U.S. agent won't face gun charge

JBP · August 8, 2001, 12:55 PM

This is a follow-up to post: http://thefiringline.com/forums/show...threadid=71335

http://www.sunspot.net/news/local/ho...y07aug07.story

IMHO the fact that the prosecutors claim that they would have to prove that Bouley knew that his son, Kenneth Randall Bouley, who turns 4 next month, was a climber who had reached the top of the refrigerator is a real lame excuse. When my son was 4 I damn well made sure that I knew what kind of mischief he could get himself into. And when my grandson was as young as 2 I made sure that every firearm in the house was unloaded when he came to visit.

U.S. agent won't face gun charge
Officials decline to prosecute officer in son's shooting; 'Very high' burden of proof; Boy, 3, wounded self after pulling pistol off refrigerator
--------------------------------------------------------------------------------
By Lisa Goldberg
Sun Staff
Originally published August 7, 2001

Howard County prosecutors said yesterday that they will drop a gun charge filed against a White House Secret Service officer whose 3 1/2 - year-old son shot himself after grabbing the officer's loaded, unlocked service weapon off the top of the family's refrigerator.

Kenneth John Bouley, 33, had been scheduled for trial Aug. 28 on a charge of allowing access to firearms by minors, but Howard County State's Attorney Marna L. McLendon said yesterday that the facts of the case don't meet the "difficult" burden of proof required by the 9-year-old statute. The law requires that an adult not leave a loaded gun where he "knew or should have known" that an unsupervised youngster "would" get it.

The law says "would gain access - not could, but would. And that's a very high standard that would almost demand that a person knew a child had gained access previously," McLendon said.

To do that, she said, prosecutors would have to prove that Bouley knew that his son, Kenneth Randall Bouley, who turns 4 next month, was a climber who had reached the top of the refrigerator in the family's Huntshire Drive house in Elkridge in the past and still left his gun there. Kenny Bouley was critically wounded and is recovering at home.

The decision not to prosecute Bouley occurs amid concern over what is seen as an "ambiguous" law and as prosecutors in different Maryland jurisdictions struggle to hold parents accountable when a child gets hold of a loaded gun and causes harm.

At least one case, in Carroll County, resulted in an acquittal. And Montgomery County recently filed the same charge against a father whose 16-year-old son shot and killed his 13-year-old brother in Rockville.

Legislators have tried unsuccessfully for the past few years to change the law's penalty from a misdemeanor with a fine to a felony with jail time. Next year, they plan to also tackle the wording, said state Sen. Barbara A. Hoffman, a Baltimore Democrat, and Carole Price, who lost her 13-year-old son, John Joseph Price, after a 9-year-old shot him three years ago.

State's attorneys might be able - and more willing - to prosecute using the law "if they can get it worded the right way," said Price, who has worked with state legislators to get the law changed.

"Whether it's a felony or a misdemeanor, you can't get a conviction with this wording," Hoffman said.

Add to that the fact that someone like Bouley has suffered in other ways - through the critical injury to his son and potential sanctions at his job - and going forward with the case is that much harder, said Abraham Dash, a University of Maryland School of Law professor. The ambiguity in the law gives a judge "an out" if he or she doesn't want to convict, Dash said.

"I just don't think that in this case, it would fly," he said.

The officer's lawyer, Patrick J. McAndrew, applauded prosecutors' decision yesterday.

"The dismissal of the charge now allows the family to devote 110 percent of their time and attention to their son," McAndrew said. Bouley has been on paid leave from his Secret Service job since the shooting June 8 and still faces an administrative inquiry there, he said. "I'm just pleased [prosecutors] have come around to what we believe to be the correct position."

Howard County's decision not to go forward with the case occurred after a review of the investigation and after research into how the law has fared in other cases around the state, McLendon said. What they found, she said, were jurisdictions that decided not to use the charge and the case in Carroll that resulted in an acquittal.

In 1997, Carroll County District Judge Marc G. Rasinsky acquitted Secret Service Agent Richard Henry Neith, who was accused of leaving his loaded service weapon in a gym bag in a closet in a bedroom where his son retrieved the gun and shot a friend in the neck.

At trial, Rasinsky found that the statute was "very restrictive" and therefore didn't apply to the facts of the case, said Carroll County Senior Assistant State's Attorney David Daggett.

"It makes it very difficult," he said. "You almost have to have a very unique set of circumstances that would make this apply."

In Montgomery County, State's Attorney Douglas F. Gansler said yesterday that he believes he has just those unique circumstances in the recent case of Rockville teen Alex Hyman's death. Hyman's father, David Hyman was charged Aug. 1. In that case, 13-year-old Alex's brother, John, 16, is accused of shooting the teen with a gun he retrieved from a drawer.

