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December 6, 2010
"Trial to begin in boy's death at Mass. gun expo"
The title of this post is the headline of this AP article reporting on a sad case about to become a headline-making criminal trial in Boston. Here are the basics:
Eight-year-old Christopher Bizilj -- 4-foot-3 and 66 pounds -- stepped up to the firing range to shoot an Uzi as his father and 11-year-old brother watched from a few feet away. As Christopher fired the 9mm micro submachine gun at a pumpkin, the weapon flipped backward and shot him in the head. He was pronounced dead at the hospital.
Prosecutors brought manslaughter charges against the gun club where the machine gun shoot took place, two men who supplied the weapons and a small-town police chief who owns a company that sponsored the gun fair. On Monday, the first trial begins in what is expected to be a heart-wrenching recounting of Christopher's death on Oct. 26, 2008.
Edward Fleury, the former police chief in the tiny western Massachusetts town of Pelham, has pleaded not guilty to involuntary manslaughter as well as four counts of furnishing a machine gun to a minor. Fleury was charged because he owned COPS Firearms & Training, which co-sponsored the gun fair at the Westfield Sportsman's Club. He also hired the two men who supplied the guns and ran the shooting range portion of the event.
Fleury's lawyer, Rosemary Curran Scapicchio, says there is no way Fleury could have anticipated that a child would die when he co-sponsored the event. The two men who supplied the guns -- Carl Giuffre and Domenico Spano -- had conducted the same gun shoot at the Westfield club for seven years without incident.
Fleury's lawyer also argues that prosecutors should have called Christopher's father, Dr. Charles Bizilj, to testify before the grand jury that indicted Fleury. Charles Bizilj brought his two sons to the machine gun shoot and gave them permission to fire the Uzi.
"The prosecutor urged the grand jury to find that Chief Fleury disregarded a probable risk of death of a child. However, the child's father did not believe that allowing his son to fire the machine gun would create a probable risk of death," Scapicchio wrote. "The truth is that death was not a probable consequence. Instead, it was a tragic pure accident."
Hampden District Attorney William Bennett did not return calls from The Associated Press seeking comment.
Bennett has said Charles Bizilj chose the compact Uzi for his son after he was assured it was safer than a larger weapon. He said the small size of the gun, along with its rapid rate of fire, actually made it more likely that the third-grader from Ashford, Conn., would lose control of the weapon and the muzzle would come close to his face.
Bennett said Charles Bizilj was not charged because he was a layman and based his decision to allow his sons to fire the gun on information from others who should have known it was too dangerous....
Charles Bizilj said Christopher had fired handguns and rifles previously but had never shot an automatic weapon such as an Uzi. "I watched several other children and adults use it. It's a small weapon, and Christopher was comfortable with guns. There were larger machine guns with much more recoil, and we avoided those," he told The Boston Globe the day after his son's death.
Bennett said Christopher was one of at least four children who fired automatic weapons at the fair. He said Fleury had wrongly assured Giuffre and Spano that it was legal for children to use the Uzi.
Charles Bizilj was filming his son and captured the shooting on video. Fleury's lawyer has asked the judge to exclude the graphic video from the trial.
The Bizilj family has been devastated by Christopher's death, said Bruce Melikian, an attorney who represents the family in a wrongful death lawsuit against Fleury, Spano and Giuffre. "I'm not sure what this trial will accomplish," Melikian said. "I think their main concern is that no one else ever has to go through this again."
Fleury faces a maximum of 20 years in prison if convicted on the manslaughter charge. He faces a maximum of 10 years if convicted of furnishing the weapon to a minor.
This sad real case almost sounds like a hypo from a criminal law exam, and thus it might present a good opportunity to test your knowledge of various doctrines.
December 6, 2010 in Notable real cases, Preparing for the final | Permalink
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Comments
An UZI!??! Seriously???! The kid was 8 years old. I don't know much about guns, and in fact have never personally shot one; still, I'm at least vaguely aware that Uzis are, or can be, really dangerous!
