TACOMA -- A district Court of Appeals has ruled that Kitsap County prosecutors can continue their case against a man accused of providing access to a gun to his then-girlfriend's 9-year-old son, who then took the weapon to school.
The gun accidentally went off at the school in February 2012, critically injuring fellow student Amina Kocer-Bowman.
The boy told investigators he had taken the gun off a dresser at Douglas Bauer's Allyn home. He said there were other unsecured firearms in the home, which police confirmed in a search of the home.
Bauer is charged with third-degree assault in the shooting. Defense attorney Wayne Fricke has argued that Bauer did nothing to cause the assault, and that allowing the case to proceed could set a dangerous precedent.
Kitsap County Deputy Prosecutor Jeremy Morris has said that if the third-grader hadn't had "unfettered access" to firearms, the shooting at Armin Jahr Elementary in Bremerton wouldn't have happened.
Appeals court judges Joel Penoyar and Jill Johanson voted to allow the charge to proceed. Courts can discern the difference between giving a child access to, for example, a butcher knife and a hand grenade, they wrote in the decision released Friday.
The viability of such cases would be evaluated on whether the parents' actions were "at least a gross deviation from a normally careful person's conduct," the judges wrote.
Retired judge C.C. Bridgewater, a guest on the panel that heard oral arguments in the November appeal, dissented. "Even in the face of tragedy, this is a case involving potential criminal liability and imprisonment," he wrote. "As such, we are bound to strictly construe the law, not to stretch it to fit the exigencies of the situation."
Bauer will appeal the ruling to the state Supreme Court, Fricke said. If the Supreme Court doesn't overturn Friday's decision, the case will return to Kitsap County Superior Court for a jury trial.
State law says someone whose criminal negligence "causes bodily harm to another person by means of a weapon or other instrument" is guilty of third-degree assault."
Kocer-Bowman underwent multiple surgeries. The bullet remains lodged in her spine.