Bremerton, Washington, were getting ready to go home for the day. As the teacher prepared to lead the children from the classroom to the school bus, she heard a loud pop. Looking around, the teacher saw one child bent over with blood on her hands. She summoned other staff, and before long they realized that the bloodied child had been shot. A staff member noticed a backpack on TC's desk. It contained a gun_ The backpack was identified as TC's backpack, and afier the police arrived, TC was transported to a Youth Services Center for booking. Police later concluded that the gun, a Heckler & Koch .45 caliber pistol, had discharged \"while still inside the back pack.\" Police interviewed TC several times. TC explained that he had been visiting his mother and her boyfriend Bauer in their home for the past three years, since he was six years old. He asserted that ever since he first visited, he had seen multiple guns accessible throughout the house. TC said that his mother and Bauer told him the guns were all loaded. According to TC, the weekend before the shooting, as he was leaving Bauer's house, he saw a gun on a bedroom dresser and \"swiped the gun into his backpack.\" TC explained that he took the gun because some classmates had \"told him they were going to have teenagers come and beat him up.\" He asserted that the shooting was accidental. TC pleaded guilty in juvenile court to reckless endangerment and was sentenced to probation and counseling. Police also interviewed TC"s mother and Bauer, along with TC's siblings. Their statements corroborate TC's statements that there were multiple unsecured and loaded guns around the house. Opinion Causation in Criminal Law Is Different from Causation in Tort The assault statute does not define the term \"cause.\" Our court has ruled that \"before criminal liability 1s imposed, the conduct of the defendant must be both the cause \"cause in fact\" and \"legal cause or \"proximate cause,\" unless otherwise noted. \"Cause in fact\" refers to the \"but for\" consequences of an actthe physical connection between an act and an injury. \"Legal causation, on the other hand, involves a determination of whether Liability should attach as a matter of law given the existence of cause in fact. This court, in agreement with commentators and other jurisdictions, has observed that \"as to cause in fact, tort and criminal situations are exactly alike.\" Briefing a Case Form Instructions for completing this form: Use this form to answer all the information about the case. Student Name: Case Title History: Facts: Legal Question: Decision: Reasoning: Legal causation, however, is different. Commentators and courts recognize that criminal law and tort serve different purposes and therefore have different principles of legal causation. With crimes, where the consequences of a determination of guilt are more drastic . . ., the wider doctrines of causation currently applied in tort law should not be extended to criminal law. This court has never explicitly addressed whether \"legal cause is the same in both tort and riminal law. But a comparison of Washington criminal and tort cases shows that liability tends to extend further in tort cases. No appellate criminal case in Washington has found legal causation based on negligent acts similar to those in civil cases that were incapable of causing injury directly. For example, in State v. Leech, this court held that an arsonist \"caused\" the death of a fire fighter who responded to the arson fire, despite the fact that the fire fighter may have been negligent in his fire fighting. The arsonist, however, intentionally started the fireclearly an intentional criminal act capable of causing harm in and of itself. Bauer's act of gun ownership, in contrast, is not felonious or criminal. His decision to keep loaded weapons around the house is not, in itself, a crime in this state, either. The most analogous criminal case that we have found is from lowa: State v. Ayers, 478 N.W.2d 606 (Iowa 1991). In that case, Ayers was a firearm vendor convicted of involuntary manslaughter for selling a gun to a minor. The minor accidentally shot and killed his girlfriend a few days later. The court held, \"More is required than appears here to support a showing of proximate cause in a manslaughter case. The missing ingredient is a more direct connection between Ayers and the act which killed the young victim.\" Neither party has identified a Washington case upholding criminal liability on facts like the ones on which the Bauer prosecution is based. This court has found no Washington case upholding such liability, either, where the accused did not actively participate in the immediate physical impetus of harm. In light of the scholarly literature, our case law, and case law from foreign jurisdictions, we hold that \"legal cause in criminal cases differs from, and 1s narrower than, \"legal cause\" in tort cases in Washington. Liability Does Not Attach to Bauer in This Case As discussed above, there is no criminal case in Washington upholding criminal liability based on a negligent act that has such intervening facts as in this case between the original negligence and the final, specific, injurious result. More tellingly, even in analogous civil cases, we have declined to extend liability so far. For example, in Sailor v. Ohlde, this court addressed whether \"the owner of an automobile who leaves the key in the ignition switch [can be civilly] liable for injury or damage caused by a stranger who enters upon private property and steals the automobile.