Do We Really Want to Go There? A Michigan Jury Endorses Vicarious Criminal Liability

A Michigan jury this past week convicted Jennifer Crumbley of “involuntary manslaughter” after her then-fifteen-year-old son Ethan shot and killed four of his classmates at Oxford High School in 2021, using a gun that his parents had given to him as a present. Ethan had suffered from depression and other mental health issues before his deadly actions, and hindsight obviously tells us that he should not have been given a gun in the first place, but the issues this trial and verdict create go well beyond any discussion of parenting.

Most media accounts of the verdict concentrate on the shooting itself, Jennifer Crumbley’s actions or inactions, and the reactions of the jurors and one of the parents whose daughter Ethan had gunned down. None asks a more important question: Did Jennifer actually break any laws, or is this a feel-good verdict that satisfies a desire for revenge?

Few things stir people to anger and activism more than school shootings. When Audrey Hale, who identified as transgender, murdered three children and three adults at Covenant School in Nashville last year, conservative parents from the school suddenly became gun control advocates. Even now, Nashville authorities have suppressed Hale’s inflammatory writings, and President Joe Biden expressed more sympathy toward people who identify as transgender than he did the families of those that lost loved ones.

In Hale’s case, she was twenty-eight and had purchased her guns legally, and police tied no one else to the shootings. However, because Ethan Crumbley was a minor, his parents did carry some legal responsibilities toward him. Had there been no shooting, however, neither parent—Jennifer nor Ethan’s father, James Crumbley—would have been charged under child neglect or abuse statutes.

The day after Thanksgiving 2021, Ethan used the SIG SAUER 9 mm semiautomatic pistol his father had legally purchased to murder four of his classmates. Because Michigan does not have a safe storage law, neither Jennifer nor James broke the law in keeping the gun at their house, nor was it illegal to tell their son the pistol was his. Furthermore, no person of medical authority had ever diagnosed Ethan with any mental disorders that would have required his parents to keep him away from guns.

In other words, when Oakland County prosecutor Karen McDonald filed charges against the parents and put Jennifer on trial, she built her case upon the “they should have known” foundation, which is not based on historical criminal law but rather the practice of cobbling together civil and criminal law to fashion criminal charges. McDonald said vicarious criminal liability existed by claiming that the parents were de facto accomplices to the killings.

New York Magazine noted that McDonald built

her manslaughter case by showing that the Crumbleys failed to exercise what in the law is known as “ordinary care.” Also known as “reasonable” or “due” care, ordinary care is usually applied in civil lawsuits to prove negligence, as when a supermarket owner fails to shovel the icy walk in front of the store and is held liable when a customer slips and breaks a leg. The law understands that an ordinary person would take care to shovel the icy walks to avert such foreseeable incidents, so the negligent supermarket owner must pay a court-ordered fine. Negligence is not, generally speaking, a crime.

Occasionally, though, a prosecutor will use “gross negligence” to support a homicide charge, as when a doctor prescribes a drug to which they know a patient is allergic, or a driver texts and speeds, or a parent leaves a baby locked in a hot parked car. In these cases, a prosecutor will use words like wanton and—as McDonald does frequently—egregious to indicate an extraordinary, criminal level of negligence. Manslaughter is murder without intent or malice.

There is little doubt of the parents’ civil liability in the case, as neither of them would qualify as model parents. However, American jurisprudence historically has been built upon English common law and the accompanying criminal law that was based upon protecting “the rights of the accused” to keep authorities from railroading people into wrongful convictions.

Although Ethan had emotional and mental problems beyond those of “normal” teenage boys, his parents’ neglect of those issues hardly rose to a criminal level. Furthermore, according to the New York Times, Jennifer came to Ethan’s school a few hours before the shooting to meet with a school counselor:

Ms. Crumbley also described a meeting with school officials that took place about two hours before the attack. She and her husband had been called to the high school after Ethan wrote troubling things on a math worksheet, including the phrase “blood everywhere.”

Ms. Crumbley said that after a counselor shared his concerns about Ethan’s mental health, they decided together that her son could stay at school rather than go home alone. They did not search his backpack, which contained the pistol that he would soon turn on his schoolmates.

Given school security rules, it would not have been the parents’ choice to search Ethan’s backpack—which turned out to be a fateful error. This, however, was not the parents’ error but rather that of the counselor. Had the warning signs that Ethan Crumbley was about to shoot up his school been what the prosecution claimed throughout the trial, then the counselor would have been just as much at fault as the parents, yet no charges were brought against any school officials.

Unfortunately, prosecutors also had the media on their side. From NBC News:

To prove its case, the prosecution tried to portray Crumbley as a neglectful mother who cared more about her hobbies and carrying on an extramarital affair than spending time with her son. Then, when she and her husband gave their son a semi-automatic handgun as a gift in the days before the shooting, prosecutors said, neither of them properly stored it.

On the day of the shooting, after the Crumbleys had been summoned to the school because of a disturbing drawing of a gun made by their son, the parents didn’t tell school officials he had access to a weapon or take him home.

As pointed out earlier, Michigan does not have a gun storage law, so legally speaking, they did not fail to “properly” store the weapon. As to the school meeting, it is doubtful that anyone asked either Jennifer or James Crumbley if their son had access to a weapon, since the prosecution surely would have pointed that out at the trial.

In both situations brought up by NBC News, neither parent broke the law nor engaged in criminal conduct, yet the jury convicted Jennifer, and a jury almost surely will convict James should he agree to stand trial. According to a juror interviewed by the media, the juror had convicted Jennifer for the following reason: “The thing that really hammered it home was that she was the last adult with the gun.”

While I emphasize that these things should not be applicable in a criminal case, they certainly can be applied in civil court, where the families of the dead and injured could seek redress and would surely prevail. So why seek prison for the parents when the criminal case was legally sketchy at best and a civil remedy was available?

McDonald’s actions were part of a longer-running pattern among progressives in the legal arena. Connor O’Keeffe recently wrote:

The political discourse about the criminal justice system is usually awful. Progressives often, correctly, cite the fact that the American population is ridiculously overincarcerated as a problem.

But rather than blame the government for making so many legitimate, peaceful acts into felonies, progressives blame vague forces like classism and white supremacy. And then, they elect prosecutors and district attorneys who cut prosecutions across the board—including for real, violent crimes. The results are what we see today in DC and a number of other progressive-controlled cities across the country.

From what we see in progressive media coverage, this is a popular verdict. Never mind that it overturns long-established legal doctrines and vastly expands criminal law without creating new statutes. Progressives are breaking new ground, finding ways to expand the definition of criminal behavior—and all the while refusing to prosecute actions and behavior that for hundreds of years have been considered to be criminal.

None of this is to excuse parental negligence or Jennifer’s affair (the prosecution also made her affair one of their exhibits of “proof” of her guilt) or the Crumbleys’ inability to relate to their son. However, a jury in Michigan was instructed to legislate new criminal laws despite lacking the legal authority to do so and then to apply those laws in politically popular ways.

Look for more of the same in the future as progressive prosecutors seek to overturn current criminal law and put something much worse in its place. This will not end well.