Negligent Discharge & Firearm Related Injuries: a Discussion Part Three

This discussion is part three 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 client.

Part ThreeMassachusetts

Massachusetts has some of the strictest gun laws in the United States. Gun owners are required to hold the appropriate license for the firearms they own and purchase and they must pass a firearm safety course before applying for a license. The laws are so strict that the Supreme Court of the United States deemed the Massachusetts gun laws to be unconstitutional in that they did not allow for a legal permanent resident in Massachusetts to obtain a gun permit/license. It was decided that the Second Amendment did not apply to only citizens. Currently the Supreme Court in Massachusetts is deciding a case about an adult who is unable to obtain a gun permit because he had been convicted of gun possession as a juvenile. [Discussed more below].

Gun Discussions

Senator Warren is fighting on Capitol Hill for stricter gun restrictions. On January 18, 2013, she met with Boston Mayor Thomas Menino to discuss gun prevention. According to them, the three major key points in gun prevention are:

1. A ban on assault weapons
2. Fixing the background check system
3. Making gun trafficking a federal crime.

Also of note, Democratic State Rep, David Paul Linsky, suggested the idea of mandating gun insurance for gun owners. We are interested to see where this is going and what this insurance would cover. I would suspect that this insurance would be available to victims of negligent discharge.

Firearms and Children

According to Elizabeth Warren, more than 6,000 children died on account of gun violence in the last two years.

In Massachusetts, findings from WRISS, the Weapon Related Injury Surveillance, found that between 2005 and 2007, 8% of unintentional firearm related injuries were to children less than 14 years of age.

Massachusetts, like New Hampshire, realizes that the availability of weapons to children is a problem and like New Hampshire, Massachusetts has enacted laws regarding the storage of weapons. Massachusetts General Laws Chapter 140 Section 131L states that:

(a) It shall be unlawful to store or keep any firearm, rifle, or shotgun, including but not limited to, large capacity weapons, or machine gun in any place unless such weapon is secured in a locked container or equipped with a tamper-resistant mechanical lock or other safety device, properly engaged so as to render such weapon inoperably by any person other than the owner or other lawfully authorized user.

It further states:

(c) A violation of this section shall be punished, in the case of a rifle or shotgun that is not a large capacity weapon and such weapon was stored or kept in a place where a person under the age of 18 who does not possess a valid firearm identification card issued under section 129B may have access without committing an unforeseeable trespass, by a fine of not less than $1,000 nor more than $10,000 or by imprisonment for not less than two and one half years, nor more than ten years, or by both such fine and imprisonment.

(d) A violation of this section shall be punished in the case of a rifle or shotgun that is a large capacity weapon, firearm, or machine gun was stored or kept in a place where a person under the age of 18 may have access, without committing an unforeseeable trespass, by a fine of not less than $5,000 nor more than $10,000 or by imprisonment for not less than two and one half years not more than ten years, or by both such fine and imprisonment.

Additionally:

(e) A violation of the provisions of this section shall be evidence of wanton or reckless conduct in any criminal or civil proceeding if a person under the age of 18 who was not a trespasser or was a foreseeable trespasser acquired access to a weapon, unless such person possessed a valid firearm identification card issued under section 129B and was permitted by law to possess such weapon, and such access results in the personal injury to or the death of any person.

As can be seen, the penalties for improperly storing a weapon where it can fall into the hands of children are quite steep.

Massachusetts has gone further to ensure that children are kept away from firearms. Massachusetts General Laws Chapter 269 Section 10 prohibits dangerous weapons at schools. It states:

(i) Whoever, not being a law enforcement officer, and notwithstanding any license obtained by him under the provisions of chapter one hundred and forty, carries on his person a firearm as hereinafter defined, loaded or unloaded or other dangerous weapon in any building or on the grounds of any elementary or secondary school, college or university without the written authorization of the board or officer in charge of such elementary or secondary school, college or university, shall be punished by a fine of not more than one thousand dollars or by imprisonment of not more than one year, or both…… Any officer in charge of an elementary school or secondary school, college or university or any faculty member or administrative officer of an elementary or secondary school, college or university failing to report violations of this paragraph shall be guilty of a misdemeanor and punished by a fine of not more than five hundred dollars.