\" We answered the question no. [Several other cases are omitted here] Finally, the Washington tort case most closely analogous to the one at hand, McGrane v. Cline, also supports our holding that Bauer is not liable for third degree assault in this case. In McGrane, a teenage daughter took the parents' firearm from therr home, gave it to a friend, the friend used it to commit a robbery, and he fatally shot a third person during that crime. The Court of Appeals ruled that the parents were not civilly liable for that result. Just as in McGrane, the firearm here was taken, without the owner's permission or knowledge, by a minor child and later used to cause serious harm. No criminal case in Washington has found liability on such attenuated facts as those in this case. Because legal causation in civil cases is broader and more flexible than it is in criminal cases, these civil cases compel the conclusion that legal causation is not satisfied as to Bauer in this case. Conclusion The legislature defined the crime of third degree assault to reach a person who \"with criminal negligence, causes bodily harm to another person by means of a weapon or other instrument or thing likely to produce bodily harm.\" RCW 9A.36.03 1(1)d). Bauer asserts that the State has failed to make a prima facie case that his conduct of leaving guns around his house loaded and accessible to invited children \"caused\" the bodily harm here. We agree. Although causation in fact is the same in criminal and civil cases, legal causation is not. Qur case law suggests that legal causation does not extend as far in criminal cases as it does in tort cases, and even our civil cases do not extend liability as far as the State seeks to do in this case. We therefore reverse the decision of the Court of Appeals. GONZALEZ, J. (dissenting). Douglas Bauer kept multiple loaded guns unsecured throughout his house. These weapons were easily accessible to his girlfriend's minor children, including TC, a nine-year-old boy who frequently visited and sometimes stayed the night. Unsupervised, TC put one of Bauer's handguns into his backpack. Two days later, that gun, still in TC's backpack, discharged in a classroom, seriously injuring one of TC's classmates. Bauer did not notice his handgun was missing until after the shooting. The majority believes that because nine-year-old TC did not have permission to take the weapon and because two days elapsed between the taking and the subsequent shooting, Bauer's carelessness could not, as a matter of law, be the cause of the victim's serious injury. I disagree. The delay in Bauer noticing that his gun was missing is itself evidence of his negligence. Though a jury may well find Bauer's actions to be too attenuated from the victim's injury to impose criminal liability as a matter of fact, whether criminal liability can attach as a matter of law is a policy question for the legislature. The legislature has made this policy judgment in RCW 9A.36.031(1)(d). It is neither unreasonable nor unwise to allow a jury to decide if it was the firearm owner's criminal negligence that caused the handgun to be brought to school, to be accidentally discharged, and to seriously injure the young victim. Since the majority believes otherwise, 1 respectfully dissent. The 1ssue before us is a novel one. As the majority notes, no Washington appellate court has weighed in on the lawful extent of legal cause in the context of the third degree assault statute. But that \"this court has found no Washington case upholding . . . hiability . . . where the accused did not actively participate in the immediate physical impetus of harm is not a compelling argument against whether the legislature intended to criminalize this sort of carelessness. It is well settled that legal causation \"rests on policy considerations as to how far the consequences of defendant's acts should extend. It involves a determination of whether liability should attach as a matter of law given the existence of cause in fact.\" In the context of criminal law, that question is for the legislature, and it has answered it. Given scientific research on the topic, it is clear the legislative purpose of RCW 9A.36.031(1)(d) would be best served by letting a jury decide whether a firearm owner is liable for an unintended shooting that is the result of a young child picking up a carelessly stored handgun. In one study, scientists monitored numerous small groups of 8- to 12yearold boys in a room that had two water pistols concealed in one drawer and an actual handgun concealed in another (Jackman, 1247-48). The researchers limited the study to boys in this age range because they are \"a high-risk group for unintentional fire-arm injury.\" The scientists found that 75 percent of the boys found the handgun within 15 minutes, 63 percent of these boys handled it, and 33 percent of them actually pulled the trigger enough to discharge the weapon. Overall, the \"results suggest that 8- to 12yearold boys cannot be trusted to refrain from handling a handgun if they encounter one outside the immediate supervision of an adult.