Caught between grief and the law: Child gun deaths create wrenching legal scenario

Caught between grief and the law: Child gun deaths create wrenching legal scenario

January 6th, 2013 by Kate Belz in Local Regional News


Number of unintentional firearm deaths among children up to 14 years old in the United States.

2005: 75

2006: 54

2007: 65

2008: 62

2009: 48

2010: 62

Total: 366

Sources: Centers for Disease Control and Prevention; National Center for Injury Prevention and Control

Two-year-old Brennan Nowell is locked in his loved ones' minds as the "smiling, blue-eyed angel that absorbed life and loved all around him."

Cassie Culpepper, 11, "loved animals, horseback riding and spending time with her family."

Kydalynn Graham, 3, was "the bright and shining light" of her mother, grandparents and friends.

The same tenors of grief, sudden loss and fierce familial love ring through the obituaries of the three local children who died last year in firearms accidents.

For some, the grief may seem like enough punishment for these families.

But in each of these cases and others like them, prosecutors and grand juries are faced with the grim task of deciding whether to prosecute caregivers of the slain children for possible negligence or reckless endangerment.

Prosecutors say it is hard to generalize how these cases are handled, because each must be dealt with according to its specific circumstances.

The three accidental child shooting cases that occurred locally last year have taken starkly divergent paths since reaching the court system.

In one case, a whole family has been prosecuted in the death of a 3-year-old Bradley County, Tenn., girl who accidentally shot herself. In another case, prosecutors decided not to pursue a case against a 12-year-old Ringgold, Ga., boy who accidentally shot his 11-year-old sister to death June 1 while the two rode in the back of their family's pickup truck.

The most recent death, that of 2-year-old Brennan Nowell, who apparently accidentally shot himself in the Harrison home of his grandparents on Dec. 20, is still under investigation. A medical examiner's report analyzing the death has been completed but is being withheld from public release by request of the Hamilton County Sheriff's Office.

"These are incredibly different, complex and painful cases," said Jennifer Collins, a professor of law at Wake Forest University and a former prosecutor in Washington, D.C., who has written about prosecutions in child negligence deaths.

Every day, one of the 85 Americans killed by gunfire is younger than 15, according to Bloomberg News. Since 2005, 366 children under 15 have died in accidental firearms incidents, reports from the Centers for Disease Control and Prevention show. The South leads the nation in such deaths, the CDC statistics show.

It's difficult to track legal outcomes of these cases on a state or national level. Even if caregivers are prosecuted for negligence, many opt to accept a plea deal instead of going to trial -- which often is not followed up by the media, said Collins.

While Collins does not believe prosecution is necessary in every such case, she said it must be considered, despite the grief and guilt involved in a death.

"It's so hard, because I have tremendous sympathy for these parents," Collins said. "But I think you need to look at a fact that a life was lost and determine what's the most effective way to address that."

She said it is necessary to look at who was responsible for the child at the time the accident occurred and review possible "aggravating factors" like alcohol, drugs, or prior episodes of neglect.

In the case of firearms-related deaths, it is important to look at where the gun was stowed and whether it was secured when it was discovered by the child.

In 2010, 2-year-old Camron Wallace was killed when her 5-year-old stepbrother accidentally shot her in the chest with a handgun the children found in their parents' nightstand. The parents, Samantha and Thomas Wallace, face trial this year on a charge of criminally negligent homicide. Their next court date is Friday.

"What happened here was an accident between one young child and another young child," Samantha's attorney, Daniel Ripper, told the Chattanooga Times Free Press last year.

Four months after Kydalynn Graham accidentally shot herself with a .45-caliber pistol in May, a Bradley County grand jury indicted the little girl's family.

Kydalynn's grandfather, Tommie Graham, a 34-year veteran of the Tennessee Highway Patrol, has been charged with criminally negligent homicide and reckless endangerment. Kydalynn's grandmother, Deborah Graham; Kydalynn's mother, Jennifer Graham; and her aunt, Elizabeth Graham, were charged with reckless endangerment. Their next court appearance is later this month.

Wayne Carter, the assistant district attorney in Bradley County who is handling the case against the Grahams, said he could not discuss the details. However, he said this type of prosecution is "one of the toughest things we have to do."

"It's a heart-wrenching situation," said Carter, who is a grandfather. "You just have to know they're going through an awful, awful time. Our heart goes out to them. But you still have to look at the law. We don't pass laws. But we have to do what we think is the right thing under the law and try not to discriminate against anyone."

Carter emphasized that there don't always have to be charges in such deaths.

"You wish there were an absolute line drawn somewhere," he said. "But we're not engineers. We have to deal with things that are emotional. Things that people don't like. but we have to look at the law."

In the case of 11-year Cassie Culpepper -- who died after her brother shot her in the back of the pickup truck in Whitfield County, Ga. -- the district attorney's office took the case under team review with representatives from law enforcement and Georgia's Division of Family and Children Services.

"The decision was made that basically it was not in the interest of justice to prosecute," said Conasauga District Attorney Bert Poston. "The family is going through so much already, it didn't seem that anything would be gained by prosecuting."

The boy had thought the gun was unloaded, even firing several dry rounds before triggering the fatal shot, said Poston. The children's parents had no idea that the boy had obtained the gun and brought it in the back of the truck, he added.

But what's in the best interest of justice can be difficult to determine.

"Sometimes you're unsure of what that is," said Poston, "But you just have to make the best decision that you can with the facts you have."

The facts are still being gathered in Brennan Nowell's case, the Hamilton County Sheriff's Office said.

Brennan's grandparents, Stan and Janet Nowell, started Forgotten Child Ministries, an organization which seeks to help abandoned street children in Honduras.

In one Facebook photo, Stan Nowell cradles Brennan in his arms. In another, Brennan, with long blonde curls, clasps his grandfather's face in a toddler kiss.

"Praying for peace and comfort for you and your family in the new year to come," one friend writes.