When someone finds a gun and uses it in a crime, should the gun owner be liable? | Special report

Show Caption Hide Caption Tennessee gun storage laws Tennessee laws are not always specific as to who is liable when someone finds a gun and uses it to hurt someone.

There is a wide disparity in how police and prosecutors treat adults who own guns used in cases where children are hurt or killed.

In Tennessee, the law allows anyone not barred from having a gun to store a handgun in the car, even if they do not have a handgun carry permit.

One Tennessee law bans knowingly or recklessly providing guns to children, but some want to extend the law to cover recklessly allowing access to a firearm.

On a recent Thursday night, a man broke into a car parked outside a bar on Demonbreun Street in Nashville and found an AR-15.

Police say he took the weapon and 90 rounds of ammunition, owned by a bouncer working at DawgHouse Saloon, and headed toward Broadway.

The first call to police about the rifle-toting man came at 10:27 p.m. The caller said a man with a "military rifle" was walking near the intersection of Broadway and West End Avenue.

Tennessee gun laws: A guide to rights and responsibilities

By 10:34, the man entered a nearby beer and wine store. Two employees called police, saying someone walked in with a gun.

“He walked in ... and he gave us a glare. And we saw the gun and we were like, oh my gosh, and then he walked out," an employee told an emergency dispatcher after calling 911.

When police arrived, 63-year-old Michael Ray Jenkins was near the store parking lot and put down the gun. He was arrested on multiple charges, including being a felon in possession of a firearm.

More: A history of red flags didn't keep guns out of hands of Waffle House shooting suspect

"It could have been total chaos, and it could have been a lot worse," said Cmdr. Kay Lockey, who leads police operations in the Midtown Hills precinct.

What's troubling to Lockey is someone could break into a car and find the type of weapon used in mass shootings across the country — including the April attack on a Waffle House that left four dead and others injured in Antioch.

There are many laws in place to address what Jenkins is accused of doing. But there are few limitations on leaving a gun and ammunition unsecured in a car.

"I think if you’re going to be a responsible gun owner, you need to be responsible in carrying the gun," Lockey said.

"I wouldn’t even leave it in a locked vehicle — too many opportunities for someone to get into that vehicle and take that weapon."

The question of what legal liability should befall someone who doesn't properly store a gun is more complicated, she said.

"I think that’s a touchy subject. I think it all comes back to being a responsible gun owner. I think that's for a legislative body to figure out."

Waffle House shooting: Law enforcement still can't say if father, son broke gun possession laws

Grand jury: 'Leaving a gun in an unlocked car ... is reckless'

Nashville grand jurors agree. In a report released earlier this year, they sent an urgent plea to lawmakers.

“We recommend that our legislators make it mandatory that gun owners act responsibly when storing their weapons,” the report read. “Leaving a gun in an unlocked car, for anyone to take, is reckless and should be treated as such by the law.”

Dwight Lewis, a former Tennessean editorial page editor and the foreman of the grand jury from January to March, said he was struck by the number of violent crimes in Nashville that involve guns. He heard from law enforcement officials who said getting a gun — often a stolen one — has become a rite of passage for some high school students.

“They stole it or they bought it off the street from somebody who got a stolen gun,” Lewis said in an interview. “We have to do something to try to save those people.

“People have a right to own guns,” Lewis said. “If you’re going to own a gun you should be responsible.”

Although Lewis helped write the report urging lawmakers to make rules about gun storage stricter, he said he wasn’t that optimistic.

“When you look at the state legislation and you see the type of laws that they’re passing, it in a way says there’s not a lot of hope,” Lewis said. “They’ve made it easier for people to carry guns — especially in places where there shouldn’t be guns.”

Wounded City: A special investigation of The Commercial Appeal exploring Memphis' gun violence problem.

Law creates disparities in charging adults

Earlier this month, a 12-year-old Memphis girl was shot and killed while sitting in her mother's car. Her mom, 34-year-old Katrena Blackshire, acknowledged leaving a loaded handgun inside the vehicle's center console.

Blackshire is charged with criminally negligent homicide and aggravated child neglect. Her 13-year-old son, who was also in the car, is charged with reckless homicide.

More: Mother charged in daughter's shooting death appears in court; son charged with reckless homicide

While Memphis law enforcement brought charges in this case, it did not in 2015 when a 4-year-old boy killed himself using his father's handgun. The gun was loaded on the nightstand when the boy found it, picked it up and shot himself.

At the time, the Shelby County District Attorney’s Office would not discuss why charges weren’t filed, according to The Commercial Appeal. A spokesman did not immediately respond to a request for comment this week.

More: Memphis, Shelby County officials provide free gun locks

In a similar case, a Nashville man was charged in 2017 with aggravated child abuse after his 18-month-old son found a gun in the man's bedroom. The child shot himself in the face but survived.

