Report of the State’s Attorney for the Judicial District of Waterbury Concerning the Investigation Into the Death of Ethan Song in Guilford, CT on January 31, 2018

Background

On January 31, 2018, at approximately 15:31 hours the Guilford Fire Rescue 911 Communication Center received a call reporting that a fifteen year old male identified as Ethan Song was suffering from a gunshot wound to his head. This report had originated from a residence in the town of Guilford. Upon arrival a few minutes later, Mr. Song was observed lying on his back in an upstairs bedroom with an obvious wound to his temple. He was quickly transported to the Yale New Haven Hospital for treatment and was pronounced dead at 16:03 hours by hospital personnel.

Jurisdiction

Concerned that the handling of the matter by the New Haven Judicial District could be perceived as a potential conflict of interest or appearance of impropriety, New Haven State’s Attorney Patrick Griffin requested that the matter be transferred to another jurisdiction for investigation and review. State’s Attorney Griffin’s request was granted and the matter was assigned to Waterbury State’s Attorney Maureen Platt on or about February 6, 2018. Since that date, all matters relating to Mr. Song’s death have been handled by the Waterbury State’s Attorney’s Office.

Investigation

The Guilford Police Department immediately undertook an extensive investigation regarding this matter. This investigation was aided by the Connecticut State Police Major Crime Squad who processed the scene of the shooting. Numerous witnesses were interviewed, extensive forensic examination was conducted, phone and computer records were analyzed, and other and all leads were aggressively pursued.

Investigatory Results

Mr. Song’s death was a tragic event in that he accidentally shot himself in the head with a .357 magnum handgun which was stored in a master bedroom closet at the location where he was shot. Mr. Song did not reside at this location and he was not related to the gun owner. This handgun was one of three which was owned by an adult male who resided at the home. On the date in question, it appears that all three weapons had been stored in a cardboard box inside of a large Tupperware container in this closet. Each weapon was secured with an operable gun lock. There is no evidence that the gun used was loaded at the time it was stored within the closet. However, ammunition for the gun was located within the same small cardboard box next to the weapon used, inside of the Tupperware container. It appears that this small cardboard box was hidden under some clothing in the larger Tupperware container. Subsequent investigation has established that the keys to the gunlocks on the three weapons were hidden in the same Tupperware container in a separate area hidden under other clothing.

An exhaustive review has determined that during the months prior to January 31, 2018, juveniles had gained access to the adult male’s weapons and played with them on several occasions. It appears that the weapons were returned to their original location after each access and there is no evidence that the gun owner knew that the guns had been retrieved by the juveniles. Rather, it appears that there was a deliberate attempt by the juveniles to withhold this information from the gun owner. There is no evidence that Mr. Song knew that the gun responsible for his death was loaded or that he had any role in loading it.

Applicable Law

Connecticut General Statute Sec 53a-217a (a) provides in part :  

(a) A person is guilty of criminally negligent storage of a firearm when such person violates the provisions of section 29-37i and a minor or, a resident of the premises who is ineligible to possess a firearm under state or federal law or who poses a risk of imminent personal injury to himself or herself or to other individuals, obtains the firearm and causes the injury or death of such minor, resident or any other person. For the purposes of this section, “minor” means any person under the age of sixteen years.

Thus, in order to charge under this section, the provisions of Connecticut General Statute 29-37i must be examined. This act provides in part:

No person shall store or keep any loaded firearm on any premises under such person’s control if such person knows or reasonably should know that (1) a minor is likely to gain access to the firearm without the permission of the parent or guardian of the minor, (2) a resident of the premises is ineligible to possess a firearm under state or federal law, or (3) a resident of the premises poses a risk of imminent personal injury to himself or herself or to other individuals, unless such person (A) keeps the firearm in a securely locked box or other container or in a location which a reasonable person would believe to be secure, or (B) carries the firearm on his or her person or within such close proximity thereto that such person can readily retrieve and use the firearm as if such person carried the firearm on his or her person. For the purposes of this section, “minor” means any person under the age of sixteen years.

Therefore, Connecticut law, unlike at least three other states, clearly requires that in order to prosecute under CGS 53a-217a(a), the state must prove beyond a reasonable doubt that the weapon was loaded when stored.

A person is guilty of Risk of Injury to a Minor under Connecticut General Statute 53-21(a)(1) when he or she:

Wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of any such child are likely to be impaired.

Connecticut General Statute 53a-63 (a) states that a person is guilty of Reckless Endangerment in the First Degree when such person  acts with “extreme indifference to human life” and “recklessly engages in conduct which creates a risk of serious physical injury.” Under Connecticut General Statute 53a-64, a person is guilty of Reckless Endangerment in the Second Degree when he “Recklessly engages in conduct which creates a risk of physical injury to another person.”

Analysis

In reviewing the evidence in question, there is no evidence that the gun owner had stored the handgun in a loaded state. Connecticut law, unlike the law in at least three other states, clearly requires proof of this element. Thus, the gun owner cannot be charged under section 53a-217.

An analysis of the Risk of Injury Statute  § 53-21 (a)(1), reveals that a person is guilty of risk of injury if he “wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, [or] the health of such child is likely to be injured….” Conduct is wilful when it is “done purposefully and with knowledge of [its] likely consequences.” (Internal quotation marks and footnote omitted.) State v. James E., 327 Conn. 212, 223 (2017).  Pursuant to § 53-21 (a)(1), a person is guilty of risk of injury if he “wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, [or] the health of such child is likely to be injured….”

Pursuant to § 53a-64, a “person is guilty of reckless endangerment in the second degree when he recklessly engages in conduct which causes a risk of physical injury to another person.” Pursuant to § 53a-3 (13), a “person acts ‘recklessly’ with respect to a result … described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result … will occur…. The risk must be of such nature and degree that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation[.]”

Because the gun owner did not breach a legal responsibility regarding the storage of his guns, in order to prove that he was aware of and consciously disregarded a substantial and unjustifiable risk that physical injury would occur, or in order to prove that he stored the guns purposefully and with knowledge that the likely consequence would be the endangerment or a child, or that a child would likely be injured, requires evidence that he knew or had reason to know that a juvenile was likely to gain access to the guns without his permission. In this case, there is no evidence that the gun owner knew that the juvenile had actual knowledge of where the guns were stored. However, even if this is not true, and he was aware that the juvenile knew where and how the guns were stored, this again could not support a prosecution since merely showing that a juvenile could gain such access is insufficient.

Conclusion

The death of Ethan Song was a horrific and preventable tragedy. However, existing law does not support a prosecution of the gun owner under any applicable statute. Two premises underlie this belief: (1) The gun owner’s conduct in storing the guns did not itself violate the law, and (2) there is a lack of evidence that he knew, or should have known, that a juvenile was likely to gain access to the guns without his permission.    

Due to confidentiality concerns involving the rights of juveniles, no comment will or can be made regarding the potential culpability or actions of any minor child.

/s/

Maureen T. Platt
State’s Attorney
Judicial District of Waterbury