Shelby Foss pleaded with the 911 operator in Augusta, Georgia, to send an ambulance before it was too late. Her 4-year-old son lay bleeding nearby.
“He shot himself in the head!” Shelby Foss wailed.
Justin Foss Jr., known as J.J., found the loaded firearm under the couch and pulled the trigger.
“Look at daddy!” Justin Foss Sr. begged. “Please don’t die!”
J.J. did die — and the Fosses were charged in July with second-degree murder and child cruelty. His father was also charged with first-degree murder and unlawfully possessing a firearm as a convicted felon.
Two states north, in Kentucky, the detective investigating the August shooting death of 2-year-old Montreal Dunn — like Justin, he found an adult’s loaded gun at home and pulled the trigger — doesn’t anticipate bringing charges against the owner or the person who left it on a countertop.
Police in Birmingham, Alabama, reached a similar conclusion after 2-year-old Ke’Anthony Jelks ended his short life in November with his dad’s gun. No arrests. No charges.
“More often than not, there are not any charges,” said Detective Emily McKinley of the Louisville Metro Police in Kentucky, whose department is investigating Montreal Dunn’s case. “It does take some time, sort of debates back and forth between people.”
Deciding when to prosecute the parents of children who kill themselves with guns they find at home is a delicate balancing act.
No one case is the same, and not all states have laws on the books governing accidental gun deaths. Police and prosecutors in states without so-called child access prevention laws must use discretion when deciding whether to charge someone.
Should the parent have known their child could easily access the weapon? Did the child have to go to great lengths — for example, climbing up on a chair to reach a tall drawer — to find the hidden weapon? In a home with many adults, can you prove which one left the gun where it could be accessed? Did the mother and father have a history of negligent parenting? Of criminal behavior? Had they been warned about storing guns where kids could grab them? Was the gun legally possessed?
In the case involving J.J. Foss, the answer to the last question was no. When he was 20, Foss Sr. tied up the mother of his 16-year-old girlfriend and slit the throat of the girlfriend’s stepfather. Nobody died, but a plea deal made Foss a convicted felon stripped of his right to possess a firearm, resulting in an additional possession charge for him after his son’s death.
Currently, 27 states and the District of Columbia have some kind of child access prevention law on the books. But only 15 of those laws impose criminal liability on people who negligently store firearms and should reasonably know that their guns are vulnerable to being discovered by a child, according to the Giffords Law Center to Prevent Gun Violence.
Despite legislation passed by Congress in 2005 that requires gun manufacturers and dealers to include a secure gun storage or safety device in every sale or transfer of a handgun, federal law does not require that gun owners actually use those devices, according to Giffords.
Massachusetts is the only state in the United States that requires firearms to be kept secure with a trigger lock when not in use.
In Florida, where the father of a 2-year-old wounded in an accidental shooting on Feb. 1 was recently arrested, state law stipulates that a person whose loaded firearm is discovered by a child may be charged only if he or she “reasonably should know that a minor is likely to gain access to the firearm” and fails to store the firearm somewhere a “reasonable person would believe to be secure” or to secure the firearm with a trigger lock.
“Justice should not be the accident of geography,” said Sim Gill, the district attorney for Utah’s Salt Lake County. He supports having a nationwide standard governing accidental gun deaths, after witnessing firsthand the legal hurdles to prosecuting these cases.
The nonprofit news organization The Trace, working with the Miami Herald and McClatchy, researched a year’s worth of gun deaths involving a victim 18 and under in the 12 months since the Parkland massacre, and found at least 154 accidental shootings. Twenty-one of the victims were 2 years old.
In those 21 instances, police made an arrest less than half the time.
“In cases like this, there is no real winner,” said Sgt. Johnny Williams of the Birmingham Police Department, which recently closed the investigation of Ke’Anthony Jelks’ death without an arrest.
In states like Florida, Massachusetts and the couple of dozen others that have passed child access prevention laws, police and prosecutors at least have guidelines to follow. But they vary widely. Some hold adults liable only if they are aware that a minor is in possession of the weapon, while others penalize gun owners who improperly store their guns when their actions lead to a child injuring himself or others. Others are stricter still, and do not require the presence of injury.