Last week prosecutors agreed the man had successfully completed a year of probation. Because the case was treated as a "judicial diversion," the case is now dismissed, said Tammy Meade, a Davidson County prosecutor.

"It had extreme extenuating circumstances where this was an appropriate disposition," Meade said in an email.

More: Nashville police say toddler shot himself with gun left on bed

The cases illustrate the findings of a 2016 joint investigation by USA TODAY and The Associated Press: There is a wide disparity in how police and prosecutors treat adults who own guns used in cases where children are hurt or killed.

Prosecutors have discretion on when to bring charges, but Tennessee laws are not always specific as to who is liable when someone finds a gun and uses it to hurt someone.

There are gun storage laws in Tennessee, including one specific to vehicles. The law allows anyone not barred from having a gun to store a handgun in the car, even if they do not have a handgun carry permit. It's unclear if Blackshire, the mom who had a .380 semi-automatic handgun in her car, was legally allowed to have a firearm.

The law is specific to the storage of handguns, not long guns.

One Tennessee law bans knowingly or recklessly providing guns to children. But some lawmakers want to extend the law to cover recklessly allowing access to a firearm.

More: Tennessee legislature takes aim at wide array of gun bills

More: Bill to keep guns from kids defeated in House committee

A Democratic measure known as "MaKayla's Law" would have created a reckless endangerment felony for parents if their child, age 13 or younger, uses an improperly stored firearm to kill or injure someone.

The proposal, championed by Memphis Democrat Sen. Sara Kyle, came after the death of 8-year-old MaKayla Dyer in the East Tennessee town of White Pine. She was shot by an 11-year-old neighbor boy who used his father's shotgun to kill the girl after she wouldn't show him her puppies.

"We have seen in these tragedies, there is often more than one victim," Kyle said during a 2017 state Senate committee hearing.

"Behind it all, you have an adult who failed to store their gun responsibly."

During this committee meeting Steve Crump, an East Tennessee prosecutor and legislative liaison for the Tennessee District Attorneys General Conference, said the bill would create a law that was unnecessary.

Prosecutors can already pursue charges for criminal negligence, depending on the case, Crump said. Kyle said some prosecutors asked her to pursue the proposed change because the new law would provide clarity on what legal recourse a parent or guardian could face.

As in previous legislative hearings, lawmakers voted down the measure. The National Rifle Association opposed the bill. In general, the organization opposes what it calls "child access prevention" laws.

"The NRA opposes these laws because they are unnecessary, ineffective, and endanger law-abiding gun owners," NRA spokeswoman Catherine Mortensen wrote in a 2017 opinion piece for the Silver City Sun News in New Mexico.

Earlier this month, Kyle said she intends to continue to push for gun storage laws. She's optimistic a state legislature set for significant turnover may be more amenable to such measures.

At least two Republicans in the statehouse already appear to agree with the idea adults should be liable if someone accesses a weapon stored inappropriately.

In 2017, Rep. Jay Reedy, R-Erin, and Sen. Kerry Roberts, R-Springfield, wanted to change state law so that an adult could face misdemeanor charges if a child is killed or injured by a gun that an adult left loaded and not secured.

The measure largely mirrors Kyle's bill, a rare move by a Republican-controlled legislature that frequently tries to roll back gun regulations.

Reedy did not respond to repeated messages seeking comment. Roberts did not specifically remember the measure, but said he believes there is bipartisan support to pursue some sort of gun storage legislation in 2019.

Roberts previously championed a bill that would have removed taxes from purchases of gun safes. The bill failed, but he plans to push the legislation again next year.

While he's optimistic about the tax exempt bill, he foresees a general concern often used to cripple legislation in the past: It's ineffective to pass gun ownership laws in an attempt to instill commonsense gun safety practices.

"I think absolutely, there is a consensus that people ought not to leave loaded guns around, and if they do they need to be held accountable," Roberts said.

"Here’s the frustration that goes along with that: If we could successfully outlaw stupid, we would do it in a heartbeat."

Texas looks at new gun regulations

In May, Texas Gov. Greg Abbott suggested strengthening gun storage laws and creating incentives for people who buy gun locks.

The suggestions come in response to a 17-year-old boy accused of shooting and killing 10 students in May using weapons legally owned by his father. The proposal included:

Holding parents liable for acts committed by their children under 18 — the current law applies to children under 17;

Creating liability for parents regardless of whether the gun is loaded when obtained by the child;

Making it a felony for the parents if a child uses a gun that was stored recklessly and kills or injures someone; and

Creating a $1 million grant program to promote the use of and potentially provide gun locks.

Such a proposal from a historically conservative state may be a signal of change. While Tennessee Republicans and Democrats have pushed for similar measures in the past, none has passed in recent years.



