A boy finds his father’s loaded gun. Why doesn’t Dad go to jail when someone dies?

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Guns and kids

Over the past five years, at least 36 Kentucky children accidentally shot themselves or another child with a loaded gun that adults either gave them or left within their reach. Most of the time, police quietly closed their investigations of the shootings without bringing criminal charges. “How is nobody legally responsible for this?” one anguished father asks.

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Christopher and Angelica San Martin were watching a basketball game in their Radcliff duplex one Sunday afternoon in 2012. During a commercial, Angelica went upstairs to use the bathroom. The San Martins’ 3-year-old son and 15-month-old daughter followed her to play in the master bedroom.

A few minutes later, Angelica heard a loud crack from down the hall. Her son began screaming.

“I’m sorry, Mom! I’m sorry, Mom!”

Christopher, a soldier at nearby Fort Knox, later told police that he never locked up his gun at home. Sometimes he kept it on an upper shelf in his bedroom closet. That day, he left it in its customary unlocked case on a pile of clothes on his closet floor.

It was a Smith & Wesson M&P .40 caliber pistol, a semi-automatic, advertised as what you need “when your life is on the line.” It was loaded with nine bullets.

The boy found his father’s gun. While turning it in his hands, trying to figure it out, he accidentally shot one of the nine bullets into his sister’s face, according to police. The round struck below Bella San Martin’s left nostril and exploded out the back of the toddler’s skull, killing her.

Angelica raced in, closely followed by Christopher. Bella’s body lay on their bed. The boy stood there, weeping.

“I started screaming, registering what had happened,” Angelica recounted in an interview hours later. “There was no gun in (the boy’s) hand. He was walking away scared to the other side of the room while saying, ‘I’m sorry, Mom!’ about two or three more times. … My husband and I were both just crying, and I hugged him while he was holding her.”

The Radcliff Police Department opened an investigation into Bella’s death. Nobody thought the shooting was deliberate. But a crime might have been committed.

It’s a Class D felony in Kentucky, punishable by up to five years in prison, to provide a handgun to a minor. That can include anyone who “recklessly” allows a minor to possess a handgun; it doesn’t have to be intentional. It’s a Class A misdemeanor, punishable by up to a year in jail, for minors to possess a handgun.

Another Class D felony, first-degree wanton endangerment, applies more broadly to anyone who shows “extreme indifference to the value of human life” and “wantonly engages in conduct which creates a substantial danger of death or serious physical injury to another person.”

In the end, though, no charges were filed. They seldom are after a shooting like Bella’s, which happened over the last five years, on average, at least once every seven weeks somewhere in Kentucky.

Law-enforcement officials usually sympathize with the grieving adults who most likely would be held responsible, so cases are quietly closed. And guns are so commonplace: In a recent poll, 12 percent of Kentucky parents admitted they keep at least one loaded, unsecured firearm at home with their underage children.

“If you wanted to follow through on this, you would have to prosecute the whole state,” said Dr. Susan Pollack, a pediatrician at Kentucky Children’s Hospital and director of the Pediatric and Adolescent Injury Program at the Kentucky Injury and Prevention Research Center.

“The norm in Kentucky is to keep guns in the home, and a lot of people don’t think it’s abnormal to keep them out around their children,” Pollack said. “So that’s the dilemma we face.”

Having studied the witness interviews, photographs, ballistics report and other evidence from Bella’s shooting, Hardin Commonwealth’s Attorney Chris Shaw told Radcliff police to close the file as an “accidental death.”

“After review of said materials, I do not feel that the evidence rises to the level of submission to the grand jury for possible criminal indictment,” Shaw wrote to the detectives handling the investigation.

The San Martins declined to comment for this story. Shaw, who since has left office, did not return calls seeking comment.

Radcliff police Lt. Brian Davis returned a call.

“I wasn’t part of that decision (to close the case), so I can only speculate,” Davis said. “Perhaps it was believed the parents had suffered enough, having to deal with what occurred. No sense in pouring salt into an open wound, something like that.”