There were "at least" 4 kids who were using automatic weapons at this gun show? That's appalling. I'm not a parent, so maybe this is super-judgmental of me, but I think it's insane that any parent would ever let their (young) kid use an automatic weapon, even in a supervised setting like this. I mean, I feel like common sense should dictate that this is NOT a good idea.
Posted by: Katie Zeitler | Dec 7, 2010 8:30:20 AM
I found it interesting that the father was not charged here. "Charles Bizilj was not charged because he was a layman and based his decision to allow his sons to fire the gun on information from others who should have known it was too dangerous...." I don't know if I buy it... how many years do you have to spend in this world before you figure out that guns can be fatal? I read another article about this incident and found out that Charles Bizilj is a doctor. He actually looks like a very nice, likable member of the middle-class with whom the jury may sympathize. I don't know how relevant this is to the fact that no charges were brought against him, but maybe the prosecutors were concerned with this issue to a certain extent. It's easier to stick it to the wealthy, reckless gun show co-sponsor (who also happens to be the former chief of police- what's up with that?) than to the naive, grieving father and community doctor. By the way, was Fleury even at the gun show?
Posted by: Katarina Karac | Dec 7, 2010 11:34:54 AM
I agree with where Katarina was going with her comment. A prosecutor might even be able to make the argument that the father had a "duty to act", which he breached when he didn't take the gun out of his 8 y/o's hands! At risk of imposing my suburban values on others, the thought of giving a child a submachine gun is unfathomable. I've been around firearms with my extended family and friends, and can attest that there are some adults and college-age individuals that should likely not be allowed to touch a gun, let alone discharge it. No matter the child's background or past experience with guns, I think the dad should be held at least somewhat responsible, along with the gun-show operators.
Separately, the defendant's lawyer's claim that "death was not a probable consequence" also deserves serious scrutiny. Isn't the purpose of a firearm, by its very nature, to cause serious bodily injury or death? Even if I could be convinced that death wasn't a PROBABLE consequence, calling this incident a "pure accident" is absolutely false.
Posted by: Michael Shoenfelt | Dec 7, 2010 1:17:17 PM
I think the real issue behind not punishing the father is that (like Katarina said) is the fact that he's a very sympathetic guy. He seems like an "upstanding" member of the society who clearly made a dumb choice, but I think it would be hard to convince a jury that this guy is responsible beyond his own moral responsibility for the death of his son. It's a lot easier to pin it on the person who stood to make a profit off of the activity that the kid was engaging in (if they had to paid to use the range) rather than the father who is likely distraught by the death.
The fact is that a lot of people made a lot of ridiculously terrible decisions here - and I think the prosecutor is being realistic on what they can convince a jury of.
Posted by: Sara Smith | Dec 7, 2010 3:15:21 PM
I thought it'd be relevant to have the "statute" up:
As with voluntary manslaughter Massachusetts statutory law does not define involuntary manslaughter. Rather, Massachusetts common law, as pronounced by the courts, provides the definition for involuntary manslaughter:
One can commit involuntary manslaughter through:
(1) an unintentional killing occasioned by an act which constitutes such a disregard of the probable harmful consequences to another as to be wanton or reckless; or
(2) an unintentional killing resulting from a battery.
The first theory under which a person may face conviction for involuntary manslaughter requires an unintentional, yet unlawful killing resulting from the wanton or reckless conduct of the defendant. ...wanton or reckless conduct includes both affirmative acts and failures to act where a duty to act exists. Such acts or omissions must embody a disregard for the probable harmful consequences to another. The conduct must involve a high degree of likelihood that substantial harm will result to another. The law requires that the defendant have knowledge of the circumstances and the intent to do the act that caused the death, and also requires that the circumstances presented a danger of serious harm such that a reasonable man would have recognized the nature and degree of danger.
http://www.massmurderdefense.com/pages/manslaughter-in.html
Based on these facts, I see no LEGAL reason the dad can't be prosecuted as well. I don't think it matters IF he got the wrong info. on how safe the gun was, the fact that ANY gun has the potential of causing harm/death is enough. And I would definitely say the dad had "a duty to act" (i.e. not allow his son to shoot the gun).