But in Kentucky or Alabama, where no explicit guideline exists, police and prosecutors often must judge their cases against criminal standards for manslaughter, negligent homicide or child abuse. If they find the crimes don’t meet those standards, or if they feel the death of a child is punishment enough, parents are not charged.
In Georgia, which does not have a stringent child access prevention law, prosecutors charged J.J. Foss’ parents with second-degree murder but not explicitly for improperly storing the weapon.
Lindsay Nichols, the federal policy director at the Giffords center, said that even when a child is wounded or killed in accidental shootings, law enforcement agencies and prosecutors in non-CAP states often consider the incidents a “lower-level crime.”
The organization recommends that every state have a law in place stating that guns should be securely stored when a child has the opportunity to access them. The National Rifle Association opposes CAP laws, arguing that restricting quick access may prove deadly during an emergency.
Sgt. Murray Smith, with Florida’s Columbia County Sheriff’s Office, along the border with Georgia, said the department will likely pursue CAP-related charges against the parent of an 11-year-old who is accused of shooting his friend with the parents’ gun. He said he thinks the current law is “excellent.”
“In this case, it wasn’t followed and a child was injured,” he said of the law. “We want to make sure that the victim’s family gets justice.”
The Columbia County case involves the death of 14-year-old Jadon Vaughn the day after Christmas and the arrest of his 11-year-old friend on a manslaughter charge. The friends had been playing at the younger boy’s Lake City home when the 11-year-old retrieved a loaded gun from a drawer, removed its magazine and aimed at Jadon, according to police. There was a bullet in the chamber. His friend died.
Smith said the state attorney will ultimately decide whether to prosecute the owner of the improperly stored weapon, but added: “My gut feeling is that the adult will be charged.”
That was one of a number of cases where youths old enough to know better accidentally killed or wounded a friend. In a tragic incident on New Year’s Eve just outside of Atlanta, a group of friends were toying with a gun in a shed while on Snapchat. The gun discharged while Devin Hodges, 15, was handling it, killing 17-year-old Chad Carless. Hodges called 911.
When police arrived, there was no one to arrest. Hodges ran away and fatally shot himself with the same firearm.
Gill, the Salt Lake County district attorney, successfully pursued charges in August against the father of a 2-year-old boy, Tevita Puniani Mailie, who fatally shot himself with a gun found underneath the father’s pillow. The prosecutor said accidental shootings present a dilemma for public prosecutors seeking proportional justice in situations that vary widely.
In the case of young Tevita, prosecutors learned that the boy’s father slept on the floor of his Salt Lake City home with his children and a loaded weapon. He woke up to a loud bang. One of the child’s favorite games to play was cops and robbers.
“He’s got them all on the floor and he’s got the weapon on the floor with him,” Gill said. “That rises to a level of criminal negligence.”
Tasman William Maile was charged with negligent homicide, a misdemeanor;
During his time as the head prosecutor for the most populous county in Utah, a state that does not have a CAP law, Gill said he has used his discretion to decline prosecuting a gun-owning guardian whose grandson found his weapon in a desk drawer and killed himself.
It was a case that illustrates the gray areas of prosecuting accidental deaths, Gill said. The grandfather had “taken efforts” to keep his gun out of sight. In such cases, Gill said, prosecutors may give them the benefit of the doubt.
“Let’s say [the gun is] up in the closet on a shelf and a child has to go get a chair and has to get it down and shot themselves versus, ‘I left a gun in the playpen,’ ” he said.
A federal guideline for prosecuting accidental shootings could help erase the perception of inconsistency, Gill said.
“I think that there is a balance that can be struck between the Second Amendment and your right to possess, and the conditions in which it would be a violation of our public safety,” he said.
“How much realistic punishment can I give you if you just lost your child?” Gill added. “The loss of a loved one is about the greatest deterrent you can have.”