Legislatures and courts these days are devoting lots of energy to what parents can and can’t regulate in their households and who is “responsible.” Florida just passed a law making it a crime for parents to seek treatment for transgender kids. For that offense the state will enter your homestead and perhaps take your child. But not that long ago mandatory masks in schools and/or vaccination of children was an abominable invasion of parental rights.

              Those are family decision cases. Does the family decide these matters, in contrast to a state official, a judge or the child himself. In 2007 a Washington state court ruled that a 14 year old adherent to Jehovah’s Witnesses could refuse blood transfusions to treat leukemia even though his parents wanted the treatment. Dennis Linderberg died within hours of the court’s decision. The Court decided it was the child’s right.

              Then there are the responsibility decisions. Most states have some form of civil law (non criminal) that limits liability of parents for the conduct of their children. In recent years some of those laws have been relaxed to impose liability where the child’s bad conduct takes place on or affects school property. A recent Michigan criminal case presents a variant on this theme. James and Jennifer Crumbley are the parents of 15-year-old, EC. The facts adduced in a Michigan Court of Appeals case indicate that EC was having episodes of psychosis. The Crumbleys were an intact family. EC seems to have made both parents and his best friend aware of his hallucinations. Messages between the parents indicate they were aware the child was medicated and drinking alcohol at the same time. Messages to the friend show he had access to his father’s .22 caliber handgun. Despite the open awareness of parents and child of bizarre conduct, no one sought mental health support for EC. He kept a journal in which he made reference to shooting up his school and lamented his parents’ failure to get him any mental help.

              On November 26, 2021, James Crumbley brought EC with him as he shopped for and acquired a 9mm handgun. The gun came with both a cable and trigger lock. Father signed documents that the gun was to be his.  Later that day EC posted photos of his father’s new weapon. The Instagram post referred to the pictured weapon as “my new baby” and invited readers to forward any questions. One day later, EC’s mom took the child to a gun range to try out the new pistol. Both returned from the range and posted on social media. Mother indicates that this was EC’s “Christmas present” and that EC essentially taught her how to shoot that day. The parents had access to EC’s Instagram account although it is not certain they saw his posting of November 27.

              Two days later EC’s mom was searching the web to read about depression. Later that morning EC was observed in school looking at photos of ammunition. School officials were notified by the classroom teacher. The school left a message with EC’s mom that they were concerned about the incident. The response of the mother was to text EC. In those texts, both mother and son seemingly mocked the school with Jennifer Crumbley going to far as to ask if EC had shown the school administrator his new gun while adding that “You need to learn how not to get caught.”

              On November 30, 2021, EC came to school with the 9mm. While taking a math test at 8:30 that morning, the teacher noticed that the work paper illustrated a handgun, the words “Help me,” “My life is useless” and “Blood everywhere.” Again, phone messages were sent to administration. The parents were summoned and their messages to each other indicate that they were now quite concerned. Jennifer got to the school by 9:45am. There was a 15 minute meeting which the school official describe as bizarre in that mother basically did not touch or directly communicate with her son. No one checked the child’s backpack. At the parents urging a decision was made he could remain for the day and both parents left at 10:45. The school had recommended the child go home with them. The parents declined and mother was texting EC to see how he was doing as late as 12:42pm. Within 10 minutes of signing off with his mother with the words “I love you” EC went to the bathroom, retrieved his 9mm and killed 4 fellow Oxford High students and wounded 6 others plus a teacher. At 12:58 pm Jennifer Crumbley received an alert about a shooting at Oxford High. She instantly began to scream. Sixteen minutes had elapsed since her son professed his love.

              The parents were charged with four counts of involuntary manslaughter, meaning they knew or had reason to know the victims would be shot. They moved to dismiss the charges on the basis that they had not, in any way “caused” the deaths.

              The court notes two definitions of causation. As to causation in fact, the court decides this is easy.

“On the basis of the evidence presented at the preliminary exam, a reasonable fact-finder could conclude that EC would not have been able to …kill four students but for defendants’ decision to purchase their mentally disturbed son a handgun, their failure to properly secure the gun, and most importantly, their refusal to remove EC from school when he made overt threats to hurt other people. “But for” defendants’ informed decision to leave EC at school, these murders would not have occurred that day…”

              On the matter of proximate cause, the appeals court accepts the general proposition that generally a person cannot expect that another would intentionally commit a violent felony. It then adds, however, that this is a nuanced definition; that it is not necessary for a person to say: “I’ll be heading to school to kill today” in order for a person’s parent to be liable. Of particular import to the appellate court was that knowing what they did when they arrived at the school and saw the “life is useless” and “blood everywhere” writings, they insisted the child remain in school, yet did nothing to assure themselves or anyone that the guns were safely at home and out of EC’s reach. In this opinion the court indicates this evidence is strong enough for a jury to hear the case and decide if the parents failure to take any precautionary action was a crime. Citing an Arizona case, the Court holds that if you engage in or suborn conduct that creates or enhances a foreseeable risk, you may be criminally liable. State v. Pesquiera, 333 P.3d 797 (Az. App. 2014). While parents ordinarily would have no reason to expect any child to commit a mass shooting, the facts of this case are by no means ordinary.

              Note well, the Crumbleys were an intact family, at least until their son and his 9mm were captured. We have 123 million families in America and a reported 400 million guns; 3.25 per household. So, the Crumbleys do not live in isolation. And if you ask anyone who has practiced family law for a while, erratic behavior is common in households of any stripe but divorced and separated households especially. The appellate court states that criminal conduct is not expected in any household; until the facts clearly demonstrate that it should be. Here we have a father who buys a gun for a 14 year old who has delusions and a mother who takes the kid to the range so he can teach her how to handle a 9mm.  When the child is observed with ammo photos at school his mother mocks him for getting caught and when he starts filling out a math test with pictures of guns and references to “blood everywhere”, his parents respond: “He can stay; he’s just acting out.”

              Wherever you come down on the 2nd Amendment, the corollary question is: “Who should be criminally or civilly liable when these events do occur in a world where there were 200 school shootings in 2022?” These are public policy questions. Now a personal liability law question: Your co-parent suggests that this Christmas your 14,15,16 year old should have a gun of his own. Could your answer someday put your name at the back end of “Commonwealth of Pennsylvania v. ______” or a wrongful death claim that could take your house and every dime not in a qualified retirement plan?  That’s where the Crumbleys stand. A decade ago, the subject would have been: “Are you liable if your kid throws eggs at the neighbors’ house?” Today the stakes are far greater as we grapple with children who seem highly stressed. While household gun ownership as a percentage has declined, the number of guns per household and their lethality have increased.

The case is below. It and the issues surrounding it are scarcely over.