Negligent Discharge & Firearm Related Injuries: A Discussion Part Two

This discussion is part two in a series that I am nicknaming “Monday are Gundays”. Over the next several Mondays, I will continue this discussion. We will discuss negligent discharge, firearm-related injuries and fatalities, firearms and children, and the laws regarding guns, especially in cases of negligent discharge, in both Massachusetts and New Hampshire. We encourage you to post comments. These articles are for informational purposes only and do not represent the views or opinions of the Granite Law Group, its staff, or its clients.

Part Two New Hampshire Firearms in New Hampshire

As the “Live Free or Die” state, New Hampshire has the nation’s most lax gun laws. New Hampshire residents are not required to have a license to carry an unconcealed firearm. A license is only a requirement in order to carry a concealed weapon. Additionally, there is no minimum age for gun possession. New Hampshire also does not have any laws regulating assault weapons or guns in public schools.

Back in late 2011, the Statehouse debated over whether or not colleges, universities and similar institutions would be allowed to prohibit weapons on their campuses. This debate sparked a protest on the campus of Plymouth State University. In early 2012, the House voted to strip colleges of their rights to prohibit guns on their campuses. It did not pass in the Senate.

Other gun laws were up for debate early in 2012. Governor Lynch had threatened to veto them all. While the House passed House Bill 536, the Senate killed the bill. House Bill 536 would have allowed “constitutional carry” – not requiring a license or permit to carry a firearm or would have allowed anyone to have a gun in their home, dwelling or place of business. The most dangerous aspect of this bill was that it included those who otherwise would have been prohibited from carrying a weapon such as those who suffer from mental illness, were convicted of a felony, etc.

In the wake of the tragic shooting of four police officers in Greenland back in April of 2012, it seemed ludacris to approve a bill that would legally allow weapons in the hands of criminals. It was determined that more time and investigation was needed before relaxing any of New Hampshire’s gun laws further. Now in the wake of the Sandy Hook shooting and the discussion of gun control on Capitol Hill, it seems very unlikely that we will see any leniency in local gun laws.

Guns in the Statehouse

Despite the economy and other issues facing lawmakers, guns in New Hampshire still made an appearance in the 2013 session of the Statehouse. The Democrats who won in November’s election proposed to reinstitute a ban on guns and deadly weapons in the chambers and adjacent areas of the statehouse. It was repealed two years ago when Republicans held the majority. It might seem like a trivial issue to some but apparently there has been some concern about weapons in the Statehouse. In March of 2012, a Republican State Rep dropped his gun while in a committee meeting. Thankfully the gun did not discharge but as we can see from last week’s article, negligent discharge is a very real possibility. Additionally, this State Rep had a second gun on his person.

The House rule banning weapons in the chamber had been in place for forty years until 2011 when it was repealed by Republicans. It was replaced by a rule barring members from displaying weapons. The ban on weapons in the Statehouse complex was repealed in 2006 after having been in place for 16 years. It was reinstated in 2007 until it was lifted by Republicans in 2011. It would appear that gun bans and gun laws have been flip flopping depending on which party holds the majority and it is likely that we will continue to see bans and repeals in our future.

Negligent Discharge

Negligent discharge of a firearm is not unheard of in New Hampshire. Even in the last few months there have been a handful of examples of negligent discharge in New Hampshire. In December of 2012, a deputy shot himself in his leg and foot when his weapon accidently discharged, a man shot himself in the hand while cleaning his gun, and a nineteen year old in Manchester tragically died after shooting himself in the head. The teenager was fooling around with the firearm prior to discharge.

While there is no remedy for negligent discharges resulting in injury to the gun user, there is a remedy in civil court for victims who were injured as the result of a negligent discharge from another gun user. In specific cases, such as those resulting in death, criminal charges may also be brought.

As guns are most used for hunting in New Hampshire, there are laws specifically about negligently discharging firearms when hunting.

NH RSA 207:37-a states:

Negligent Discharge of Firearms, Bow and Arrow or Crossbow and Bolt – Any person who shall negligently discharge any firearm, bow and arrow, or crossbow and bolt, while on a hunting trip, in a the field, or while target practicing, in such a manner that the life of any person is endangered or so as to cause damage to the property of another person, shall be guilty of a misdemeanor, and at the discretion of the executive director, the hunting license of such a person may be revoked for a period not to exceed 10 years.

Further, it specifies shooting human beings while hunting.

NH RSA207:37-c states:

Shooting Human Beings While Hunting

1. Any person, while on a hunting trip or in pursuit of wild animals or wild birds or while target practicing, who negligently shoots and wounds any human being, shall be guilty of a misdemeanor.
2. Any person while on a hunting trip, or in pursuit of wild animals or wild birds, or while target practicing, who shoots and causes the death of any human being, may be charged pursuant to the appropriate criminal code statute.

A negligent discharge resulting in death, as can be seen by the statute above, is subject to the criminal code. Surviving victims of a negligent discharge are still entitled to bring a civil suit against the shooter to recover for their injuries, damages, and pain and suffering.

In November 2012, a ten year old boy inadvertently shot a 48 year old man while on a hunting trip. This leads into our next topic which is firearms and children.

Firearms and Children

Clearly children and firearms do not mix. There are hundreds of stories across the nation about children shooting either themselves, a family member or someone else and some cases tragically result in death. We will discuss these national cases in a later blog discussion.

New Hampshire has enacted special statutes concerning firearms and children. NH RSA 650-C:1 discusses the ramifications of negligently storing firearms within the reach of children. It states:

1. Any person who stores or leaves on premises under that person’s control a loaded firearm, and who knows or reasonably should know that a child is likely to gain access to the firearm without the permission of the child’s parent or guardian, is guilty of a violation if a child gains access to a firearm and:
   1. The firearm is used in a reckless or threatening manner;
   2. The firearm is used during the commission of any misdemeanor or felony; or
   3. The firearm is negligently or recklessly discharged.

Further it states:

1. A parent of guardian of a child who is injured or who dies of an accidental shooting shall be prosecuted under this section only in those instances in which the parent or guardian behaved in a grossly negligent manner.

This statute makes parents liable for their children’s reckless behavior with a gun, including school shootings, if the parents are found to have negligently placed the gun in a place a child could access. A parent would not be liable for example if a child broke into a locked gun case and then used the firearm recklessly.

Immunity from Civil Liability

According to NH RSA 508:21, manufacturers, distributors, and firearm dealers are immune to civil liability in the state courts of New Hampshire. That means that a victim would be unable to sue a manufacturer for a faulty or a defective firearm in any of the state courts.