“I have my own opinions,” he said.

“I was at the scene that afternoon, and I won’t ever forget it. These incidents would occur far less often if we held the parents responsible, if we even raked them over the coals, to stress that you don’t ever leave a loaded gun out. Not ever, not for a minute, if you have children in the home. Maybe that would get the message out. And I’m as pro-Second Amendment as anyone you could ever hope to find, but this has got to stop.”

The body count: 15 dead, 21 wounded

The carnage didn’t stop with Bella San Martin.

Over the last five years, at least 36 Kentucky children accidentally shot themselves or another child with a loaded gun that adults either gave them or left within their reach, according to a database created by the Herald-Leader using police reports, news stories, obituaries, social media and other public sources.

No government agency accurately tracks accidental child shootings, so the Herald-Leader tallied statewide numbers for itself. The newspaper did not include child suicides, intentional shootings of children, the accidental shooting of children by adults or the accidental shooting of adults by children.

And the newspaper’s count almost certainly missed some relevant shootings. Nationally, guns are the third-leading cause of death in children, killing nearly 1,300 a year, according to a study published this month in the medical journal Pediatrics. In Kentucky, accidental child shootings are so common they can receive scant public notice, especially if the victim survives. Some shootings get no more than a paragraph in the local newspaper or a Facebook post by a relative.

“Once you know about it, you realize it happens all the time. Children are getting shot all the time,” said Gary Hamblin, whose 6-year-old daughter nearly died this year from an accidental shotgun blast near Greenup. “If these parents weren’t so dumb, if they would realize that their children will pick up a gun if it’s left out, then we could avoid all of this.”

Of those 36 Kentucky shootings, the average age of both the shooters and the victims was 9 years old, although they ranged from 1 to 17.

Fifteen children died; 21 were wounded, sometimes with permanent, life-altering injuries. Boys, magnetically drawn to guns, nearly always were the shooters, but when other children were shot, the victims were as likely to be a girl as a boy.

Five children killed a sibling.

In some instances, guns were given to children, even if the youths did not — as the facts tragically demonstrated — understand how firearms work.

In 2013, a 5-year-old boy fatally shot his 2-year-old sister, Caroline Sparks, in the chest while playing at their home in Cumberland County, according to police. The weapon was a .22-caliber single-shot rifle that was marketed for kids as “My First Rifle.”

No charges were filed.

“Just one of those crazy accidents,” the coroner told the Herald-Leader at the time. “We don’t see that there was neglect on anyone’s part,” a Kentucky State Police officer said.

Cody Mesaris, 16, was drinking vodka and blasting music with two other teen boys in his Lincoln County bedroom a few days before Christmas in 2012. Cody’s mother, Shelia Mesaris, had given him several rifles for hunting. That night, he also had his mother’s loaded .38-caliber revolver.

Accounts differ on whether Cody or one of his friends plucked the bullet from the first chamber in the revolver’s cylinder, but it was Cody who playfully put the muzzle in his mouth and squeezed the trigger.

Cody assumed that empty chamber would protect him. He assumed he would hear a harmless “click.” He was wrong.

“Because he was intoxicated and wasn’t thinking clearly, he didn’t realize that the cylinder had rotated to the next chamber, which had a live round,” a police detective wrote in his report on Cody’s death. Crime-scene technicians recovered the boy’s shattered teeth from around the room, including one that fell out of the gun muzzle when an officer picked it up.

Shelia Mesaris, a nurse, was in the living room when Cody’s friends burst in to tell her what happened. The music was so loud that she never heard the shot. She later said she exhausted herself performing CPR on her son until emergency crews arrived, although it was obvious to her from the gruesome scene that Cody was dead.

“I’ll carry that image with me every day for the rest of my life,” Mesaris told the Herald-Leader. “I keep asking myself, what if I’d gone in there one minute earlier? He might still be alive.”

Other times, loaded guns were left lying around homes and vehicles by family and friends. One such gun owner was a police officer whose 4-year-old nephew fatally shot himself in Mount Olivet in March. One was a Louisville drug dealer whose 4-year-old sister fatally shot herself in 2015.

