¶39 (dissenting) — Douglas Bauer kept multiple loaded guns unsecured throughout his house. These weapons were easily accessible to his girlfriend’s minor children, including TC, a nine-year-old boy who frequently visited and sometimes stayed the night. Unsupervised, TC put one of Bauer’s handguns into his backpack. Two days later, that gun, still in TC’s backpack, discharged in a classroom, seriously injuring one of TC’s classmates. Bauer did not notice his handgun was missing until after the shooting. The majority believes that because nine-year-old TC did not have permission to take the weapon and because two days elapsed between the taking and the subsequent shooting, Bauer’s carelessness could not, as a matter of law, be the cause of the victim’s serious injury. See majority at 942, 946. I disagree. The delay in Bauer noticing that his gun was missing is itself evidence of his negligence. Though a jury may well find Bauer’s actions *947to be too attenuated from the victim’s injury to impose criminal liability as a matter of fact, whether criminal liability can attach as a matter of law is a policy question for the legislature. The legislature has made this policy judgment in RCW 9A.36.031(l)(d). It is neither unreasonable nor unwise to allow a jury to decide if it was the firearm owner’s criminal negligence that caused the handgun to be brought to school, to be accidentally discharged, and to seriously injure the young victim. Since the majority believes otherwise, I respectfully dissent.
¶40 The issue before us is a novel one. As the majority notes, no Washington appellate court has weighed in on the lawful extent of legal cause in the context of the third degree assault statute. Id. at 938-40. But that “[t]his court has found no Washington case upholding . . . liability . . . where the accused did not actively participate in the immediate physical impetus of harm” is not a compelling argument against whether the legislature intended to criminalize this sort of carelessness. Id. at 940. It is well settled that legal causation “rests on policy considerations as to how far the consequences of defendant’s acts should extend. It involves a determination of whether liability should attach as a matter of law given the existence of cause in fact.” Hartley v. State, 103 Wn.2d 768, 779, 698 P.2d 77 (1985). In the context of criminal law, that question is for the legislature, and it has answered it.
¶41 Given scientific research on the topic, it is clear the legislative purpose of RCW 9A.36.031(1)(d) would be best served by letting a jury decide whether a firearm owner is liable for an unintended shooting that is the result of a young child picking up a carelessly stored handgun. In one study, scientists monitored numerous small groups of 8- to 12-year-old boys in a room that had two water pistols concealed in one drawer and an actual handgun concealed in another. Geoffrey A. Jackman et al., Seeing Is Believing: What Do Boys Do When They Find a Real Gun?, 107 *948Pediatrics 1247, 1247-48 (2001).13 The researchers limited the study to boys in this age range because they are “a high-risk group for unintentional firearm injury.” Id. at 1248. The scientists found that 75 percent of the boys found the handgun within 15 minutes, 63 percent of these boys handled it, and 33 percent of them actually pulled the trigger enough to discharge the weapon. Id. Overall, the “results suggest that 8- to 12-year-old boys cannot be trusted to refrain from handling a handgun if they encounter one outside the immediate supervision of an adult.” Id. at 1250.
¶42 A different study, which measured the association of household firearm storage practices and the risk of unintentional and self-inflicted injuries associated with child or adolescent access to firearms in the home, also supports the conclusion that we should not preclude liability on legal causation grounds. See David C. Grossman et al., Gun Storage Practices and Risk of Youth Suicide and Unintentional Firearm Injuries, 293 JAMA 707, 708-10 (2005).14 There, researchers found that “storing household guns as locked, unloaded, or separate from the ammunition [was] associated with significant reductions in the risk of unintentional and self-inflicted firearm injuries and deaths among adolescents and children.” Id. at 714. In other words, and not surprisingly, this survey revealed that guns that were kept loaded, unsecured, and accessible to children were involved in accidents far more frequently than those that were not. Id.
¶43 Given both science and common sense, I find the legislature’s inclusion of criminal negligence as a proper basis for an assault charge as permitting a jury to determine a handgun owner’s liability in situations such as this. The jury would be able to consider all of the relevant *949circumstances, including the age and maturity of the child, the child’s familiarity with firearms, and the precautions the firearm owner took or did not take, to determine if the firearm owner’s conduct amounts to criminal negligence. What the majority believes to be the intervening actions and attenuating circumstances in this case are the natural and foreseeable consequences of the very danger that Bauer’s careless actions created.
¶44 TC’s picking up the handgun and Bauer’s failure to notice are not intervening causes in the ultimate injury. Like the majority, I do not believe “Bauer’s act of gun ownership” or “[h]is decision to keep loaded weapons around the house” is in itself criminal. See majority at 939. But it need not be. Third degree assault predicated on criminal negligence does not require an underlying illegal act or an intentional act but merely criminal negligence that results in bodily harm. RCW 9A.36.031(1)(d). By its plain language, the purpose of the statute is to impose liability when injury is caused by criminal negligence, not criminal intent or felonious action. Id. A defendant can face liability for criminal negligence “when he or she fails to be aware of a substantial risk that a wrongful act may occur and his or her failure to be aware of such substantial risk constitutes a gross deviation from the standard of care that a reasonable person would exercise in the same situation.” RCW 9A.08.010(l)(d). TC’s actions are not distinct from Bauer’s carelessness for legal causation purposes. When Bauer’s gun ownership and method of storage is combined with the known presence of an unsupervised nine-year-old boy, especially when coupled with a failure to notice the unsecured weapon was missing, a jury, not a judge, should decide if this created a substantial risk that a wrongful act may occur.
¶45 Finding that TC’s taking the gun without Bauer’s permission was an intervening action, as the majority does, tacitly shifts the ultimate responsibility for the victim’s injury to a nine-year-old child. Not only do I find this *950troubling in light of behavioral science, but also I agree with the legislature that “[c]hildren of eight and under twelve years of age are presumed to be incapable of committing crime.” RCW 9A.04.050. Though this presumption may be removed, see id., and I do not seek to address the appropriateness of the liability imposed on TC, it is unsettling that TC, as a matter of law, will face more criminal culpability in this situation than Bauer.
¶46 At its core, this case comes down to considerations of sound policy. Bauer kept a loaded, unsecured handgun in a room that an unsupervised nine-year-old boy could access freely. Bauer also did not notice that this loaded weapon had been taken for two days as TC toted it in his backpack to and from school. Given that both science and common sense strongly suggest that Bauer was in the best position to prevent the injury to TC’s classmate and that his conduct was its primary cause, I would not preclude Bauer’s liability on legal causation grounds and would allow a jury to resolve the matter.
¶47 With these observations, I respectfully dissent.
Fairhurst and Stephens, JJ., concur with González, J.Http://pediatrics.aappublications.org/content/107/6/1247.full.pdf (subscription required).
Http://jama.jamanetwork.com/data/Journals/JAMA/4963/JOC32162.pdf.