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Prosecutor open to charging splash pad gunman's mother

George Hunter, The Detroit News on

Published in News & Features

DETROIT — Macomb County Prosecutor Peter Lucido said this week he's awaiting the results of the Oakland County sheriff's investigation into Saturday's mass shooting at a Rochester Hills splash pad to determine whether to charge the gunman's mother for allegedly being aware her son posed a danger without reporting it.

During the initial stages of the probe into the shooting at the Brookland Plaza Splash Pad that left nine people wounded, Kathryn Nash told detectives that her 42-year-old son Michael Nash would stalk their Shelby Township home, brandishing one of his 12 guns and ranting about how the government was spying on them, according to Oakland County Sheriff Michael Bouchard.

Following that initial contact with authorities, Nash retained an attorney and has cut off communications with investigators, Bouchard said during a Monday press conference. Neither Bouchard's office nor Lucido knows who Kathryn Nash's lawyer is. Nash has not been charged with a crime or named in any wrongdoing. Attempts to reach her attorney Tuesday were not successful.

"The Oakland County Sheriff's Office investigation is attempting to determine why the suspect made the decisions that he did and who may have had any knowledge in that regard," county sheriff's officials said in a Tuesday statement.

Depending on what the sheriff's investigation finds, Lucido said there's a possibility Kathryn Nash might face charges because he said "a very interesting door" was opened with the April involuntary manslaughter convictions of Jennifer and James Crumbley. Oakland County Prosecutor Karen McDonald argued the Crumbleys were negligent parents who bought their son a 9mm gun even though he was in crisis, and they could have reasonably foreseen he could commit a shooting.

Lucido said what charges could apply would depend on what the investigation found.

The Crumbleys each were sentenced to 10 years in prison after a jury found them guilty of failing to prevent their 15-year-old son Ethan Crumbley from going on a shooting rampage at Oxford High School that left four students dead and seven others wounded.

Lucido said the same principle — and possibly Michigan's new "red flag" law — could be applied to the splash pad shooting case.

"It would depend on what the investigation shows and a lot of other things," Lucido said. "It's an interesting question — with the Crumbley case, (Ethan Crumbley) was a minor, the parents had purchased the gun for him, taught him how to shoot. So there are some obvious differences in the two cases.

"But if I get an investigative report that shows the mother was negligent, or that she had an idea about what her son was planning to do, it's possible there could be charges, since a very interesting door has been opened with the Crumbley case, legally speaking."

The Oakland County prosecutor is also awaiting Bouchard's report.

"If the sheriff's investigation of the Rochester Hills shooting uncovers facts that would support criminal charges, we are confident his office will present that to us," McDonald spokeswoman Gabby Klos said Tuesday.

The Crumbley convictions "involved a rare, extremely egregious set of facts where parents of a minor bought him a gun, allowed him access to it, and then failed in their legal duty to protect others when danger was imminent," Klos added.

Does red flag law apply?

Should it be determined that Kathryn Nash knew about her son's plans, Lucido questioned whether the state's red flag law might apply. The law, which took effect in mid-February, allows medical professionals, family members, guardians, former dating partners and police to petition a judge to remove firearms from individuals whom they believe are at risk of using those weapons against others or themselves.

But the law doesn't require people to report individuals suspected of posing a threat for their removal of their firearms. Michael Nash left one gun at the splash pad and had 11 firearms, including an AR-style semiautomatic rifle, in the Shelby Township mobile home he shared with his mother.

"If the mother knew that he had a mental issue and was talking paranoid stuff, and had 11 guns, then the whole purpose of the red flag law is to alert law enforcement to that," said Lucido, who represented Shelby Township while in the Legislature. "The question is, what's the legal duty to report? It's an easier issue with a minor since an adult has legal responsibility for their kids. In this case, I'd have to find out what did she know and why didn't she call?"

 

Gov. Gretchen Whitmer last year signed the Extreme Risk Order Protection Act that was similar to other "red flag" laws that had been adopted by 20 other states. The bill was part of a three-bill firearm regulation package that was introduced three months after the Feb. 13, 2023 shooting rampage on Michigan State University's campus that killed three students and wounded five others.

Under the new law, if a family member, guardian, law enforcement officer or health care provider suspects a firearm owner of posing a threat, they can file a petition for an extreme risk protection order, with or without notice to the person being petitioned. If the petition is granted and the person's firearms are confiscated, judges must hold hearings within certain time periods to ensure compliance or allow the subject of the petition to challenge the order.

"The complaint must state facts that show that issuance of an extreme risk protection order is necessary because the respondent can reasonably be expected within the near future to intentionally or unintentionally seriously physically injure himself, herself, or another individual by possessing a firearm, and has engaged in an act or acts or made significant threats that are substantially supportive of the expectation," the law stipulates.

When a judge issues a confiscation order, a violation could result in misdemeanor and felony charges, a finding of contempt of court or an automatic extension of the order. The felony charges range from one to five years in prison upon conviction. A first felony offense is punishable by up to a year in prison and a fine of up to $1,000.

The law has been criticized by some people who say it violates the Second Amendment right to bear arms. Livingston County Sheriff Mike Murphy has said he will not enforce the law.

Critics warn of law's threat

George Donnini, an attorney at Butzel Long, said he can envision prosecutors using the red flag law to try to prove negligence, even though the law doesn't compel people to report suspected threats.

"It seems that Michael Nash suffered from some sort of mental issues, he had a bunch of guns, and his mother presumably saw this erratic behavior," Donnini said. "Do I think his mother will be charged? My guess is no. Then again, (Michael Nash) killed himself, so there's no way to get justice.

"Are prosecutors going to look for someone to charge here because this was a terrible event, with kids out playing in the splash pad — every parent's worst nightmare? I wouldn't rule it out," Donnini said. "Now that the red flag law is in place, is it neglectful for not taking advantage of it? I don't think it is, but I can see some prosecutor saying now that the Crumbley decision is out there, and the parents were held responsible for their son's actions, then if you could have possibly taken some action through this red flag law and you failed to do so, a prosecutor could point to that as a reason to convict."

Officials at the Prosecuting Attorneys Association of Michigan declined to comment.

Wade Fink, a Birmingham criminal defense attorney, said he doesn’t expect Kathryn Nash to be charged.

“The Crumbley case was unique in that it created a duty to not omit certain things when you’re the parent of a minor child who’s showing symptoms that are troubling,” Fink said. “(Michael Nash) was a 42-year-old man who was living with his mother, who had a right to possess weapons, since he had no criminal convictions.

"I can’t imagine the mother being liable unless there’s evidence to show she aided and abetted the crime, or that she encouraged it. But merely not turning in your son because he’s talking crazy and owning guns shouldn’t subject you to criminal charges — and if Pete Lucido does decide to bring charges in this case, I’d love to be the defense attorney.”

Prior to the Crumbley convictions, parents were only criminally prosecuted for failing to protect their own children. Parents were held responsible in civil court for the harm their children did to others, including successful lawsuits following mass shootings at Columbine High School and Sandy Hook Elementary School. Jennifer and James Crumbley became the first parents convicted of crimes connected with their child's mass shooting.

Rick Ector, director of Legally Armed in Detroit, a firearm training and advocacy agency, said Second Amendment advocates warned the red flag law could open the door to prosecutions.

"We talked about this when they first started talking about red flag laws," said Ector, who is a board member of the National Rifle Association. "People didn't actually think they could find themselves liable for not doing something about a situation that materialized, but there's always the law of unintended circumstances."


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