State v. Bauer

Bridgewater, J.

¶45 * (dissenting) — The majority upholds the trial court’s denial of Bauer’s Knapstad motion to dismiss the charge against him. State v. Knapstad, 107 Wn.2d 346, 729 P.2d 48 (1986). I do not downplay the hazard to others by keeping loaded firearms around children or the damage done to the injured victim, another child. But even in the face of tragedy, this is a case involving potential criminal liability and imprisonment. As such, we are bound to strictly construe the law, not to stretch it to fit the exigencies of the situation. Because the majority impermissibly extends the law of criminal negligence and criminal liability for the acts of another, I respectfully dissent.

¶46 The undisputed facts, based upon the police reports, center upon a theft of a loaded firearm from Bauer’s residence. T.C., a nine-year-old child of Bauer’s female friend, committed theft of a firearm, a class B felony,14 during a weekend visit with his mother where he slept in a room where loaded firearms were kept. T.C. and his sisters had been told never to touch any of the firearms because they were all loaded. T.C. stole the gun and took it to school some days later where, some 20 miles from the Bauer residence, the gun accidentally discharged, injuring one of T.C.’s classmates.

¶47 The State charged Bauer with third degree assault under RCW 9A.36.031(l)(d). The State conceded at oral argument that the legislature’s statute regarding liability *83for the acts of another, RCW 9A.08.020,15 was not applicable to this charge, arguing that culpability for criminal negligence under the third degree assault statute is an additional method by which criminal liability for the acts of another could be imposed. The majority accepts this argument. I disagree.

I. Statutory Interpretation

¶48 We review questions of statutory interpretation de novo. State v. Jacobs, 154 Wn.2d 596, 600, 115 P.3d 281 (2005). When interpreting a statute, we seek to ascertain the legislature’s intent. Jacobs, 154 Wn.2d at 600. Where a statute’s meaning is plain on its face, we must give effect to that meaning as expressing the legislature’s intent. Jacobs, 154 Wn.2d at 600. We determine the statute’s plain meaning from the ordinary meaning of its language, as well as from the statute’s general context, related provisions, and the statutory scheme as a whole. Jacobs, 154 Wn.2d at 600.

¶49 Furthermore, we must strictly construe statutes involving a deprivation of liberty. In re Det. of Hawkins, 169 Wn.2d 796, 801, 238 P.3d 1175 (2010). “Strict construction requires that, ‘given a choice between a narrow, restrictive *84construction and a broad, more liberal interpretation, we must choose the first option.’ ” Hawkins, 169 Wn.2d at 801 (quoting Pac. Nw. Annual Conf. of United Methodist Church v. Walla Walla County, 82 Wn.2d 138, 141, 508 P.2d 1361 (1973)).

¶50 Finally, “[w]e interpret statutes in pari materia, considering all statutes on the same subject, taking into account all that the legislature has said on the subject, and attempting to create a unified whole.” Diaz v. State, 175 Wn.2d 457, 466, 285 P.3d 873 (2012). Under the in pari materia rule, “when a specific statute punishes the same conduct punished under a general statute, they are concurrent statutes and the State must charge only under the specific statute.” State v. Presba, 131 Wn. App. 47, 52, 126 P.3d 1280 (2005).

¶51 Here, the State charged Bauer for a third degree assault committed by T.C. RCW 9A.36.031(l)(d) generally imposes liability for third degree assault, but the legislature specifically imposed liability for acts of another under RCW 9A.08.020. Thus, if the State were to have charged Bauer for the assault committed by T.C., it should have charged him under RCW 9A.08.020.

¶52 But I would further hold that even RCW 9A.08.020 does not impose liability for T.C.’s acts under the facts of this case. RCW 9A.08.020(2)(a) generally provides that a person is criminally liable when he “causes” an innocent agent or irresponsible person to commit a crime. As our Supreme Court has observed, “causes” is an active verb requiring an affirmative act. State v. Chester, 133 Wn.2d 15, 22, 940 P.2d 1374 (1997).16 This is consistent with RCW 9A.08.020’s definition of accomplice liability, which consists *85entirely of active verbs. 17 Finally, this is consistent with statutes in which the legislature has included liability for the acts of another within the crime’s definition. For example, our Supreme Court has held that Washington’s stalking statute, through its usage of a definition of “harassment” that included the phrase “course of conduct,” encompassed liability for “directing a third party to harass the victim.” State v. Becklin, 163 Wn.2d 519, 526-29, 182 P.3d 944 (2008) (emphasis added). Likewise, Washington’s riot statute18 requires active participation in a riot for liability for the acts of another to attach. State v. Montejano, 147 Wn. App. 696, 700-01, 703, 196 P.3d 1083 (2008). Thus, it is clear, whether through RCW 9A.08.020 or crimes defined as including such liability for the acts of another, our legislature knows how to impose such liability and has chosen to require some form of affirmative action of causing or participating in the other person’s crime.

