The mother of a toddler shot in Killeen on Dec. 5 told police that she was in the bathroom when she heard a loud bang.
Authorities say she told them she found the 2-year-old boy in his bedroom with a gunshot wound to his torso after he accidentally fired a gun.
“It’s almost a miracle he’s alive,” said attorney John Messer, who was appointed to represent the boy and his two young sisters after Child Protective Services took emergency custody of them that morning.
Nearly four months later, the children are still in foster care, and a judge will decide how long they should remain there. But the family’s fate also rests with Killeen police, who will determine whether anyone should face criminal charges.
Gun owners can be charged with a misdemeanor in Texas if they fail to secure their firearms or leave them in a place where a child can get them. However, this so-called child access prevention, or CAP, law is rarely applied in Texas, let alone Bell County.
Five people there have been arrested on the misdemeanor charge since that section of the penal code was enacted in 1995, according to an American-Statesman review of records from the Texas Department of Public Safety.
In Travis County, three people total have been arrested after being accused of making a gun accessible to a child, according to state records, one in 1999, 2000 and 2014.
Statewide, authorities have arrested more than 200 people accused of making a firearm accessible to a child during that time, according to DPS. Convictions are even less common: There have been 61 in Texas over the past two decades. In Bell County, there have been none.
Jon Vernick, co-director of the Center for Gun Policy and Research at Johns Hopkins University, said he understands why a prosecutor might be reluctant to press charges against someone who is already mourning the death or injury of a child.
But he also said studies show CAP laws are linked to fewer accidental deaths among children and even fewer suicides among teens.
“Good research demonstrates that these laws save lives,” he said.
Florida was the first state to pass a CAP law in 1989 to encourage people to store their guns so children couldn’t readily access them. It paved a way to prosecute gun owners if unsupervised children got hold of a firearm and shot themselves or someone else.
By 1993, 11 more states had such laws, according to a study on state gun safe storage that appeared in the Journal of the American Medical Association in 1997.
The study also found that storage laws appeared to prevent unintentional shooting deaths among children younger than 15. A similar study in the Journal of Trauma Injury, Infection and Critical Care in 2006 found that the laws may have influenced the declining rate of unintentional shooting deaths among children in that same age group.
“The total number, nationally, of unintentional gun deaths has come down very substantially over the last 20 to 25 years,” Vernick said.
But while the U.S. Centers for Disease Control and Prevention tracks the age of people killed in such shootings, there is no reliable national data on how old the shooters are, he said.
The Texas Department of Public Safety doesn’t track that statistic, nor does the Austin Police Department.
Vernick said it’s possible that criminal charges are rare because the number of unintentional shootings by children is also uncommon.
Since 2011, across the 17 states the National Violent Death Reporting System had data for, there were 11 unintentional firearm deaths that year in which the shooter was 14 or younger, the Washington Post reported in September.
“But anecdotally, we know often charges are not brought because prosecutors are reluctant to prosecute a grieving family,” Vernick said.
Among the state’s most populated counties:
- There were three arrests for making a firearm accessible to a child in Bexar County, both in the late 1990s.
- There were 17 arrests in Dallas County, with one as recently as 2014.
- In Harris County, where three children were involved in unintentional shootings over four days this year, 25 arrests span the life of the law.
After the third shooting in Harris County, in which a 6-year-old boy was shot by his brother March 2, Sheriff Adrian Garcia promised “a serious push to give away gun locks and preach gun safety at every public meeting,” the Houston Chronicle reported.
Officials from the district attorney’s office in Harris County did not respond to interview requests about criminal charges in that and other cases. Officials from the district attorney’s office in Bexar and Dallas counties also did not respond to interview requests.
Dan Hamre, director of the trial division at the Travis County attorney’s office, said that CAP cases appear to be rare, but he couldn’t comment on why because they are so uncommon and he has never personally handled one.
During a court hearing over custody of the children in Bell County on Dec. 18, Messer told Judge Charles Van Orden that he thought the case was “disturbing on several levels,” though the boy was doing well. Police officers seized several weapons from the family’s home after the shooting, Messer said.
During an interview with the American-Statesman that month, Van Orden, who presides over the Centex Child Protection Court in Bell County, wondered how the children in that home were able to get their hands on a loaded weapon.
“That’s the issue in my mind,” he said. “Those weapons, if they’re loaded, should be locked away somewhere out of harm’s way.”