By Isabel Ranney

It started with a loud popping noise. Marie rushed into the bedroom and found Reggie lying on the ground, blood pooling around him. Her two-year-old son stood nearby; a gun clutched in his hand. She immediately called 911 and began administering CPR while she waited for first responders to arrive. Reggie would not survive the shooting.

Weeks later, Marie Ayala was arrested and charged with manslaughter by culpable negligence [1].

Marie was only charged with manslaughter because her state, Florida, has Child Access Prevention (CAP) Laws, which impose strict penalties—including criminal liability—on parents who fail to safely store their firearms. While CAP laws vary in the severity of penalty largely depending on the mens rea (or intent) of the gun owner, their collective goal is to prevent unnecessary deaths by placing liability on the individuals who fail to properly store their firearms [2]. In general, CAP laws have been linked to a decrease in suicides, unintentional injuries, and violent crime [3].

In Marie’s case, CAP laws were applicable as the handgun the toddler used was frequently kept in Reggie’s bag or stored in a safe with a broken lock [4].

Arizona contains no such law.

To be clear, this author recognizes that any article about guns will be deemed controversial. This article is not about gun ownership. It only seeks to analyze the differences in criminal liability for when a child accidentally kills someone using a firearm and the legal consequences of preventable death.

The case of Michele Cox is illustrative [5]. Michele Cox was a woman from Casa Grande, Arizona who was shot and killed when her five-year-old son shot her in the chest. It is unclear who the owner of the firearm was or how the five-year-old gained access to the gun. Nevertheless, in a statement to the press, the Casa Grande Police Department ruled the death accidental and found that the “victims 5-year-old-son was responsible for the shooting” [6]. No criminal action was taken.

What the cases of Marie Ayala and Michele Cox demonstrate is an extreme difference in accountability. In Florida (and 26 other states with CAP laws – which, notably, includes Kentucky, Oklahoma, and Texas), the responsibility falls on the person who failed to secure the firearm [7]. The theory being that, had the firearm been safely stored, the violence would never have occurred.

In Arizona, the parent responsible for the firearm may face a DCS investigation for neglect (if first responders report the incident to DCS) but it is extremely unlikely that any criminal action would be taken. In fact, DCS’ Program Policy contains no protocol to follow in the event that a child gains access to an improperly stored firearm. It should be noted, however, that when a DCS caseworker initially meets with a parent they will ask if they own any firearm and, if so, will ask to inspect the safe or area where the firearm is stored. Of course, a meeting with a DCS caseworker is informal and there is no legal duty to be truthful, as it does not occur under oath.

Arizona’s approach is extremely concerning, especially in light of the recent tragedies. While charging Marie Ayala with manslaughter may seem disproportionate to some, it was her failure to properly store a firearm that led to Reggie’s death. Contrastingly, in Arizona, the only person who is “blamed” is the child, which is certain to be extremely detrimental to the child’s mental and emotional well-being. The owner of the gun, on the other hand, is unlikely to face consequences and is never held accountable. This result seems inappropriate. Michele Cox’ 5-year-old-son will never be able to escape the statement by the police officer that he “was responsible” for killing his mother.

The absence of criminal liability for persons who fail to properly store their firearms under current laws in Arizona is concerning. Children only gain access to firearms if they are improperly secured (or, in the instances where the child intentionally accesses a firearm – in which case, they would face criminal action). The persons responsible for this type of violence is not the child, but rather the person who carelessly left the firearm in a location that a child could (and did) access. For a multitude of reasons, Arizona’s gun laws need revisiting, but perhaps the state legislature needs to consider adopting CAP provisions.

Note: All firearm deaths are preventable. While orchestrating this article there was yet another catastrophic situation involving weapons. To the heartbroken families in Uvalde and all those in our country impacted by gun related deaths, this author wishes to recognize the lives of those lost in on May 24, 2022: Eva Mireles, Irma Garcia, Xavier Lopez, Amerie Jo Garza, Annabell Guadalupe Rodriguez, Uziyah Garcia, Nevaeh Alyssa Bravo, Jacklyn Cazares, Makenna Lee Elrod, Jose Manuel Flores Jr., Eliahna Garcia, Jayce Carmelo Luevanos, Tess Mata, Maranda Mathis, Alithia Ramirez, Maite Rodriguez, Alexandria “Lexi” Rubio, Layla Salazar, Jailah Nicole Silguero, Eliahana Cruz Torres, and Rojelio Torres [8].

[1] https://www.foxnews.com/us/florida-mother-charged-2-year-old-shoots-kills-father (this is somewhat of a retelling of what the author imagines occurred based on the information reported in the admittedly sparse news reports. Marie Ayala, 28, was also charged with possession of a firearm by a convicted felon).

[2] https://giffords.org/lawcenter/gun-laws/policy-areas/child-consumer-safety/child-access-prevention/#footnote_15_5593

[3] https://www.rand.org/research/gun-policy/analysis/child-access-prevention.html

[4] New details released in case of 2-year-old that shot, killed his father in Orange County (msn.com)

[5] 5-Year-Old Child in Arizona Killed His Mother After Accidentally Shooting Her in the Chest With Handgun: Police (msn.com)

[6] https://nypost.com/2021/09/06/arizona-mom-fatally-shot-in-chest-by-5-year-old-son-police/

[7]https://leg.wa.gov/Senate/Committees/LAW/Documents/SummaryOfStateChildAccessPreventionLaws.pdf

[8] https://abcnews.go.com/US/wireStory/names-19-children-teachers-killed-uvalde-school-85022854

Isabel Ranney is a third year law student at the Sandra Day O’Connor College of Law at ASU and associate editor of The Law Journal for Social Justice. She has been a law clerk at Woodnick Law since the summer of 2021.