¶53 Despite these manifestations of legislative intent, the majority interprets the law as imposing criminal liability on Bauer under a theory that he negligently failed to act to secure his loaded firearms. Under the majority’s interpretation, though, the following scenarios could have potentially subjected a person to being charged with third degree assault: (1) a child stealing a butcher knife from a cutting block in the kitchen, taking it to school, and accidentally *86cutting a classmate and (2) the person allowing a party for teenagers at his house, the teenagers covertly drinking liquor from the person’s supply, and one of the teenagers subsequently assaulting someone while intoxicated. But such a theory of liability — whether in the hypotheticals or as charged in this case — does not fit within the extensive framework or examples provided by the legislature, and neither the State nor the majority provide a single case in which Washington courts have found a defendant criminally liable for another’s acts based on the defendant’s failure to act. The majority’s interpretation impermissibly extends this state’s law of criminal negligence and criminal liability for the acts of another.

¶54 I further observe that RCW 9A.08.020(2)(b) provides that a person is criminally liable for the acts of another when “[h]e or she is made accountable for the conduct of such other person ... by the law defining the crime.” Thus, it might be argued that the third degree assault statute falls within RCW 9A.08.020(2)(b) because the assault statute makes Bauer liable for T.C.’s acts under a theory of criminal negligence and proximate cause.

¶55 But such an interpretation of the third degree assault statute would be incorrect. As I discuss above, the legislature plainly knows how to make a person liable for the acts of another in statutes defining crimes, such as the rioting and stalking statutes. Liability for the acts of another is not express in the third degree assault statute.

¶56 Furthermore, concluding that the third degree assault statute implicitly encompasses such liability, as urged by the State and the majority, would violate the statutory interpretation canons of noscitur a sociis and ejusdem generis. Under the canon of noscitur a sociis, we must interpret statutory terms in light of other terms with which they are associated. State v. Budik, 173 Wn.2d 727, 735-36, 272 P.3d 816 (2012) (under noscitur a sociis, affirmative act requirement of five statutory provisions defining crime of rendering criminal assistance created an inference that *87remaining provisions also required an affirmative act). Under the canon of ejusdem generis, where there is a “specific, specific, general” pattern, general provisions must conform to the specific examples. See Bowie v. Dep’t of Revenue, 171 Wn.2d 1, 12, 248 P.3d 504 (2011). Here, the legislature has given us a list of criteria for imposing criminal liability on someone for the acts of another and the majority’s criminal negligence and proximate cause theory simply does not fit within the extensive framework or examples enumerated by the legislature in RCW 9A.08.020. Those acts that impose liability for the acts of others are affirmative acts causing an innocent or irresponsible person to commit the crime or affirmatively acting as an accomplice to the crime itself. See RCW 9A.08.020(2)(a), (c). Applying the majority’s theory of criminal negligence— which requires no affirmative act — under RCW 9A.08-.020(2)(b)’s general provisions would contradict the specific provisions of RCW 9A.08.020(2)(a) and (c) and, thus, violate noscitur a sociis and ejusdem generis. Accordingly, interpreting RCW 9A.08.020(2)(b) and the third degree assault statute to impose liability for the acts of another in this case would be improper.

¶57 Thus, I would strictly construe RCW 9A.08.020 to require an affirmative act causing the crime before imposing liability for the acts of another. And, as I discuss above, the third degree assault charge against Bauer is based not on an affirmative act but a negligent failure to act by failing to secure his loaded firearms. Accordingly, because RCW 9A.08.02019 does not encompass such a theory of liability, I would hold that the trial court erred in denying Bauer’s Knapstad motion to dismiss the third degree assault charge.