Gansler's office also filed charges last year against a Gaithersburg father whose 15-year-old son shot a 15-year-old girl in the chest, killing her. The disposition of that case could not be determined.

The Montgomery prosecutor said yesterday that both of his cases concern "a very different set of facts" than in the Bouley case, in which prosecutors would have to show Kenny Bouley's parents knew he would climb to get the gun, a Sig Sauer Model P229, .357-caliber semiautomatic pistol.

The older Bouley told investigators that he could not find his gun lock and placed his gun on top of the refrigerator. The next morning, while his father was sleeping, the child climbed cabinet drawers, got the gun and shot himself, according to charging documents.

"It still is a dumb thing to do," Gansler said, referring to the father's actions. "But it would be difficult to prove that someone knew about it."

But Howard County police spokeswoman Sherry Llewellyn said the department still believes "the law does apply."

"Ultimately, it's the state's attorney's decision whether or not to move forward, but it doesn't change our belief that charging was the right thing to do in this case," she said.

Copyright © 2001, The Baltimore Sun

jimpeel · August 8, 2001, 01:06 PM

The fact is that any one of us who post here would use the ambiguities of the law to save our own a--es as well. Look at the posts at http://thefiringline.com/forums/show...threadid=75815 on the fanny pack issue in IL.

Why do we celebrate the ambiguities of one law when it applies to "one of our own" but decry those same ambiguities when it is someone we believe "should" have known better -- or we disapprove of?

croyance · August 8, 2001, 11:25 PM

That "ambiguity" would not have saved the non-LEO's among us. The prosecutor would have let a jury determine what we should have known.

As a police officer and a parent, Mr. Bouley would have had plenty of evidence that children get to places they shouldn't. Stories abound in the news.

Penalties for murder against court officers and LEO's are higher than for murder against the rest of the population. The reason given is that they are not only individual people, they are symbols of the order of society. Killing them is an attack on society itself.

By the same reasoning, when a court officer or LEO breaks the law, the weight of the law must be bought against them. Nobody is perfect, but these are people who work with the law. They also see the consequences of not following the law, and not applying forethought. Further, they are part of the enforcement apparatus of society. If they have trouble knowing and following the law, how can the rest of us? Remember that ignorance of the law is not a defence for anybody else.

A jury that would find me innocent should do the same for a LEO. What does he have to fear?

The effects of the appearance of impropriety on society is almost as bad as the actual impropriety. As long as people believe that the law plays favorites, there is no belief in the "justice" system.

That is why Mr. Bouley should be tried.

buzz_knox · August 9, 2001, 07:47 AM

I have to agree. If this guy wasn't an LEO, he would be facing trial. He's getting special treatment because of his special status.

Anybody want to tell me again this is a classless society?

**Don Gwinn** · August 9, 2001, 10:57 AM

There is no, let me repeat, NO ambiguity in the Illinois case. It is clearly spelled out in the law that one must do three things in order to be exempt from prosecution and the man in question did those three things. That's no more ambiguous than saying that he can't be prosecuted for brandishing because the gun was in the pack. Brandishing is clearly defined and he didn't do it, just as carrying illegally is clearly defined and he didn't do it.

That said, if the prosecutor is telling the truth about the level of proof needed to win this case then I don't see what else he could have done. It's not a winnable case. The question is whether that kind of judgment and restraint would apply to you and I as well.

Libertarian · August 9, 2001, 11:09 AM

There's no doubt in my mind; his badge saved him.

Master Blaster · August 9, 2001, 12:07 PM

You or I would be sitting in Jail for sure, unless we could come up with at least 250,000 bail. All of our guns would be gone for ever.

There are two levels of justice that for the priveleged, and the law for the rest of us ordinary folks

