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I was wondering if you could be prosecuted or held liable if a child got a gun out of your car and shot a person. Would it matter if the car was in your driveway or if it was unlocked?

If it was your child or one of their friends and they got the gun from your unlocked car in your garage or driveway, I think you could be successfully prosecuted.

"Secure" means to take steps that 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.

It is an affirmative defense to prosecution under this section that the child's access to the firearm:
was gained by entering property in violation of this code

If a yute gets the gun when he "enters a vehicle or any part of a vehicle with intent to commit any felony or theft" that gives you an affirmative defense. That means the the burden of proof is on you, but it should be easy to prove.

It would matter in front of 12 of your peers.
If a gun was left unsecured you did not take even a reasonable precaution to prevent harm.
It is no different (personal opinion, not legal) than leaving a gun unsecured in your home to which one has access.
How old a child?
The younger the less defense you have IMO.

PappaGun wrote:It is no different (personal opinion, not legal) than leaving a gun unsecured in your home to which one has access.

Very similar. If you have a child at home then you're responsible if they get the gun on your nightstand. Same with your child's friends. But if a teenager commits burglary then they're reposnible for the bad things that happen. That's the way I see it.

Maybe it's not the law but I think the same thing with kitchen knives and cleaning chemicals. You're responsible for the safety of kids who are allowed in the house, but not for criminals and delinquents that don't have consent to be there.

Cobra Medic wrote:

PappaGun wrote:It is no different (personal opinion, not legal) than leaving a gun unsecured in your home to which one has access.

Very similar. If you have a child at home then you're responsible if they get the gun on your nightstand. Same with your child's friends. But if a teenager commits burglary then they're reposnible for the bad things that happen. That's the way I see it.

Maybe it's not the law but I think the same thing with kitchen knives and cleaning chemicals. You're responsible for the safety of kids who are allowed in the house, but not for criminals and delinquents that don't have consent to be there.

I apologize I advance as it is not my intention to hijack this thread, but I am curious about this line of thinking.

The first thing that came to mind was a story a while back. I’m a little vague on the details and I do not recall how it turned out, but the gist of the story is a homeowner had a maid come in every now then to clean up the place. The maid brought their child with them to clean the house. I do not recall if the homeowner knew about the kid or not. At some point the kid finds their way to the homeowner’s bedroom, finds the homeowner’s gun and accidently shoots and kills him/her self.

Obviously the kid is not a criminal and it is unknown if the homeowner knew the maid was brining the kid to the job.

Is it the homeowner’s responsibility? Or is it the maid’s responsibility? If the homeowner knew about the kid on the job…does that shift responsibility back to the homeowner?

Darn good question, pt145ss . Hopefully, someone knowledgeable will answer it.

pt145ss wrote:

Cobra Medic wrote:

PappaGun wrote:It is no different (personal opinion, not legal) than leaving a gun unsecured in your home to which one has access.

Very similar. If you have a child at home then you're responsible if they get the gun on your nightstand. Same with your child's friends. But if a teenager commits burglary then they're reposnible for the bad things that happen. That's the way I see it.

Maybe it's not the law but I think the same thing with kitchen knives and cleaning chemicals. You're responsible for the safety of kids who are allowed in the house, but not for criminals and delinquents that don't have consent to be there.

I apologize I advance as it is not my intention to hijack this thread, but I am curious about this line of thinking.

The first thing that came to mind was a story a while back. I’m a little vague on the details and I do not recall how it turned out, but the gist of the story is a homeowner had a maid come in every now then to clean up the place. The maid brought their child with them to clean the house. I do not recall if the homeowner knew about the kid or not. At some point the kid finds their way to the homeowner’s bedroom, finds the homeowner’s gun and accidently shoots and kills him/her self.

Obviously the kid is not a criminal and it is unknown if the homeowner knew the maid was brining the kid to the job.

Is it the homeowner’s responsibility? Or is it the maid’s responsibility? If the homeowner knew about the kid on the job…does that shift responsibility back to the homeowner?

IANAL but depending on the terms and conditions of the contract of employment for the maid would determine if the homeowner is liable. Was the maid supposed to be inside whatever the gun was contained in (locked or not)? Did the homeowner give consent for the child to be in the home, unattended and obviously going through his personal things? In my line of work, if I brought my child (if I had one) to work without the knowledge and consent of my employer, left the child unattended long enough for them to stick their hand in a biohazardous instrument and contract a disease from contaminated sample, then my employer would not be liable since I violated the terms of my employment, and I would face termination along with the child’s medical expenses.

I believe it would be a defense to prosecution if the homeowner did not know of the child's presence, and that the mother was not supervising him at the time of the accident, which is negligent on her part since it was a foreign location with unknown dangers, especially since he was rummaging through the homeowners things. What if the child had gotten a hold of a 12" chef's knife tripped and fell on it impaling himself from bow to stern, would the homeowner be liable? I think not.

Again IANAL, it was a tragic accident, but there were several other elements of negligence on the part of the mother that contributed to the child’s death than the negligence of the homeowner.

Postby AndyC » Fri Oct 15, 2010 1:49 am
A weapon should be either under your immediate control or secured - there's no in-between in my mind. Anyone who leaves one lying around unsecured (hidden or not) where anyone else could stumble across it and pull the trigger can only blame themselves if something bad happens.