\" Available at http://pediatrics.aappublications.org/content/107/6/1 247 full. pdf (subscription required). A different study, which measured the association of household firearm storage practices and the risk of unintentional and self-inflicted injuries associated with child or adolescent access to firearms in the home, also supports the conclusion that we should not preclude liability on legal causation grounds. See David C. Grossman et al., Gun Storage Practices and Risk of Youth Suicide and Unintentional Firearm Injuries, 293 JAMA 707, 708-10 (2005). There, researchers found that \"storing household guns as locked, unloaded, or separate from the ammunition [was] associated with significant reductions in the risk of unintentional and self-inflicted firearm injuries and deaths among adolescents and children.\" In other words, and not surprisingly, this survey revealed that guns that were kept loaded, unsecured, and accessible to chil dren were involved in accidents far more frequently than those that were not. Available at http://jama jamanetwork. com/data/Journals/J AMA/4963/J0C32162.pdf. Given both science and common sense, I find the legislature's inclusion of criminal negligence as a proper basis for an assault charge as permitting a jury to determine a handgun owner's liability in situations such as this. The jury would be able to consider all of the relevant circumstances, including the age and maturity of the child, the child's familiarity with firearms, and the precautions the firearm owner took or did not take to determine if the firearm owner's conduct amounts to criminal negligence. What the majonity believes to be the intervening actions and attenuating circumstances in this case are the natural and foreseeable consequences of the very danger that Bauer's careless actions created. TC's picking up the handgun and Bauer's failure to notice are not intervening causes in the ultimate injury. Like the majority, I do not believe \"Bauer's act of gun ownership\" or \"his decision to keep loaded weapons around the house is in itself criminal. But it need not be. Third degree assault predicated on criminal negligence does not require an underlying illegal act or an intentional act but merely criminal negligence that results in bodily harm. RCW 9A.36.031(1)(d). By its plain language, the purpose of the statute is to impose liability when injury is caused by criminal negligence, not criminal intent or felonious action. A defendant can face liability for criminal negligence \"when he or she fails to be aware of a substantial risk that a wrongful act may occur and his or her failure to be aware of such substantial risk constitutes a gross deviation from the standard of care that a reasonable person would exercise in the same situation.\" RCW 9A.08.010(1)(d). TC's actions are not distinct from Bauer's carelessness for legal causation purposes. When Bauer's gun ownership and method of storage is combined with the known presence of an unsupervised nine-year-old boy, especially when coupled with a failure to notice the unsecured weapon was missing, a jury, not a judge, should decide if this created a substantial risk that a wrongful act may occur. Finding that TC's taking the gun without Bauer's permission was an intervening action, as the majority does, tacitly shifis the ultimate responsibility for the victim's injury to a nine-year-old child. Not only do I find this troubling in light of behavioral science, but also I agree with the legislature that \"children of eight and under twelve years of age are presumed to be incapable of committing crime.\" RCW 9A.04.050. Though this presumption may be removed, and 1 do not seek to address the appropriateness of the liability imposed on TC, it is unsettling that TC, as a matter of law, will face more criminal culpability in this situation than Bauer. At its core, this case comes down to considerations of sound policy. Bauer kept a loaded, unsecured handgun in a room that an unsupervised nine- year-old boy could access freely. Bauer also did not notice that this loaded weapon had been taken for two days as TC toted it in his backpack to and from school. Given that both science and common sense strongly suggest that Bauer was in the best position to prevent the imjury to TC's classmate and that his conduct was its primary cause, | would not preclude Bauer's liability on legal causation grounds and would allow a jury to resolve the matter. With these observations, [ respectfully dissent. Questions List all of the facts relevant to deciding whether Douglas Bauer was the factual and legal (proximate) cause of TC's classmate's gunshot wounds. Summarize the majority opinion's arguments that Baver was not the proximate cause of the wounds. Summarize the dissent's arguments that Bauer was the proximate cause of the wounds. In your opinion, who has the stronger arguments, the majority or the dissent? Defend your answer. In your opinion, how important should the studies cited by the dissent be in reaching the court's decision? Defend your answer. In your opinion, was this a crime or a tragic accident? Defend your