August 8, 2001, 12:55 PM	#1
JBP Senior Member Join Date: October 13, 1998 Location: Maryland Posts: 472	U.S. agent won't face gun charge This is a follow-up to post: http://thefiringline.com/forums/show...threadid=71335 http://www.sunspot.net/news/local/ho...y07aug07.story IMHO the fact that the prosecutors claim that they would have to prove that Bouley knew that his son, Kenneth Randall Bouley, who turns 4 next month, was a climber who had reached the top of the refrigerator is a real lame excuse. When my son was 4 I damn well made sure that I knew what kind of mischief he could get himself into. And when my grandson was as young as 2 I made sure that every firearm in the house was unloaded when he came to visit. U.S. agent won't face gun charge Officials decline to prosecute officer in son's shooting; 'Very high' burden of proof; Boy, 3, wounded self after pulling pistol off refrigerator -------------------------------------------------------------------------------- By Lisa Goldberg Sun Staff Originally published August 7, 2001 Howard County prosecutors said yesterday that they will drop a gun charge filed against a White House Secret Service officer whose 3 1/2 - year-old son shot himself after grabbing the officer's loaded, unlocked service weapon off the top of the family's refrigerator. Kenneth John Bouley, 33, had been scheduled for trial Aug. 28 on a charge of allowing access to firearms by minors, but Howard County State's Attorney Marna L. McLendon said yesterday that the facts of the case don't meet the "difficult" burden of proof required by the 9-year-old statute. The law requires that an adult not leave a loaded gun where he "knew or should have known" that an unsupervised youngster "would" get it. The law says "would gain access - not could, but would. And that's a very high standard that would almost demand that a person knew a child had gained access previously," McLendon said. To do that, she said, prosecutors would have to prove that Bouley knew that his son, Kenneth Randall Bouley, who turns 4 next month, was a climber who had reached the top of the refrigerator in the family's Huntshire Drive house in Elkridge in the past and still left his gun there. Kenny Bouley was critically wounded and is recovering at home. The decision not to prosecute Bouley occurs amid concern over what is seen as an "ambiguous" law and as prosecutors in different Maryland jurisdictions struggle to hold parents accountable when a child gets hold of a loaded gun and causes harm. At least one case, in Carroll County, resulted in an acquittal. And Montgomery County recently filed the same charge against a father whose 16-year-old son shot and killed his 13-year-old brother in Rockville. Legislators have tried unsuccessfully for the past few years to change the law's penalty from a misdemeanor with a fine to a felony with jail time. Next year, they plan to also tackle the wording, said state Sen. Barbara A. Hoffman, a Baltimore Democrat, and Carole Price, who lost her 13-year-old son, John Joseph Price, after a 9-year-old shot him three years ago. State's attorneys might be able - and more willing - to prosecute using the law "if they can get it worded the right way," said Price, who has worked with state legislators to get the law changed. "Whether it's a felony or a misdemeanor, you can't get a conviction with this wording," Hoffman said. Add to that the fact that someone like Bouley has suffered in other ways - through the critical injury to his son and potential sanctions at his job - and going forward with the case is that much harder, said Abraham Dash, a University of Maryland School of Law professor. The ambiguity in the law gives a judge "an out" if he or she doesn't want to convict, Dash said. "I just don't think that in this case, it would fly," he said. The officer's lawyer, Patrick J. McAndrew, applauded prosecutors' decision yesterday. "The dismissal of the charge now allows the family to devote 110 percent of their time and attention to their son," McAndrew said. Bouley has been on paid leave from his Secret Service job since the shooting June 8 and still faces an administrative inquiry there, he said. "I'm just pleased [prosecutors] have come around to what we believe to be the correct position." Howard County's decision not to go forward with the case occurred after a review of the investigation and after research into how the law has fared in other cases around the state, McLendon said. What they found, she said, were jurisdictions that decided not to use the charge and the case in Carroll that resulted in an acquittal. In 1997, Carroll County District Judge Marc G. Rasinsky acquitted Secret Service Agent Richard Henry Neith, who was accused of leaving his loaded service weapon in a gym bag in a closet in a bedroom where his son retrieved the gun and shot a friend in the neck. At trial, Rasinsky found that the statute was "very restrictive" and therefore didn't apply to the facts of the case, said Carroll County Senior Assistant State's Attorney David Daggett. "It makes it very difficult," he said. "You almost have to have a very unique set of circumstances that would make this apply." In Montgomery County, State's Attorney Douglas F. Gansler said yesterday that he believes he has just those unique circumstances in the recent case of Rockville teen Alex Hyman's death. Hyman's father, David Hyman was charged Aug. 1. In that case, 13-year-old Alex's brother, John, 16, is accused of shooting the teen with a gun he retrieved from a drawer. Gansler's office also filed charges last year against a Gaithersburg father whose 15-year-old son shot a 15-year-old girl in the chest, killing her. The disposition of that case could not be determined. The Montgomery prosecutor said yesterday that both of his cases concern "a very different set of facts" than in the Bouley case, in which prosecutors would have to show Kenny Bouley's parents knew he would climb to get the gun, a Sig Sauer Model P229, .357-caliber semiautomatic pistol. The older Bouley told investigators that he could not find his gun lock and placed his gun on top of the refrigerator. The next morning, while his father was sleeping, the child climbed cabinet drawers, got the gun and shot himself, according to charging documents. "It still is a dumb thing to do," Gansler said, referring to the father's actions. "But it would be difficult to prove that someone knew about it." But Howard County police spokeswoman Sherry Llewellyn said the department still believes "the law does apply." "Ultimately, it's the state's attorney's decision whether or not to move forward, but it doesn't change our belief that charging was the right thing to do in this case," she said. Copyright © 2001, The Baltimore Sun

