Accidental shooting deaths renew debate of gun law
Effectiveness of rule to prevent access of firearms questioned
Justin Gooden loved playing video games.
After his beloved Xbox 360 was stolen by burglars who ransacked his mother’s home in Houston’s Fifth Ward in December and stole nearly all of their possessions, the 6-year-old was despondent. The next month, Justin, after staying overnight at the apartment of his sister in northwest Houston, wandered into her bedroom looking for an Xbox game. He stumbled upon a box where his sister’s boyfriend kept a 9mm handgun and accidentally shot himself. The boy died hours later at Texas Children’s Hospital.
“I’m not gonna question God, but it just hurts,” said Justin’s mother, Joyel McCardell, in a recent interview.
Justin was one of three children in Texas who died over a five-day span earlier this year after finding a firearm at a home. The day before Justin died on Jan. 28, 4-year-old Kadren Johnson, nicknamed “Shrimp,” found a loaded handgun in the bedroom of his grandmother’s home in Texas City and accidentally shot himself. And on Jan. 24, 3-year-old Jonnie Colon found a shotgun in the bedroom at his family’s home in northeast Fort Worth and unintentionally shot himself in the head.
The deaths have renewed questions about the effectiveness of Texas’ Child Access Prevention law, enacted to serve as a measure to curb the access of children to firearms in the home. The discussion comes amid an emotional national debate over gun control in the wake of the shooting deaths of 17 students and adults at a Parkland, Fla. high school, which prompted Florida’s Republican governor on Friday to sign into law a new set of gun regulations.
Gun control experts say the Texas law dealing with access to firearms in the home is rarely prosecuted and overly broad, and that prosecutors are hesitant to compound tragedy by punishing grieving families. Gun rights advocates argue that the law is strong enough as currently written.
“It’s unfortunate, of course,” said Ed Scruggs, vice chairman of the board of Texas Gun Sense, an organization that says it advocates for common-sense, evidence-based policies to reduce gun injuries and deaths. “Obviously, there’s some pure negligence that’s out there that you’ll hear about and since there’s no consistent prosecution of it, people never even hear about it … so its ability to act as a deterrent is very minimal.”
Texas is one of 27 states, along with Washington, D.C., with a child access prevention (or CAP) law on the books. The misdemeanor charge can be brought if a child under 17 gains access to a
readily dischargeable firearm and a person had failed to secure a gun or left it in a place where the person knew or should have known the child would gain access.
If the negligent person is a member of the child’s family, and the child was killed or seriously injured, an arrest cannot be made until seven days after the offense was committed.
On the spectrum of child access prevention across the country, Texas’ law is on the weaker end, experts say. In the United States, only Massachusetts has a law requiring any person in control of a firearm to keep it locked away or disabled when not being carried.
“One of the weaknesses in these types of laws is they only kick in after (a shooting in the home). They don’t particularly require a method of safe storage,” said Allison Anderman, the managing attorney at the Giffords Law Center to Prevent Gun Violence. “Because of that, the determination whether or not to charge someone with this law is usually after something bad has happened.”
The Harris County District Attorney’s Office said last month that only 31 cases had been filed under the child access prevention statute since 2009, including four so far in 2018. A larger review of Texas Department of Public Safety records by the Austin-American Statesman in 2015 found that authorities had arrested more than 200 people accused of making a firearm accessible to a child since the state’s CAP law was enacted in 1995, with only 61 convictions.
Some say the infrequent use of CAP laws calls into question whether they were written with too much discretion for prosecutors in deciding what constitutes “criminal negligence.” ‘A lot of ambiguity’
Texas’ CAP law accounts for the failure to take steps “a reasonable person would take” to prevent a child’s access to a gun, including placing a firearm in a locked container or temporarily rendering it inoperable by a trigger lock. But it also accounts for a person who left a firearm in a place where he or she knew or “should have known” the child would gain access.
“There’s a lot of ambiguity in those two scenarios,” Anderman said.
Galveston County District Attorney Jack Roady, whose office will determine whether to bring a CAP charge in the case of Kadren, said he does not believe the burden of proof for criminal negligence in child-access cases is too high.
Roady said it’s his job as a prosecutor to assess the exact steps an individual took to store the gun before deciding whether to file charges.
“It’s important to note this: Criminal negligence is the same in this statute as it would be in a criminally negligent homicide,” Roady said. “It’s always fact-intensive. It’s whether or not a person should have been aware of the risk involved, and that can turn regular conduct into criminal conduct.”
Roady acknowledged, though, that some prosecutors may be hesitant to arrest a family member on a CAP charge in light of their crushing loss.
“I suppose in some situations that’s true, but it’s always going to come down to the facts of that particular situation,” he said.
Texas presents a unique challenge for those pushing for more awareness about safe storage of firearms because of the sheer number of registered guns in the state. A 2016 Bureau of Alcohol, Firearms, Tobacco and Explosives report found that Texas ranks at or near the top in just about every statistical category involving firearms licensing and registration. About 10 percent of all registered weapons in the country are registered in Texas.
In the past legislative session, Scruggs of Texas Gun Sense and other advocates worked on a bill that would have applied a small amount of revenue from the state’s right-to-carry fee toward a statewide education and public awareness program around gun safety. Despite some bipartisan support, the bill never made it out of committee.
“That was very frustrating because when you’re talking about laws relating to gun violence prevention, there probably isn’t a more acceptable or larger point of agreement than the fact of we need to be safer with our firearms in the home,” Scruggs said.
Gun rights organizations, however, believe that the state already does more than enough to inform gun owners about safe storage. ‘Punish the culprit’
Alice Tripp, legislative director of the Texas State Rifle Association, said that if advocates want a more robust public campaign, “they can go buy a billboard.” She noted that the National Rifle Association already has a gun safety program for children called “Eddie Eagle,” which teaches children from pre-K through the fourth grade about gun safety.
“We’ve got laws to punish the culprit that made the gun accessible,” Tripp said. “We’ve got all kinds of information ... in the box that the firearm came in. And then we have programs that are available ... to be used in elementary schools that the message is, ‘Stop, don’t touch, leave the area, tell an adult.’ I don’t know what’s left to do, except prosecute.”
Kellye Burke, president of the Texas chapter of Moms Demand Action, a volunteer arm of the nonprofit Everytown for Gun Safety, said parents have the ultimate responsibility to make sure a firearm is secured in the home.
“If I own guns, it is my responsibility to secure them properly and responsibly,” Burke said. “Wherever my kids go, I need to initiate the conversation.”
The decision not to do so haunts Justin Gooden’s mother.
Joyel McCardell said she had no idea that her daughter’s boyfriend, who lived at the apartment where she took Justin, had recently bought a gun for protection after being beaten into a coma months earlier. When a nextdoor neighbor had their door kicked in days before, he loaded bullets into a 9mm handgun, just in case. McCardell hated guns, having lost a close friend to a game of Russian Roulette years ago, even disposing of toy guns that Justin had gotten for Christmas.
“I told (Justin), ‘I don’t ever want y’all to play with these guns because I don’t ever want you to think real guns is something to play with,’” she said.
McCardell said she doesn’t blame her daughter’s boyfriend for having a gun in the house given the circumstances of what happened to him, but she said they never would have been in the apartment had she known. As of last month, Houston police investigators had not yet determined if the boyfriend would be charged with making a firearm available to a child.
“I could feel the pain in him, because (Justin) was like a brother to him,” McCardell said. “I told him, if you had told me the gun was in there I would have never been over there.”