Virginia Supreme Court Revisits Meaning of "Criminal Negligence" and "Gross Negligence"

Tina Marie Bryant took a gun from Maryland and drove to Harrisonburg intending to kill herself there. The Rockingham County Sheriff's Department went to the hotel where Ms. Bryant was staying and, from outside her locked room, deputies tried to dissuade her. While the conversation was underway, they heard a gunshot from inside the room. After a few seconds of calling after her, she replied she wasn't hurt. She complied with deputies' instructions to set the gun aside, they made entry into the room, and she was taken to hospital.

Later, she was charged with the felony of unlawfully discharging a firearm in a dwelling. She defended on the theory that the gun went off accidentally and, therefore, she didn't act unlawfully.

The Court concluded that an accidental firing was no defense to a claim of unlawful discharge of a firearm.

The Court reasoned that the discharge of a firearm statute imposed different penalties for "malicious" and "unlawful" discharge of a firearm.  Ms. Bryant was charged with the lesser offense – a Class 6 felony – of "unlawful" discharge. The Court considered what "unlawful" means in the context of the statute that doesn't otherwise define the term.

The Court concluded that it at least means criminal negligence and observed that, "criminal negligence" has been defined as "gross negligence" which, in turn, requires proof of a wanton or willful action or a reckless indifference to the rights of others. Later, though, the Court observed that criminal negligence in an involuntary manslaughter prosecution might be proven simply by showing "the improper performance of some lawful act."

The only evidence in this case concerning how the gun went off was Ms. Bryant's testimony that it was accidental. (She suffered an injury to her hand where the slide on the pistol "bit" her which suggests she wasn't proficient in handling the weapon.)

The Supreme Court didn't specifically say if Ms. Bryant's actions were "wanton or willful" or if they showed a "reckless indifference to the rights of others," but on the evidence recited it's hard to see why her actions would rise to that level. Neither, though, did the Court say that Ms. Bryant's actions were "the improper performance of some lawful act," but that seems like the clearer inference.

What the Court did say was that "handling an instrumentality as inherently dangerous as a loaded firearm in an occupied building with one's finger on the trigger … is criminally negligent if discharge results in such manner as to endanger others in the building." That reasoning, though, assesses whether behavior was "unlawful" and "criminally negligent" by reference to the result of the behavior, not the behavior itself. The Court didn't say that holding a loaded gun with a finger on the trigger in an occupied dwelling is in all cases criminally negligent – just those instances where the weapon fires.

The Court leaves unanswered whether putting a finger on the trigger of a loaded gun is a lawful act if the gun doesn't fire. It also leaves unanswered what Ms. Bates's "improper performance" was. While we know the gun went off, we don't know what she did in a grossly negligent or criminally negligent way to cause the discharge.

It's a long standing principle of Virginia law that negligence cannot be presumed from the mere happening of an accident. And, yet, the Supreme Court found Ms. Bryant criminally negligent, a higher standard than ordinary negligence, not by reference to her actions (i.e., putting her finger on the trigger of a loaded gun), but by reference to those actions and the occurrence of the accidental firing.

Moreover, if all that Ms. Bryant did – the improper performance of some lawful act – then the standard for proving gross negligence just got described downward by a pretty significant measure. That holding could have implications for criminal and civil litigation far beyond the very sad, and nearly tragic, facts of this matter.