On November 30, American students were once again the victims of a school shooting—this time in Oxford, Michigan where a 15-year-old killed four of his classmates and injured seven others. The Oxford prosecutor has charged the parents with involuntary manslaughter, opening up new legal ground in these all too frequent and peculiarly American episodes of mass murder. Here, gun law expert Professor John Donohue discusses the case and gun violence in the U.S.
There have been many—too many—mass shootings in the U.S. The 15-year old suspect in the recent one in Oxford, Michigan used a gun purchased by his parents as a Christmas gift to him. His parents have been charged with involuntary manslaughter. Can you talk about that?
The case is tragic on so many levels, but it drives home something we see much too frequently: guns bought by parents for themselves and for their children, are used by children to commit mass murder. Of course, one of the most egregious cases was the Sandy Hook shooting in 2012 where Nancy Lanza had purchased an assault weapon and made it available to her deeply troubled son. There was no need to prosecute her because she was the first person he murdered.
Unfortunately, far too many gun owners who have guns for “protection” are very poor at assessing risk. Nancy thought she needed an arsenal to protect her from possible home invaders when she lived in one of the safest towns in America, all the while exposing herself and others to the far greater risk of a troubled youth with an assault weapon.
What do you think of the Michigan prosecutor’s case?
The parents in the recent Oxford shooting showed enormously bad judgment in buying a gun with high-capacity 15-round magazines for their troubled son. Then when he showed alarming behavior just days later, his mother oddly encouraged him to simply avoid detection when searching for ammunition on the web. Finally, when the school brought the parents in on the day of the shooting, the parents failed to disclose that the son had a gun, which he had already brought to school in his backpack. Soon after the parents left and the boy was allowed to return to his class, he opened fire killing four and wounding seven others. It is this elevated degree of parental recklessness that led to the rather unusual decision to prosecute someone beyond the shooter.
The shooting actually occurred on the same day that the 9th Circuit Court of Appeals reinstated California’s restriction on magazine size to ten rounds—a limitation on ammunition that had earlier been struck down as unconstitutional. The Michigan shooter blew through two 15-round magazines in his deadly rampage, so one must ask if the state had had a similar restriction to the one in California, which had been the law for the nation during the now lapsed federal assault weapons ban, would the students hit by any of his last ten bullets be alive today?
But we don’t hear about parents being prosecuted when their children carry out mass murder. What does the law say about shared responsibility?
All states have criminal statutes that cover killing individuals through reckless behavior, and since the actual shooter was a minor child of the parents, it is not hard to argue that the parents facilitated the homicidal conduct by their son through their series of unwise and unreasonable actions in the face of a known unreasonable risk.
But of course, every criminal defendant has a right to a jury determination of guilt. While to many Americans—and likely to the friends and families of the 11 victims—the parents of the Michigan shooter should be found criminally liable, I suspect that there are many others who think guns are such a central feature of American life that only the actual killer and intentional accomplices should be held accountable for mass shootings.
So that goes to gun culture in the U.S.
The recent civil trial in federal court in San Antonio over the mass shooting at the Sutherland Springs Baptist Church that left 26 dead revealed how parental views about the risk of guns can vary widely. In that case, the parents of the shooter Devin Kelley said they had no reason to suspect it might not be safe for him to have an assault rifle, even though Kelley had been accused of rape in high school, had been kicked out of the military, had spent a year in jail for fracturing the skull of his infant stepson and threatening his wife with a gun, and had escaped from a mental facility where he had been placed for evaluation after his arrest.
Kelley’s parents conceded he was obsessed with guns, but stated they themselves were not gun people—although they each kept loaded pistols on their night stands, had a .22 rifle, a shotgun, and an assault weapon. In modern American gun culture, there is far more tolerance of parents who supply guns to their children or fail to perceive the dangers posed when their troubled offspring have access to firearms.
Do most states require that guns are locked up?
20 states including Michigan do not have a specific law designed to prevent minor children from gaining access to guns. One had been introduced last spring in Michigan, but these laws are vigorously opposed by the gun lobby, and safe storage laws are under attack on Second Amendment grounds throughout the country. These laws have been shown to be helpful in restraining criminal misconduct and suicides, but in large parts of the country they are viewed as favorably as covid vaccines mandates and commonly ignored. When a 17-year-old used his father’s guns to kill 10 wound 10 others in a school shooting in Texas in 2018, we learned the limit of the Texas law: it only applied to children 16 or under gaining access.
Can you talk about federal gun control legislation? Is there anything that gives you reason to be hopeful?
No federal gun control legislation is possible given the current configuration of the Senate, since the Republican party opposes any new federal measures.
And how about at the state level? Are we a very divided United States when it comes to state regulation of guns?
The divide across states on matters of gun policy is enormous and growing. While some states are passing laws to prevent any police officer from enforcing any federal gun control measures—such as Missouri’s recently adopted Second Amendment Protection Law—other states like New York and California are earnestly pursuing gun safety measures, and enjoying greater reductions in firearm violence as a result.
The Supreme Court heard a case in November that could decide whether people are allowed to carry concealed weapons into airports, churches, schools and shopping centers without a special license. Can you talk about the case?
In 2008, the U.S. Supreme Court in a 5-4 decision created an individual Second Amendment right to have a gun in the home for self-defense, ignoring the language of the Amendment that called for a “well-regulated militia.” Having decided that there is a right to keep a gun in the home, the Supreme Court is now poised in the current case to say that you have a right to carry the gun outside the home. If they do, the question will be to what extent that right can be limited by states trying to reduce gun violence.
If the Supreme Court rules in favor of the right-to-carry guns, what does the evidence show might happen? Proponents say it will make us all safer.
The weight of the evidence—always contested when there are sizable economic interests involved—suggests that allowing citizens the right to carry guns outside the home leads to increases in violent crime of 13-15 percent. This has been shown in my own research, as well as in 13 other academic papers in the past four years alone.
As we painfully learned in the Kyle Rittenhouse and Ahmad Arbery cases, guns taken outside the home are much more dangerous to the public than guns left at home. Consequently, I would hope that the Supreme Court would respect the long tradition of restricting the carrying of guns and allow states like New York and California to pursue reasonable and desirable gun safety measures without interference from an increasingly hostile federal judiciary.
How many mass shootings have there been in the U.S. this year?
The one bit of good news when people start firing guns wildly is that they usually injure more than they kill. Therefore, if you define a mass shooting as an event in which four or more people are shot we have a very large number—upwards of 400 episodes for this year in the U.S. On the other hand, if mass shootings are defined as shooting events in which four or more die, then we have a much smaller number in the range of 2-3 per month. But still, a very high number particularly when compared to other Western nations, and the trauma from mass shootings reverberates far beyond the mere death toll.
John J. Donohue III has been one of the leading empirical researchers in the legal academy over the past 25 years. An economist as well as a lawyer, he is well known for using empirical analysis to determine the impact of law and public policy in a wide range of areas, including civil rights and antidiscrimination law, employment discrimination, crime and criminal justice, and school funding.