Could gunowners face charges if kids access unlocked weapons? State laws differ

A Michigan man is the first person to face charges under the state’s new law requiring gun owners to keep weapons in locked storage containers around minors

Kathleen Foody
Thursday 22 February 2024 21:56 GMT

A Michigan man is the first person to face charges under the state's new law requiring gun owners to keep weapons in locked storage containers around minors.

The case is bringing attention to similar state laws across the U.S. and prosecutors' determination of when to bring criminal charges using them.

The debate is particularly sharp in Michigan, where prosecutors in another county recently secured the first conviction in the U.S. against a parent of a child who committed a mass school shooting.


Authorities said this week that Michael Tolbert failed to secure a revolver and his 2-year-old daughter accessed it and critically injured herself. The 44-year-old man faces nine felony charges, including first-degree child abuse and violation of Michigan’s gun storage law.

The girl was shot the day after Michigan's new law on gun storage around kids took effect.

Genesee County prosecutors have said a plea of not guilty has been entered for Tolbert. Online court records say he is represented by the county's office of the public defender. A representative for the office said Thursday that Tolbert would be assigned an attorney but had not yet met with his defense.


Michigan Democrats created a broad package of legislative proposals on guns in 2021, a response to a 15-year-old opening fire at his high school in Oxford Township and killing four classmates.

But they couldn't pass the proposals until taking full control of the Legislature from Republicans in 2022. A second mass shooting on the Michigan State University campus last February helped push the measures through to Democratic Gov. Gretchen Whitmer.

The storage law requires gun owners to keep unloaded firearms in a locked storage box or container when it is “reasonably known that a minor is or is likely to be present on the premises.”

It also set several levels of potential prison time or fines, with higher penalties if a child uses an unsecure gun, hurts themself or someone else or kills themself or someone else. The law makes some exceptions, including supervised use or acting in self defense.


Including Michigan, 21 U.S. states have laws permitting criminal charges against people who fail to keep a gun inaccessible to a minor, according to the Giffords Law Center to Prevent Gun Violence.

But the laws — often described as “child access prevention” — vary. In some states, the law only applies if the gun is fired. Others are stricter and apply even if the gun doesn't fire or harm someone.

State storage laws also define “minor” differently. In some, teenagers older than 14 would not be considered a minor.


There's little comprehensive data nationally.

Some prosecutors have said it is an unnecessary punishment, especially after a child dies. Others see it as a way to encourage other gun owners to lock weapons away from kids.

A 2017 investigation by the USA Today Network and The Associated Press found prosecutors brought charges about half the time from 2014 to 2016 in which children under age 12 either killed themselves or were mistakenly shot and killed by another child.

The review analyzed reports from all states, not just those with laws requiring certain types of gun storage.

The review also found that the circumstances often didn't seem to matter when comparing cases that results in charges to those that did not. But in nearly all cases where the gun owner had a felony record, prosecutors did pursue charges.

Michigan prosecutors have said Tolbert was barred from possessing firearms and ammunition due to multiple firearms-related felony convictions and drug-related convictions.

In another high-profile U.S. case, the Virginia mother of a 6-year-old boy who shot his teacher initially faced charges of felony child neglect and a misdemeanor count of recklessly storing a firearm. Prosecutors dropped the storage charge as part of a plea deal.

Erin Davis, senior counsel director of litigation at the anti-gun violence organization Brady, said laws aimed at gun storage are educational tools, not a punishment.

“It's really analogous to requiring children to be in car seats or to wear seat belts," Davis said. ”The goal is to change behavior to save lives."

Kelly Drane, research director at the Giffords Law Center, agreed.

“While we don’t have hard data on this, lack of prosecutions doesn’t preclude the law from working — it still sets a cultural standard that can help encourage more responsible behavior,” Drane said.


Even in states without laws on gun storage or kids' access, prosecutors have other options to criminally charge parents or caregivers.

Michigan's most prominent example is the involuntary manslaughter charges filed against James and Jennifer Crumbley after their son killed four of his high school classmates in 2021.

Jennifer Crumbley was found guilty this month, the first time a U.S. parent was held responsible for a child carrying out a mass school attack. James Crumbley faces trial in March. He has pleaded not guilty.

Experts have agreed the circumstances of that case are extreme. Prosecutors argue the Crumbleys made a gun accessible to their son, ignored his deteriorating mental health and didn't take him home when school officials called them to the building to show the teen's parents his concerning drawings the day of the attack.

Wayne County Prosecutor Kym Worthy — whose jurisdiction includes Detroit and is the most populated in Michigan — has routinely brought charges of child abuse or involuntary manslaughter against parents after their children have killed or wounded themselves or others with an unsecured gun.

The latest charges were filed in December against the mother and father of a 5-year-old boy killed who was shot in the face. Detroit Police Chief James White told reporters the boy found the gun on top of a dresser and was jumping on a bed when it fired.

Worthy said it's easier to prove a violation of the new law beyond a reasonable doubt compared to prosecuting other potential charges in such cases. But it's impossible to know whether the laws or the charges push more people to secure their guns, she said.

“We can't measure a negative," Worthy said, but she hopes that bringing attention to the laws “will be more of a deterrent.”

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