In another Louisville fatality, in 2014, a 4-year-old boy shot himself in the face with a pistol he found under his living room sofa. Nobody in his family would step forward to claim ownership of the gun. Police said that after they located the victim’s father and told him his son was dead, the father coldly replied, “What does that have to do with me?”

“This is a very sad case,” a Jefferson County prosecutor wrote to police afterward.

No charges were filed in any of those shootings.

Parents told police they kept loaded guns at home “for safety” and “to protect my family.” The majority stored their guns in their bedroom closets, mistakenly assuming their kids never looked in their closets. In a couple of cases, parents said they usually locked their guns in a cabinet, but they failed to this one time, or else their kids apparently discovered the keys. Otherwise, nobody reported using gun safes or gun locks.

Stephanie Reed of Highland Heights told police in 2015 that she kept moving the key to her family’s gun cabinet to keep it out of her children’s hands. Her curious 5-year-old son found it anyway, hanging on a nail in his father’s closet. Playing with his mother’s .38-caliber pistol while she napped, the boy shot his 2-year-old sister, Alyssa, in the head, permanently disabling her. The shot did especially terrible damage because the gun was loaded with hollow-point bullets.

Reed told police that before the shooting, she warned her son to stay away from the family’s guns.

“That’s a discussion we’ve had in our house, that guns are not safe for children to play with and have in their hands, and it’s not something for them to touch,” Reed said. “So if (he) would, like, walk by (the gun cabinet) and just push his finger on it, because the lock is on the outside of it, I’d say, ‘Are you supposed to be touching that?’ And he would say ‘No.’ I’d say ‘Why?’ And he would say ‘Because it’s bad.’”

No charges were filed in Alyssa’s shooting. Reed declined to comment for this story.

‘I’ll never forgive myself!’

Of the 36 police investigations into child shootings, most were closed as “accidental.” Eight yielded criminal charges. Of those eight, three are known to have brought jail or prison time; the rest resulted in plea deals and probation. Two of those eight cases were handled behind closed doors in juvenile court, so their dispositions are unknown.

With one exception, none of the defendants in those eight criminal cases were parents of young children who shot themselves or another young child. Most were participants in accidental teen-on-teen shootings who were not related to the victims, such as Shawn Perkins, 25, charged by the Laurel County Sheriff’s Department in May with unlawfully permitting a minor to possess a handgun. Police said Perkins allowed a 15-year-old girl to play with his 9mm handgun in a car, and she accidentally shot and injured the 16-year-old girl who was driving.

The one exception was David Southwick, a former state corrections employee in Trigg County. In 2013, Southwick stored three rifles, two handguns and a shotgun around the home he shared with his three young children, according to police. He kept one of the firearms, a loaded .45 caliber handgun, on a shelf in his bedroom closet, next to a toy Nerf gun that he had confiscated from the kids because they had misbehaved with it.

One evening while he was downstairs with his 10-year-old daughter, Southwick heard a gunshot from his upstairs bedroom. His other two children had found the .45. Playing with the gun, Southwick’s 4-year-old daughter shot her 2-year-old brother, Lathan, in the head, police said. On the phone with a 911 dispatcher, Southwick desperately screamed for help while Lathan moaned in agony in the background.

“He is bleeding so much!” Southwick cried at the dispatcher. “I’m so careful to keep my guns away from my kids! Please! I can’t have my son die in my arms! I’ll never forgive myself!”

“Sir, it’s not your fault,” the dispatcher assured him.

“Lathan, stay with me! Daddy needs you! Stay with me, buddy! Please, God, let my son be OK!”

Lathan survived. A Trigg County grand jury indicted Southwick on one count of first-degree wanton endangerment for “conduct which created a substantial danger of death or serious physical injury to another person.” He pleaded guilty in 2014 to a reduced charge, second-degree wanton endangerment, and received two years of probation, plus a court order to no longer possess firearms.

Southwick declined to comment for this story.