Posted by: Samil | Dec 7, 2010 10:26:43 PM
I would actually agree with the statement made by the defendants attorney that "death was not a probable consequence" because although the nature of a firearm is to strike an object with deadly force, the probable consequence of shooting a firearm in a designated firing range is not death or injury. But just because something is not a probable consequence, doesn't mean that it can't be a reckless act. In my opinion, it shouldn't take very high odds to fulfill the substantial and unjustifiable risk requirement of [MPC] recklessness [the mens rea for MPC manslaughter] when the risk is that a child will mishandle a gun to their own detriment. The gun shows quote that "four other children fired guns [and were fine]" is weak. Even a very small chance of a child dying in this way sounds very "substantial and unjustifiable."
Also, if they are prosecuting the gun show operators they should be prosecuting the father as well. I believe the father when he says that he wasn't an expert with guns, but it shouldn't take an expert to know that there is some risk involved with giving your kid an Uzi. Maybe he should be held to be negligent instead of reckless, but it seems fair that if the operators are prosecuted the father should be as well. [Although I do agree with everyone's assessment of why the dad wasn't prosecuted]
Posted by: Alex Kalter | Dec 7, 2010 11:00:17 PM
This story is extremely sad. I appreciate all of the postings, but I feel like I need to stand up for the father. It's easy for us here in the this fake bubble called law school to say charge the father for manslaughter too. Just because a statute might allow for a prosecutor bring about a charge, doesn't mean they have to.
In this case, I do not believe that the prosecution didn't bring about manslaughter charges against the father because he was sympathetic or because he was a doctor or because he was an upstanding member of society. I think the prosectors chose not to bring charges because the father has already been punished more than we can imagine. Because he didn't step in and say no to his son, his son is dead. No more birthdays, no more Christmases...nothing...except guilt, sorrow, and an unquenchable desire to be able to go back in time and make a different decision.
As a side note...we talk about giving an Uzi to a kid is crazy...but is it? I'm not a supporter of kids shooting Uzi's, but at the same time let's look at the facts of the situation. According to the article above it was the Micro-Uzi. The micro-uzi is 19 inches long and when the butt stock is collapsed, it's only 11 inches long. By the fact that the weapon "flipped backwards" and the kid shot himself in the head, it seems like the butt stock was collapsed. So, if you're looking at an 11 inch Uzi, it's really only about 2 inches longer than a regular 9mm pistol (which more people are familiar with). If this kid had experience shooting "handguns and rifles", then it isn't too out of the ordinary to fire a weapon that is much smaller than a rifle and only marginally larger than other handguns. Additionally, it's a 9mm weapon, which is a relatively low caliber weapon. Typically, a regular 9mm pistol has minimal recoil. This micro-uzi, however, has a lot more recoil, primarily because it can fire 1200 rounds (bullets) per minute. See this youtube video where someone is firing a micro-uzi with the butt stock extended. This kid fires 25 rounds in less than 2 seconds. You can see how much it pushes him back even with the butt stock in his shoulder. http://www.youtube.com/watch?v=-SZ7cwzILBU&NR=1
Again, I get it, guns are inherently dangerous; they should be handled with the utmost respect and care. And, since there is a dead body, something has to be done. If it is a crime to give a machine gun to a minor and personnel from the gun fair acted with a "disregard for the probable harmful consequences to another" then charges should be brought an a jury can determine what happens. However, we can't be so quick to want to charge every possible person we can. From a utilitarian perspective of punishment, would jail time for the father deter other parents from letting their kids fire uzi's? I think not. I think the fact of a dead son serves as enough of a deterrent. From a retributivist perspective, is the father morally blameworthy? Probably not...he saw other children firing uzi's and officials from the gun fair said it would be fine. Doesn't seem to morally blameworthy to me. I guess 'm just saying that I think the father has paid more than society could ever ask from him.
