In the denouement of a much-publicized case, the Washington Supreme Court ordered a trial court to dismiss charges against Douglas Bauer, a man who left a loaded gun accessible to his girlfriend’s six year old child.  The child took the gun to school, where it discharged and seriously injured a classmate.  Bauer was charged with third degree assault for “causing” the child’s injury directly and under a statute outlawing criminal complicity.  Bauer sought dismissal of the charges as a matter of law, which the trial court denied.  The Court of Appeals affirmed the trial court, keeping the charges alive. In State v. Bauer, the Supreme Court reversed.

Justice Gordon McCloud wrote the majority opinion for six Justices.  The opinion centered on the legal concept of “causation.”  Anyone who has completed his or her first year of law school has been subjected to at least some intellectual bullying on this topic.  I apologize if this discussion causes any painful memories of public humiliation, unending Socratic questioning, or coffee-stained 300 page course outlines.

Causation in the law requires two elements: 1) actual or “but for” causation and 2) proximate or legal causation.  If there is an intervening act between some action and a later injury, that first act is no longer the proximate/legal cause of the injury.  If I tripped and fell on a puddle in a supermarket, one actual cause of my fall would be that another shopper dumped his coffee on the floor.  But if the shopper promptly told a cashier and the cashier promised he would clean it up, the cashier’s failure to clean the spill was an intervening act.  The shopper did not legally cause my injury, the cashier did.

The Court ruled in Bauer that proximate/legal cause is narrower in criminal cases than in tort cases.  The Court will more readily assign blame to a person for purposes of figuring out who has to pay my chiropractic bill after I get off the supermarket floor than to figure out whether anyone is going to prison. To assign criminal responsibility, the Court will ask whether the accused “actively participate[d] in the immediate physical impetus of harm.”

Therefore, a negligent act that allows another person to commit a crime on their own accord is not the legal cause of the crime for purposes of criminal law.  Similarly, that negligent act cannot impose liability under Washington’s complicity statute, because there was no underlying criminal wrongdoing.  The negligent person may well be sued for causing injury under tort law, but the chain of causation has to be much shorter and tighter for criminal liability to attach.

Bauer could have been negligent in keeping multiple loaded guns in a house visited by a small child, but that is not a crime in Washington state.  The child took the gun without Bauer’s permission or knowledge. Therefore, the act of negligence was not the legal cause of the child’s act.  Charges must be dismissed.

Dissent:           Justice Gonzalez wrote a dissent for three Justices.  The dissenters would have allowed a jury to decide whether Bauer’s negligent act was the criminal cause of the student’s injury by firearm discharge.  Justice Gonzalez noted that calling the child’s decision to take the gun an intervening act shifts blame for the injury from the adult who could anticipate the danger of leaving loaded guns accessible to a child too young to appreciate the danger of the situation.  The dissent observed that in Washington law, children under 12 are presumed to be incapable of committing a crime because of their undeveloped mental capacity.

Analysis:         It is notable that Justice Gordon McCloud wrote a majority instead of a dissent to announce a limitation on the scope of Washington’s criminal law, but perhaps unsurprising given the Second Amendment implications of the case.  While the facts in this case have been the focus of popular attention, the opinion is potentially farther reaching.  To state the proximate causation holding somewhat broadly and in plain terms: in Washington, making a mistake is not itself a crime, even if that mistake allows someone else to commit a crime.