Trigg Commonwealth’s Attorney Carrie Ovey-Wiggins told the Herald-Leader that she took no pleasure in prosecuting Southwick. However, child protective workers from the state Cabinet for Health and Family Services had previously investigated him for “failure to supervise or neglect.” They issued a “safety plan” to help him be a better parent. Then he left a loaded gun where his kids could get it, Ovey-Wiggins said.

“At no time did I think it was intentional, and he obviously felt very bad about it,” Ovey-Wiggins said. “But in the final analysis, his conduct was responsible for the injury to this child.”

‘The justice system just drops it’

Kentucky is the rule, not the exception, in how it responds after a child is carelessly shot.

“Nationally, we seldom see prosecution after an accidental child shooting, and certainly it’s rare with family members,” said Robert Weisberg, who teaches criminal justice at Stanford University and studies the effectiveness of gun laws on public safety.

“There tends to be huge sympathy for the parents in these cases, even if it’s clear they are entirely at fault for what happened,” Weisberg said. “It’s seen as a double punishment to threaten parents with prison after they’ve had a child injured or killed. Either the prosecutors feel sympathy or else they fear the jury will feel that way. And a lot of people truly don’t believe the parents have done anything wrong. They don’t see leaving a loaded gun out as negligent.”

“Either way,” he said, “the justice system just drops it and moves on.”

Last winter, disgusted by the shooting of children in his community, state Sen. Gerald Neal, D-Louisville, sponsored a “child access prevention” bill in the Kentucky General Assembly.

Neal’s bill — modeled after similar laws that have passed in 18 states and the District of Columbia, with some success, studies suggest — would have made it a crime to “recklessly” store guns in a manner that lets minors have unintended access to them.

Improper firearm storage would have been a Class B misdemeanor, punishable by up to 90 days in jail and a $250 fine. The charge would have risen to a Class A misdemeanor if a minor subsequently used the gun to hurt or kill someone.

Neal said he’s a gun owner himself, but it’s not asking too much for parents to use either a gun safe or a gun lock to keep their kids from harm.

“The statistics for unintentional shootings are staggering and avoidable,” he said. “Studies show that most children know where parents keep their guns, and many have accessed those guns when their parents were not around or the weapon was unattended or unsecured. This is a problem that cries out for common-sense action to protect our children.”

Neal’s bill died for lack of action in the Senate Judiciary Committee.

The panel’s chairman, Sen. Whitney Westerfield, R-Hopkinsville, said in a recent interview that he doesn’t necessarily oppose the legislation. But existing laws, wanton endangerment and unlawfully providing a handgun to a minor, carry stiffer penalties than Neal’s bill, Westerfield said.

It shouldn’t be difficult for prosecutors to build a criminal case after an accidental child shooting using existing laws, said Westerfield, a former assistant commonwealth’s attorney in Christian County.

“I think I would argue that leaving a firearm on a coffee table is reckless, or at least could be depending on the specific facts in a given case,” Westerfield said. “The ‘reckless’ standard is as low as you can get.”

Yet that exact scenario played out in Westerfield’s own Christian County in 2013, according to police. William Wyatt, 73, was cleaning and oiling a .38-caliber revolver in his living room one morning with his young grandchildren around him. The gun was loaded. Wyatt placed the revolver on a coffee table and wandered into another room to get something.

Then he heard a loud “boom!” Wyatt’s 4-year-old grandson had picked up the gun and fired, fatally shooting his 6-year-old sister, Ellie Karlsen, in the face.

“She was bleeding pretty good. It filled her mouth,” Wyatt told police.

No charges were filed. Christian Commonwealth’s Attorney Lynn Pryor, who used to be Westerfield’s boss, told Hopkinsville police in a letter five months later that she wouldn’t prosecute anyone connected to Ellie’s death.

In a recent interview, Pryor said it can be tough to find relevant criminal charges for accidental child shootings. The most obvious charge, she said, would be wanton endangerment, which means “that someone has to show extreme indifference to human life. That’s hard to prove.”