August 8, 2001, 01:06 PM	#2
jimpeel Senior Member Join Date: October 11, 1999 Location: Longmont, CO, USA Posts: 3,800	The fact is that any one of us who post here would use the ambiguities of the law to save our own a--es as well. Look at the posts at http://thefiringline.com/forums/show...threadid=75815 on the fanny pack issue in IL. Why do we celebrate the ambiguities of one law when it applies to "one of our own" but decry those same ambiguities when it is someone we believe "should" have known better -- or we disapprove of? __________________ Gun Control: The premise that a woman found in an alley, raped and strangled with her own pantyhose, is morally superior to allowing that same woman to defend her life with a firearm. "Science is built up with facts, as a house is with stones. But a collection of facts is no more a science than a heap of stones is a house." - Jules Henri Poincare "Three thousand people died on Sept. 11 because eight pilots were killed" -- former Northwest Airlines pilot Stephen Luckey

August 9, 2001, 10:57 AM	#5
Don Gwinn Staff Join Date: March 9, 2000 Location: Virden, IL Posts: 5,914	There is no, let me repeat, NO ambiguity in the Illinois case. It is clearly spelled out in the law that one must do three things in order to be exempt from prosecution and the man in question did those three things. That's no more ambiguous than saying that he can't be prosecuted for brandishing because the gun was in the pack. Brandishing is clearly defined and he didn't do it, just as carrying illegally is clearly defined and he didn't do it. That said, if the prosecutor is telling the truth about the level of proof needed to win this case then I don't see what else he could have done. It's not a winnable case. The question is whether that kind of judgment and restraint would apply to you and I as well. __________________ ---------------------------------------------------------------------------------------------------------- Don Gwinn: Chicago Gun Rights Examiner

August 9, 2001, 11:09 AM	#6
Libertarian Senior Member Join Date: October 26, 1999 Location: San Antonio, Texas Posts: 2,123	There's no doubt in my mind; his badge saved him. __________________ "Today, we need a nation of Minutemen, citizens who are not only prepared to take arms, but citizens who regard the preservation of freedom as the basic purpose of their daily life and who are willing to consciously work and sacrifice for that freedom." JFK My other favorite forum is The Armed Citizen My PGP key is 0x780B7C0A

August 9, 2001, 12:07 PM	#7
Master Blaster Senior Member Join Date: October 11, 1999 Location: One of the original 13 Colonies Posts: 2,018	You or I would be sitting in Jail for sure, unless we could come up with at least 250,000 bail. All of our guns would be gone for ever. There are two levels of justice that for the priveleged, and the law for the rest of us ordinary folks __________________ The difference between Democrats and Republicans is like the difference between a poop sandwich, and a poop Sandwich with mustard.

August 8, 2001, 11:25 PM	#3
croyance Senior Member Join Date: March 30, 2001 Posts: 3,604	That "ambiguity" would not have saved the non-LEO's among us. The prosecutor would have let a jury determine what we should have known. As a police officer and a parent, Mr. Bouley would have had plenty of evidence that children get to places they shouldn't. Stories abound in the news. Penalties for murder against court officers and LEO's are higher than for murder against the rest of the population. The reason given is that they are not only individual people, they are symbols of the order of society. Killing them is an attack on society itself. By the same reasoning, when a court officer or LEO breaks the law, the weight of the law must be bought against them. Nobody is perfect, but these are people who work with the law. They also see the consequences of not following the law, and not applying forethought. Further, they are part of the enforcement apparatus of society. If they have trouble knowing and following the law, how can the rest of us? Remember that ignorance of the law is not a defence for anybody else. A jury that would find me innocent should do the same for a LEO. What does he have to fear? The effects of the appearance of impropriety on society is almost as bad as the actual impropriety. As long as people believe that the law plays favorites, there is no belief in the "justice" system. That is why Mr. Bouley should be tried.

August 9, 2001, 07:47 AM	#4
buzz_knox Senior Member Join Date: December 2, 1999 Location: Knoxville, in the Free State of Tennesse Posts: 4,194	I have to agree. If this guy wasn't an LEO, he would be facing trial. He's getting special treatment because of his special status. Anybody want to tell me again this is a classless society?