*88II. Mental State and Legal Causation

¶58 In the alternative, I also address the majority’s view that the third degree assault statute imposes criminal liability for the acts of another based on a theory of criminal negligence and proximate cause. Even under the majority’s view, I would hold that the State’s alleged facts fail to demonstrate the mental state statutorily required to commit this crime or the legal causation necessary under the majority’s view.

¶59 First, a person commits third degree assault when he, “[w]ith criminal negligence, causes bodily harm to another person by means of a weapon or other instrument or thing likely to produce bodily harm.” RCW 9A.36.031(l)(d) (emphasis added). RCW 9A.08.010(l)(d), which defines “criminal negligence,” provides:

A person is criminally negligent or acts with 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.

Thus, under RCW 9A.36.031(l)(d), the State must prove that Bauer was oblivious to a “substantial risk” that a wrongful act might occur when the risk would have been blindingly obvious to a reasonable person.

¶60 Nothing in these facts demonstrates the required mental state. T.C. had not expressed any fascination with firearms; any fear, such that he felt he needed a firearm; or any proclivity to steal firearms before, without warning, stealing one of Bauer’s firearms. In short, Bauer had expressly warned T.C. not to touch the firearms, and T.C. exhibited no previous signs of disobeying this warning. All the State demonstrates under these facts is the general notion that a child — or anyone — might commit an unexpected criminal act. But such an amorphous fear is insuf*89ficient to demonstrate a substantial risk of a wrongful act that would have been obvious to a reasonable person.

¶61 Furthermore, the majority concludes that we need not address the issue of legal causation — that is, “a determination of whether liability should attach as a matter of law” and a necessary component of proximate cause— because the legislature and Washington courts have provided “guidance” in this case. Hartley v. State, 103 Wn.2d 768, 779, 698 P.2d 77 (1985); majority at 72. Although Washington courts have held that the term “causes” in some criminal statutes encompasses the concept of proximate cause, the majority admits that whether a person may be criminally liable for the acts of another under the third degree assault statute is an issue of first impression in this state. Majority at 72. Moreover, neither the State nor the majority cites to a single case in which the statutory term “causes” has been employed to extend criminal liability for the acts of another. Finally, legal causation is a question of law for the courts, not the jury. Tae Kim v. Budget Rent A Car Sys., Inc., 143 Wn.2d 190, 204, 15 P.3d 1283 (2001). Because legal causation is a question of law “dependent on ‘mixed considerations of logic, common sense, justice, policy, and precedent’ ” properly resolved only by this court, we must address it. Hartley, 103 Wn.2d at 779 (quoting King v. City of Seattle, 84 Wn.2d 239, 250, 525 P.2d 228 (1974)).

¶62 I begin from the position that Washington law does not criminalize keeping a loaded firearm in one’s home. Furthermore, the United States Supreme Court has held that the Second Amendment protects, at minimum, an individual’s “right to keep and bear arms ... for self-defense within the home.” McDonald v. City of Chicago, 561 U.S. 742, 130 S. Ct. 3020, 3044, 177 L. Ed. 2d 894 (2010). Thus, as a matter of policy, the majority’s approach would extend criminal liability to Bauer’s otherwise lawful and constitutionally protected act of keeping loaded firearms within his home.

¶63 Moreover, the majority’s approach runs contrary to Washington precedent on liability for the acts of another. In *90civil negligence cases, the concepts of duty and legal causation are “linked to policy considerations.” Hartley, 103 Wn.2d at 779. Thus, whether a duty exists, like legal causation, is a question of law for this court. Degel v. Majestic Mobile Manor, Inc., 129 Wn.2d 43, 48, 914 P.2d 728 (1996). Because duty and legal causation are “intertwined,” discussion of whether a legal duty exists under the circumstances is helpful in addressing whether legal causation also exists. See Hartley, 103 Wn.2d at 779-80; Donaldson v. City of Seattle, 65 Wn. App. 661, 669 n.14, 831 P.2d 1098 (1992).