“In my reading of the law, it would require someone actually providing (a gun) to them, as compared to just leaving it where they could come across it,” Pryor said.

“They’re tricky cases. I’m not saying that they’re not,” she said. “Something should be done to prevent this, but we also have to recognize that, especially where a family member is involved, they may already be suffering a great deal. They’re already grieving. It’s a slippery slope. And for the rest of the family, you know, you’ve lost one loved one, and now you could be looking at the felony prosecution of another.”

‘We try not to pile on’

Kentucky’s two major cities, Lexington and Louisville, are its most liberal places, without the established gun culture found in many rural areas. But law enforcement officials can be just as reluctant to pursue accidental child shootings in the cities as they are in small towns, according to interviews with police and police files reviewed by the Herald-Leader.

For example, in 2012, a 3-year-old boy shot his 3-year-old cousin in the upper left arm with a loaded 9mm semiautomatic pistol that the boys found while playing unsupervised in the bedroom of an apartment on Lexington’s Devonport Drive. The victim’s mother, who lived with him in the apartment, said her boyfriend was keeping the gun for an acquaintance. He stashed the gun under a table in the bedroom, where the curious boys found it.

No charges were filed against any of the adults. Additionally, Lexington police returned the gun to the owner after closing the case as an “accidental shooting.”

“The police department and the county attorney, their goal is not to heap charges on a family that has already gone through something traumatic,” Lexington police spokeswoman Brenna Angel said in response to questions about the case.

That same year, a 16-year-old boy was smoking marijuana at Lexington’s Douglass Park and handling a .38-caliber revolver when he accidentally fired a round. The bullet tore through his left thigh and struck a 20-year-old woman in the right calf. Both of them were taken to a hospital to be treated for gunshot wounds.

Lexington police never learned where the teen obtained the gun. No charges were filed. “Accidental shooting,” officers wrote in their report. “No criminal activity discovered.”

“In this case, they figured maybe this kid has been significantly injured already,” Angel said. “As a department, we try not to pile on.”

Last August on Penway Avenue in Louisville, an 11-year-old boy accidentally shot his 12-year-old brother, Tremain Brown Jr., in the face, killing him, with the 9mm semi-automatic handgun that his mother had left on an accessible shelf in her bedroom closet, police said. The boys’ mother told police she had acquired the gun a week earlier from a neighbor after several cars on their street were vandalized. She wrongly assumed that her sons didn’t know where she kept the loaded gun.

No charges were filed.

“While it would certainly be advisable that all guns be locked in safes, the law does not require it,” Assistant Commonwealth’s Attorney Elizabeth Jones Brown wrote to Louisville police four months after Tremain’s death, advising them to close their investigation. “I do not think a jury would find her guilty of reckless or wanton conduct.”

Perhaps the most extreme case in Louisville came in 2015.

Daniel Key, a 17-year-old marijuana dealer, placed his loaded .357 double-action revolver next to a bag of money on top of a dresser in the small Algonquin Parkway home he shared with his mother and three younger siblings. Ordinarily, such a gun requires more than 13 pounds of pressure to pull the trigger. But Key had cocked the hammer before putting down the gun and leaving the house.

Key’s 4-year-old sister, Ilanye “Shug” Price, saw the bag of money on the dresser. She reached for it, knocking the revolver to the floor, where it fired and shot her in the head, killing her. Her 6-year-old brother, who witnessed her shooting, started screaming.

Key acknowledged everything in an interview hours later with Louisville police. Yes, he said, he sold marijuana, and with his mother’s knowledge, he kept a revolver “for protection,” and he left the loaded, cocked gun lying out that rainy evening in a house full of kids.

Louisville police and the Jefferson County attorney went to juvenile court and asked to charge Key — who was six months shy of his 18th birthday when his sister died — as an adult with four counts of first-degree wanton endangerment, one count for each person who was in his house when the gun fired.

“It is the opinion of the prosecution and lead detective that the incident in which Ilanye Price’s life was taken would not have occurred if not for the wanton disregard (Key) displayed from his actions,” police wrote in their report.

