Child Access Prevention Laws

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 What Are Child Access Prevention (“CAP”) Laws?

In short, child access prevention (“CAP”) laws are a set of laws that make it illegal for an adult person to keep a firearm in a place in which a child can easily access and discharge it. Child access prevention laws include laws that can impose criminal liability on a gun owner when a child gains access to their firearm as a result of them negligently storing the firearm.

Child access prevention laws can also include laws that prevent gun owners from providing firearms to minors. Finally, child access prevention laws also typically will define how an adult gun owner should safely store their firearms. Although child access prevention laws vary by state, the typical age that triggers child access prevention laws is anywhere between children under 14 to children under the age of 18.

The goal of child access prevention laws is to reduce firearm injuries, deaths, and suicides among minors by reducing minor’s access to firearms. For example, an elementary student could put a loaded gun in their backpack and take it to school, where it could accidentally fire and harm that child, another child, or a teacher.

The laws also aim to prevent violent crimes of minors involving firearms that they were able to access and use. In addition to child access prevention laws, almost every state has laws that establish criminal liability for minor’s that are in possession of a firearm.

What Laws Exist at the Federal and State Level?

Currently there are 14 states, along with the District of Columbia that impose criminal liability on any person that negligently stores a firearm when they knew or reasonably should have known a minor could access that firearm. The states that impose criminal liability on the negligent storage of firearms include:

  • California;
  • Connecticut;
  • D.C.;
  • Florida;
  • Hawaii;
  • Illinois;
  • Iowa;
  • Maryland;
  • Massachusetts;
  • Minnesota;
  • New Hampshire;
  • New Jersey;
  • North Carolina;
  • Rhode Island; and
  • Texas.

Out of the above list California, D.C, Massachusetts, and Minnesota all impose criminal liability if the child may or is likely to gain access to a firearm. Further, California, D.C., Hawaii, Maryland, Massachusetts, Minnesota, New Jersey, and Texas all impose criminal liability against an adult when a child gains access to a firearm regardless of whether or not there was an actual use of the firearm or the use of the firearm resulted in an injury.

From the above list only seven of the states require that a child actually carry or use the firearm before criminal liability is attached to the gun owner. Those states include:

  • Connecticut;
  • Illinois;
  • Iowa;
  • Rhode Island;
  • Florida;
  • New Hampshire; and
  • North Carolina.

Finally, Hawaii, Massachusetts, and the District of Columbia all impose criminal liability if an unloaded gun is negligently stored.

Which States Have Broader Child Access Prevention Laws?

As mentioned above, the strongest child access prevention laws are the set of laws regarding the negligent storage of firearms. However, there are many states which have broader child access prevention laws that impose criminal liability on parents or guardians. In fact, there are thirteen states that prohibit persons from intentionally, knowingly, or recklessly providing a firearm to a child.

The states that have laws regarding intentionally, knowingly, or recklessly providing a minor firearms include:

  • Colorado;
  • Delaware;
  • Georgia;
  • Indiana;
  • Kentucky;
  • Mississippi;
  • Missouri;
  • Nevada;
  • Oklahoma;
  • Tennessee;
  • Utah;
  • Virginia; and
  • Wisconsin.

Once again, these child access prevention laws are weaker than the states that have negligent storage laws. This is because recklessness requires that prosecutors prove that the gun owner was aware of the risks involved in their actions, while the negligent storage laws only require that the gun owner should have been aware. Thus, the burden is much higher for the criminal prosecutor to prove a case involving recklessness.

Are There Any Defenses to Child Access Prevention Laws?

Although the exact laws differ by state, many of the states that impose criminal liability for the negligent storage of firearms allow for exceptions or legal defenses to the criminal charges. The most common legal defense is that the gun owner was not negligent and the gun had been stored securely in a locked container. Although it may seem obvious, a gun secured in a locked container away from minors in the home eliminates the prosecution’s ability to prove negligence on behalf of the gun owner.

Other exceptions or legal defenses include:

  • The firearm is inoperable and is unable to shoot;
  • The firearm was not carelessly left out for a minor to access, but instead the gun owner was close by and could easily retrieve their firearm;
  • The minor had access to the firearm for the purpose of hunting. Importantly this defense would only apply in states which grant minors access to firearms for recreational hunting. In those states, the possession of the firearm by the minor would be considered legal; and
  • The gun owner had no reason to believe that a minor would be present. For example, an adult that lives alone would not likely be charged with criminal liability if a child broke into their home and stole their firearm that was sitting out in the open on the coffee table. This defense is often utilized when a minor enters an area with firearms illegally.

Are There Any Child Access Prevention Laws That Impose Civil Liability?

There are many states that impose civil liability on the parent or legal guardian of a minor for damages caused by a minor accessing and discharging a firearm. For example, California imposes civil liability on parents or guardians for damages caused by a minor discharging a firearm when that parent or guardian permitted the minor access to the firearm.

Once again, permitting access to firearms can include failing to secure the firearms in the home securely. Also, there are some states, such as Connecticut, that impose strict liability on a parent or legal guardian if a minor gains access to a firearm and causes injury or death to another.

Additionally, other states, such as Nevada impose strict liability if the parent or legal guardian knew or should have known that the minor had a propensity to commit violent acts. For instance, if the minor had previously been charged with a crime involving a firearm, the state would impose strict liability if the minor was freely able to access firearms again.

Furthermore, in almost every state any parent or legal guardian may be held civilly liable for most damages or injuries caused by their child. For example, if facts of the case demonstrate that the parent was negligent in failing to supervise their child, and that negligence led to the child taking actions which resulted in the injury, then the parent or legal guardian may be held liable under the theory of failure to supervise.

It is important to note that the injury caused must have been a foreseeable consequence of the parent’s failure to supervise their child. For example, if a parent left their firearm accessible in the glove compartment of their vehicle, and the child opened the glove compartment and accidentally discharged that firearm causing injury to another person or property, the parent may be held liable for those damages.

Do I Need a Lawyer for Help with Child Access Prevention Laws?

As can be seen, child access prevention laws differ greatly by state. Additionally, state-imposed gun control laws are constantly changing in response to media coverage and constitutional law challenges. Therefore, if you are facing charges regarding child access prevention laws, you should immediately consult with an experienced criminal defense attorney.

An experienced attorney will be able to advise you of your legal rights, as well as assert any applicable legal defenses. Additionally, an attorney can also represent you in court, as needed.

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