¶64 The general rule at common law is that a private person does not have a duty to protect others from the criminal acts of third parties. Tae Kim, 143 Wn.2d at 195. Division One of this court has considered whether Washington law imposes a specific duty to secure firearms within the home from theft and subsequent use in criminal acts. In McGrane v. Cline, 94 Wn. App. 925, 927, 973 P.2d 1092, review denied, 138 Wn.2d 1018 (1999), the Clines’ 16-year-old daughter, without her parents’ permission, invited young men over while her parents were away. Either the Clines’ daughter gave away or one of the young men stole an unsecured firearm from the residence. McGrane, 94 Wn. App. at 927. The young man subsequently used the firearm to kill McGrane during a robbery; her estate sued the Clines for breach of an alleged duty to the general public to secure the firearm. McGrane, 94 Wn. App. at 927-28. In declining to impose such a duty, Division One reasoned:

[T]here are too many issues of legitimate public debate concerning the private ownership and storage of firearms for this court to impose potential liability upon firearm owners based solely upon factors of ownership, theft, and subsequent criminal use of a firearm. We believe that the proper arena to resolve issues of such competing societal interests is legislative rather than judicial.

*91McGrane, 94 Wn. App. at 929. Like Division One’s approach in McGrane, I would leave it to the legislature to resolve the numerous competing rights, realities, interests, and issues of public debate by imposing criminal liability, if any, for T.C.’s theft and criminal use of Bauer’s firearm.

¶65 Moreover, Division One has also addressed the question of whether “civil liability [should] be imposed upon those who plan and furnish beer for a high school graduation keg party where criminal violence erupts.” Cameron v. Murray, 151 Wn. App. 646, 649, 214 P.3d 150 (2009), review denied, 168 Wn.2d 1018 (2010). In Cameron, a negligence suit ensued after an attendee at a high school senior keg party struck the victim in the head with a heavy glass beer mug, eventually resulting in the victim’s death. Cameron, 151 Wn. App. at 649-50. On appeal, Division One rejected the generalization that “bad things happen when crowds of young people get very drunk together” as the sole basis of liability for negligence. Cameron, 151 Wn. App. at 654. Lacking any specific evidence that the parties who planned the keg party and furnished liquor for it were aware that the assailant had a propensity for violence, Division One refused to impose civil liability on those parties for the assailant’s criminal act. Cameron, 151 Wn. App. at 656.

¶66 Further, Division Three of this court has rejected the generalizations that “ ‘all minors have a dangerous proclivity when it comes to guns’ ” and “ ‘a minor misusing a gun is foreseeable by almost everyone’ ” as bases for finding civil negligence. Schwartz v. Elerding, 166 Wn. App. 608, 620, 270 P.3d 630, review denied, 174 Wn.2d 1010 (2012). In fact, Division Three undercut this generalization by observing the numerous instances in which Washington law permits minors to possess firearms.20 Schwartz, 166 Wn. App. at 620-21. Accordingly, without any specific evidence of a teenager’s involvement in any previous altercations, Division Three refused as a matter of law to impose liability on *92the defendants under a negligence theory after the teenager used the butt of a gun the defendants had given him to assault someone. Schwartz, 166 Wn. App. at 611, 617, 620-21.

¶67 Finally, I elaborate on some of the specific circumstances in which Washington law permits minors to possess and use firearms. RCW 9.41.042(7) provides that a minor may possess firearms “[o]n real property under the control of his or her parent, other relative, or legal guardian and who has the permission of the parent or legal guardian to possess a firearm.” Similarly, RCW 9.41.042(8) permits a minor’s firearm possession “[a]t his or her residence and who, with the permission of his or her parent or legal guardian, possesses a firearm for the purpose of exercising the rights specified in RCW 9A. 16.020(3).” RCW 9A.16-.020(3)21 generally permits the use of reasonable force in defending one’s self or third parties from personal harm or harm to property in their possession. Thus, Washington law permits that with the appropriate permissions, minors may not only possess but use firearms within the home for self-defense, defense of others, and defense of property. Arguably, the law contemplates that in order to be useful for self-defense purposes, such firearms may need to be readily accessible and operable by a minor, that is, unsecured and loaded.22 Thus, the majority’s broad imposition of criminal liability for failure to secure a loaded gun kept within the *93home would conflict with the legislature’s express authorization of minors to use firearms within the home for lawful defense purposes.