This law also allows the courts to treat any person aged 17 or older who was charged with a violation to be charged as an adult and for children ages 14 through 17, to be charged as an adult at the discretion of the court. This also leads us to a case currently before the Supreme Judicial Court in Massachusetts.

Mirko Chardin was 14 years old when one of his friends was shot and killed while being robbed of a pair of sneakers. After that traumatic event, Mirko began carrying a gun which fell out of his pants in front of a police officer. He was charged with carrying a weapon. Now, fifteen years later, he is unable to obtain a firearm license because of his juvenile record. This case has reached the Supreme Court because one side argues that state laws on juvenile crime are aimed at rehabilitating the youth rather than punishing them and Mr. Chardin has had a clean record otherwise and this law which precludes an adult from obtaining a firearm license because of a juvenile offense. At the time of this blog, the Supreme Judicial Court of Massachusetts had not come to a decision.

Negligent Discharge

To avoid potential injuries from negligent discharge or otherwise, Massachusetts General Laws Chapter 269 Section 12E prohibits the discharge of a firearm within 500 feet of a dwelling or other building in use without expressed permission of the owner(s). However, most negligent discharges do not occur while actively shooting but rather while cleaning or otherwise handling a gun.

According to WRISS, there were 69 unintentional firearm injury reports in 1994. This dropped 59% by 2000 and has averaged 26 injuries per year since. Ninety-two percent of all unintentional firearm injuries occurred among males. The most frequent circumstances resulting in unintentional firearm injury cases were cleaning the gun (15.6%), and playing with the gun (14.3%). Thinking the gun was not loaded, hunting, target/firing practice, dropping the gun, loading and unloading the gun, gun malfunction, handling the gun, and ricochets also made the list.

Safety Devices

Unlike New Hampshire, which has a law providing gun manufacturers and distributors from civil liability, Massachusetts has a law which places liability on any entity responsible for the manufacture, importation or sale of a weapon if a proper safety device is not included. Massachusetts General Laws Chapter 140 Section 131K reads:

Any firearm or large capacity weapon, both as defined in section 121, sold within the commonwealth without a safety device designed to prevent the discharge of such weapon by unauthorized users and approved by the colonel of state police including, but not limited to, mechanical locks or devices designed to recognize and authorize, or otherwise allow the firearm to be discharged only by its owner or authorized user, by solenoid use-limitation devices, key activated or combination trigger or handle locks, radio frequency tags, automated fingerprint identification systems or voice recognition, provided, that such device is commercially available, shall be defective and the sale of such a weapon shall constitute a breach of warranty under section 2-314 of chapter 106 and an unfair or deceptive trade act or practice under section 2 of chapter 93A. Any entity responsible for the manufacture, importation or sale as an inventory item or consumer good, both as defined in section 9-102 of chapter 106, of such a weapon that does not include or incorporate such a device shall be individually and jointly liable to any person who sustains personal injury or property damage resulting from the failure to include or incorporate such a device. If death results from such personal injury, such entities shall be liable in an amount including, but not limited to, that provided under chapter 229. Contributory or comparative negligence shall not be valid defenses to an action brought under this section in conjunction with section 2 of chapter 93A or section 2-314 of chapter 106 or both; provided, however, that nothing herein shall prohibit such liable parties from maintaining an action for indemnification or contribution against each other or against the lawful owner or other authorized user of said weapon. Any disclaimer, limit or waiver of the liability provided under this section shall be void.

No entity responsible for the manufacture, importation or sale of such a weapon shall be liable to any person for injuries caused by the discharge of such weapon that does not include or incorporate a safety device as required under this section if such injuries were: (i) self-inflicted, either intentionally or unintentionally, unless such injuries were self-inflicted by a person less than 18 years of age; (ii) inflicted by the lawful owner or other authorized user of said weapon; (iii) inflicted by any person in the lawful exercise of self-defense; or (iv) inflicted upon a co-conspirator in the commission of a crime.

This section shall not apply to any weapon distributed to an officer of any law enforcement agency or any member of the armed forces of the United States or the organized militia of the commonwealth; provided, however, that such person is authorized to acquire, possess or carry such a weapon for the lawful performance of his official duties; and provided further, that any such weapon so distributed is distributed solely for use in connection with such duties. This section shall not apply to any firearm manufactured in or prior to the year 1899, or to any replica of such a firearm if such replica is not designed or redesigned for using rimfire or conventional centerfire fixed ammunition.