However, Jefferson Juvenile Court Judge Gina Kay Calvert refused their request. Calvert ruled that there “was no probable cause” for Key to be charged, according to police records. The case was closed.

Calvert did not return calls seeking comment for this story. Key, now 19, has since accumulated a number of arrests unrelated to his sister’s death on charges including drug trafficking, carrying a concealed deadly weapon, assault, fleeing police and resisting arrest.

‘Lock up your guns’

Gary Hamblin, a commercial truck driver, got a call Feb. 5 while working in Fort Wayne, Ind. It was his ex-wife’s family. In a confused jumble of words, they told him that his 6-year-old daughter Faith, a cute brunette who strongly favored him, had been accidentally shot and killed at a home outside Greenup.

“I just lost it,” Hamblin recalled in a recent interview. “I don’t even remember anything that happened after that. Apparently I collapsed on the floor of the restaurant where I was on the phone, because eventually I was looking up at these people who were all staring down at me.”

Hamblin soon learned that there was a misunderstanding. Faith wasn’t dead.

She was indeed shot that day. Her mother had taken her to visit a friend’s house. The friend’s two sons, ages 5 and 6, were playing with Faith in a bedroom while several adults chatted in the living room. One of the boys found his father’s loaded shotgun in an unlocked cabinet with several other firearms, according to police. Futzing around with the shotgun, the boy accidentally blasted Faith square in the chest as she bounced on the bed.

In the chaos that followed, emergency workers flew Faith 30 miles away to a hospital in Huntington, W.Va., where she underwent three separate surgeries, followed by weeks of painful recovery. Her left lung kept filling with blood. Her left shoulder was shattered. One rib was broken, and another “got blown off,” Hamblin said.

“My daughter was lucky. She was very lucky to survive this,” he said. “According to the state trooper, she died on the scene, but they were able to revive her before they airlifted her.”

Kentucky State Police investigated Faith’s shooting. Officially, the case remains open, police say, but five months later, no charges connected to the shooting are expected to be filed against any of the adults present that day, including the gun’s owner. And Hamblin said he’s furious. People don’t seem to care that his little girl nearly died, he said.

“This 5-year-old boy who didn’t know any better got into a wooden cabinet that was not locked — it didn’t even have a way to lock it — and he grabbed the sawed-off shotgun that he used to shoot my daughter,” he said.

“How is nobody legally responsible for this?” Hamblin asked.

“I’m a redneck,” he said. “I’m a hillbilly. I grew up in southern Kentucky. I’m not anti-guns. I’ve owned guns. But I don’t have guns lying around everywhere. Use common sense! If you’ve got kids in the house, lock up your guns. The gun store where you buy your guns? You can get gun locks there. You can buy a gun safe there. Lock up your guns so another child does not get shot. Why is this so hard for people to understand?”

Trooper Michael Murriell, spokesman for the Kentucky State Police post in Ashland, said police didn’t find the element of “criminal negligence” in Faith’s shooting that would have been necessary to bring shooting-related charges. The case has been referred to the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives to determine if the shotgun in question was in legal condition, Murriell said.

“It’s not like these kids were left at home alone and unsupervised. Their parents were in the next room,” Murriell said. “As far as their having access to a weapon that’s loaded, you know, in that case, you could go throughout the whole state of Kentucky and find houses that have loaded weapons sitting out in them. You could charge a lot of people.”

John Cheves: 859-231-3266, @BGPolitics

How to protect children from guns

The American Academy of Pediatrics has these gun-related safety recommendations for people with children in their home:

▪  Do not buy a gun, especially a handgun, and remove all existing guns from your property.

▪  Realize that children might not understand how dangerous guns can be, despite warnings from parents.

▪  If you decide to have a gun in your home anyway, always keep it unloaded and locked in a secure container, such as a gun safe. Lock the bullets in a separate secure container. Hide the keys to those locks where children cannot get access to them. Remember that your kids might know your hiding places.

▪  Find out whether there are guns in homes your children visit. If so, ask adults in those homes if the guns are locked up.