¶68 In sum, Washington law does not prohibit — and, to some extent, the Second Amendment affirmatively protects — keeping firearms at home. Washington courts have declined to impose a duty to the general public to secure firearms within the home from theft and subsequent criminal use, recognizing that such a heavy policy question is best addressed to the legislature. And Washington courts have held that as a matter of law, bare generalizations such as "all minors have a dangerous proclivity when it comes to guns” are insufficient on their own to maintain a civil negligence claim.

¶69 Here, where the State’s allegations consist of little more than such a broad generalization, I would hold that as a matter of law and in accord with Washington precedent, the facts fail to establish legal causation in the civil context. Such precedent should apply with even greater force in criminal cases where, as here, defendants face a possible loss of their liberty and the social stigma associated with a criminal conviction. Moreover, consistent with Washington law and policy, I would decline to judicially impose a duty to secure firearms within one’s home. The imposition of such a duty would require a careful balancing of safety and civil liberty issues involving adults — such as the potential use of stolen firearms in crimes and the civil rights of adults to own and use firearms in defense of the home — as well as Washington laws demonstrating approval of minors possessing and using firearms within the home for lawful purposes, including self-defense. Thus, the legislature is better suited to receive evidence far beyond this court’s purview in addressing the many competing public interests surrounding this issue and to craft the contours of such a duty, if any. Accordingly, I would hold that the trial court *94erred in denying Bauer’s Knapstad motion, and I would remand for dismissal of the charge against him.

Review granted at 177 Wn.2d 1019 (2013).

Judge C.C. Bridgewater is serving as a judge pro tempore of the Court of Appeals pursuant to CAR 21(c).

RCW 9A.56.300(6).

RCW 9A.08.020 provides:

(1) A person is guilty of a crime if it is committed by the conduct of another person for which he or she is legally accountable.
(2) A person is legally accountable for the conduct of another person when:
(a) Acting with the kind of culpability that is sufficient for the commission of the crime, he or she causes an innocent or irresponsible person to engage in such conduct; or
(b) He or she is made accountable for the conduct of such other person by this title or by the law defining the crime; or
(c) He or she is an accomplice of such other person in the commission of the crime.

The State charged Bauer under RCW 9A.08.020(2)(a) for unlawful possession of a firearm by a minor under the theory that he caused an innocent agent or irresponsible person, T.C., to possess a firearm. The trial court dismissed this count under a Knapstad motion; because T.C. pleaded guilty to reckless endangerment in juvenile court, he was neither an innocent agent nor an irresponsible person. The State did not appeal the dismissal of Bauer’s unlawful possession charge.

The majority distinguishes the Chester court’s construction of the statutory term “causes” on the basis that in the statute at issue in that case, “cause” was included among a list of other active verbs. Majority at 75. But an active verb is an active verb.

RCW 9A.08.020 provides:

(3) A person is an accomplice of another person in the commission of a crime if:
(a) With knowledge that it will promote or facilitate the commission of the crime, he or she:
(i) Solicits, commands, encourages, or requests such other person to commit it; or
(ii) Aids or agrees to aid such other person in planning or committing it....

RCW 9A.84.010(1) provides:

A person is guilty of the crime of riot if, acting with three or more other persons, he or she knowingly and unlawfully uses or threatens to use force, or in any way participates in the use of such force, against any other person or against property.

Even if in pari materia is inapplicable here and the third degree assault statute potentially encompasses liability for the acts of another, it also uses the action verb “causes.” ROW 9A.36.031(l)(d). Thus, the statute still required an affirmative act by Bauer before such liability could attach.

RCW 9.41.042 provides the circumstances in which minors may possess firearms.

RCW 9A.16.020(3) provides:

The use, attempt, or offer to use force upon or toward the person of another is not unlawful in the following cases:
... Whenever used by a party about to be injured, or by another lawfully aiding him or her, in preventing or attempting to prevent an offense against his or her person, or a malicious trespass, or other malicious interference with real or personal property lawfully in his or her possession, in case the force is not more than is necessary.

Likewise, the same is true for adults who need to engage in defense of homes where children are present. For many Washingtonians who are otherwise responsible firearm owners, law enforcement may only be able to respond within minutes when seconds matter. Because this court is unable to hear from such citizens before subjecting them to potential criminal liability for keeping their firearms *93necessarily operable and accessible within the home, we are a poor substitute for the legislature in situations such as this case. Cf. McGrane, 94 Wn. App. at 929.