AndyC wrote:A weapon should be either under your immediate control or secured - there's no in-between in my mind. Anyone who leaves one lying around unsecured (hidden or not) where anyone else could stumble across it and pull the trigger can only blame themselves if something bad happens.

Once again, when Andy speaks we are well-advised to listen.

Whether or not they could be criminally-charged, I don't know.

Of course they could be criminally-charged, Andy. The real question is whether or not they would be convicted. I certainly would not be bold enough to answer this question, which would mean predicting the actions of the cops, the DA, perhaps a grand jury, a judge and a jury. I would say, however, as an unadvised personal opinion, limited to the facts given, I would prefer to prosecute this case rather than defend it.

AndyC wrote:A weapon should be either under your immediate control or secured - there's no in-between in my mind. Anyone who leaves one lying around unsecured (hidden or not) where anyone else could stumble across it and pull the trigger can only blame themselves if something bad happens.

Whether or not they could be criminally-charged, I don't know.

I’m not trying to be argumentative and I agree with the statement in general and it’s intent. However, as stated it seems fairly draconian and very black and white. The fact is that we do not live in a black and white world. I think that we (gun owners) do have a responsibility, to a “reasonable” degree, to secure our firearms and safeguard from normal coming and goings of family and friends.

Because the statement, to a large degree, is extreme, I’m going to use an extreme analogy.

Imagine a scenario where you are in a limited liability partnership business. Your business partner, unknowingly to you, is doing something illegal. During the investigation, a warrant is executed on your private residence where the investigators believe you may have business paperwork in a safe that is relevant to their investigation. While going through the safe, where you also secure your firearm, the rookie investigator mishandles the firearm and accidently/negligently shoots him/her self.

In this extreme scenario, someone, who by the way had a legal right to be there, was able to “stumble” across your firearm and pull the trigger. On the face value of the statement, you should be held responsible for the shooting. This does not make sense to me.

Would it be fair to say that this scenario is outside the normal coming and goings in the household? Is it reasonable to say that the gun owner took reasonable steps to safeguard the firearm from misuse under normal conditions and if so, should the gun owner be held responsible?

Let’s apply this to the maid and her child scenario. The gun owner has no children of their own. Is it reasonable to say that simply having the firearm in a nightstand is secure from the normal coming and goings in the house…after all…there are no curious children to be weary of? On face value, the statement you made would say that the gun owner is responsible because someone, a child in the case, was able to stumble across the firearm and pull the trigger. What if the maid had stumbled across the firearm and shot herself…does that shift the blame any…after all she is a reasonable adult with reasonable faculties?

I would also like to point out that on face value, the statement does not leave room for the gun owner in a burglary situation.

pt145ss wrote: Is it reasonable to say that the gun owner took reasonable steps to safeguard the firearm from misuse under normal conditions....

You have put your finger right on the ultimate question a jury would be asked to answer, pt145ss, in somewhat different terms, if the case got through all the individuals and offices I mentioned in my earlier post. That is, did the gun owner, or someone not the gun owner, provide adequate security under the circumstances? So far in this thread we have had more than one set of circumstances laid out. The same jury might answer "Yes" as to one situation, and might answer "No" in another. Likewise, given the difference in the burden of proof in a civil trial and a criminal trial, the answer might differ if there were both. We can sit here at our computers and endlessly generate hypothetical situations, but no matter what the situation might be, the ultimate question remains the same.

If we look at the various scenarios posed here, we are reminded that the scenarios are infinite in number, and there is simply no one answer which fits all. We are always well-advised to keep in mind that even in Texas one cannot depend on having a jury made up of persons who understand guns, gun ownership, and home security depending on a handy handgun. My right to have a jury of my peers does not mean that I have a right to have a jury composed of CHL holders.

The moral of this story, I would humbly suggest, is why put yourself in this position, if a gunbox, trigger lock, or one or more additional relatively inexpensive modes of additional security could reasonably have been used?

One way to look at this is to take the irrelevant gun emotions out of the equation and think about a swimming pool.

If your child is playing at your house and drowns in the pool, that's one level of responsibility for the death.

If your maid brings their child to your house without your knowledge, and the child drowns in the pool, I think you have a much lower level of responsibility for the death.

If you go out of town, and a group of teenagers jumps your locked fence, and one of them drowns in your pool, I don't think you have any responsibility for the death. Some evil person might try to make the attractive nuisance argument, but if you have a locked fence, the trespassers (or their negligent parents) are the ones 100% responsible.

weapon should be either under your immediate control or secured - there's no in-between in my mind. Anyone who leaves one lying around unsecured (hidden or not) where anyone else could stumble across it and pull the trigger can only blame themselves if something bad happens.

Whether or not they could be criminally-charged, I don't know.

Thanks Andy

It appears to me that Bart's answer is the best so far. I know an LEO that keeps his carry weapon holstered but visible on a shelf, even when company is present and kids are running around. Would you say it is under his control? Do you LEOs have a special lock box for your weapon when you are at home? When off duty, not at home, and not carrying? If carrying away from home but off duty out of uniform, but with extra weapons at home---locked up?