Posted by: Luke@CrimLaw | Dec 8, 2010 12:25:44 AM
I think Luke raises a valid point in regard to prosecuting the father. As Luke mentioned, the father has been punished: he lost his son in a horrific accident and is forced to live with that guilt and distress for the rest of his life. This reminds me of the Jones case in some aspects. Shirley Green was found not guilty of involuntary manslaughter through failure to perform a legal duty of care for her son, Anthony. However, like Dr. Bizilj in this case, Shirley did no go unpunished. She, too, lost her child and faced the scorn and ridicule of the community. This is one of those cases where it seems the prosecutor properly used his discretion not to charge the father.
On the other hand, I think the prosecutor will have a pretty strong case against Fleury, the owner of COPS Firearms & Training. Like Welansky, who had a duty to maintain a safe environment at his club, Fleury also had a duty to maintain a safe environment. In this case, it seems that Fleury had a duty to prevent situations like this from happening; however, I think it will be a close call as to whether he was reckless or negligent in this regard.
Posted by: Todd Seaman | Dec 8, 2010 10:25:06 AM
Luke--thanks for posting that video--that gun looks a lot smaller than I'd imagined Uzis were. I admit I know pretty much nothing about guns, besides what ones hears/reads about certain types of guns (i.e., AKs), and from that I've come to associate those types of guns with extreme danger and scariness. But I suppose it all depends on how safely the gun is used--regardless of the type of gun it is.
In terms of punishment--from a utilitarian perspective--what's the best possible outcome? I think everyone would probably agree that they don't want this type of thing to happen again, ever, to anyone. But how do we ensure that it doesn't happen again? I'd tend to lean more towards increased safety precautions/regulations at gun shows, rather than charging the dad with manslaughter or the like.
Posted by: Katie Zeitler | Dec 8, 2010 11:13:32 AM
Katie - I agree with you. Everyone doesn't want this type of thing to happen again. It's interesting that last year the Massachusetts State Legislature had the opportunity to raise the penalties for corporations convicted of manslaughter. Here is the first paragraph from the Attorney General's office press release (2/26/09):
BOSTON – Attorney General Martha Coakley, State Representative Eugene L. O’Flaherty, and State Senator Joan Menard, today announced legislation to update the current manslaughter statute by increasing the penalty for corporations charged with manslaughter. Senator Bruce Tarr (R-Gloucester), also attended today’s announcement and expressed support for a change to the current manslaughter statute. The legislation updates M.G.L. Chapter 265, Section 13 by increasing the maximum penalty for corporations convicted of manslaughter from $1,000 to $250,000. The manslaughter statute was first enacted in 1784.
Here is the link for the whole press release:
http://www.mass.gov/pageID=cagopressrelease&L=1&L0=Home&sid=Cago&b=pressrelease&f=2009_02_26_manslaughter_legislation&csid=Cago
Apparently, this legislation didn't pass, because it is not reflected in the Mass. code that was updated 7/15/2010. Again, we don't know all of the facts in the case, but it seems like one way to prevent these types of accidents from happening in the future is to hold the corporations that host these gun fairs responsible. A $1000 penalty for a corporation would be laughable, if it wasn't for the seriousness of the accident. I guess it shouldn't be that surprising that the maximum penalty for corporations convicted of manslaughter is $1000 - the same as it was 226 years ago - state politicians have to raise funds for campaigning from somewhere.
Posted by: Luke@CrimLaw | Dec 8, 2010 2:51:08 PM
it so sad to hear this info. i dont want to say bad because they are all victim by the usual happening that are only not they want.
Posted by: marietta traffic lawyer | Apr 11, 2011 5:44:15 AM
I can't beleive that a child that young was allowed to shoot an Uzi. I am all for gun rights,but c'mon man.We have to use are brains a little too.
Posted by: Randy | Dec 27, 2011 10:46:08 PM
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