Accidental 5 Year Old Shooting: Wrongful Death


Photo Source: Inquisitr
Last July, Noelle Shawver, 5 years old, was accidentally shot and killed by another 5 year old during a play date while the adults were in another room.

Rusty and Ashlee Lish were charged with misdemeanor injury to a child after Noelle was shot and killed by another five year old in their Chubbuck home. Bannock County prosecutors have reached a deal with Rusty and Ashlee Lish, the couple charged in the accidental shooting of five year old, Noelle Shawver. The deal came a day before the Lish's were due back incourt for a pretrial hearing. Prosecutor, Steve Muhonen, told KPVI that the Bannock County Prosecutors Office worked closely with the Shawver's family to come up with the agreement.

Under the agreement the rosecutor's office has dropped the single charge of misdeamor injury to a child against the Lish's. In return, the Lish's will have to attend a court certified parenting course, family counseling, and they are barred from owning any firearms for two years. They must also develop a community service project aimed at promoting firearm safety in the home. They can't commit any felonies or misdemeanors for two years, and are required to pay restitution to Noelle Shawver's family. If the Lish's do not comply with the agreement, the state has the option of refilinf the dismissed charges and/or charging them with felony injury to a child.

"It's an agreement that balances a lot of mercy, compassion, and forgiveness along with justice and accountability and protection on society providing restitution to the Shawver family,: said prosecuting attorney, Steven Muhonen.

The two year deferred prosecution agreement began Wednesday.

This accident raises issues about gun laws, and how they should be handled. Everytown for Gun Safety conducted research that found two children die almost every week due to unintentional shootings. Most of those shootings came from a child playing with the gun. Hopefully the community service the Lish's will be performing will bring some much needed awareness to the area.
Rusty & Ashlee Lish Photo Source: Idaho State Journal

Comments from Allen:
This unfortunate and very sad case brings up several very important legal principles: prosecutor discretion, crimes based on negligence instead of intent, and the relationship between criminal justice and civil justice.

The state could have charged this case many ways, and it could have initially been charged as a felony or misdemeanor. No one would accuse the Lishes of intentionally wanting to harm the child, but the risk of severe injury or death is so great sometimes that the law allows criminal convictions for negligent conduct that puts others at risk. Manslaughter and felony or misdemeanor injury to child come to mind.

The Lish's attorney, Greg May, did a good job here working with prosecutor, Steve Muhonen. The two came up with a reasonable resolution in the criminal action. Steve had the discretion, as prosecutor, to give the defendants a chance to do a community service related to gun safety in the home in exchange for deferring prosecution on the misdemeanor, and he did so.

One aspect of this case which is not covered in the story is the civil side of the case. Criminal plea agreements do not die the victim's hands and prevent them from bringing a wrongful death suit. In this case, the Shawver family appears to a solid wrongful death action against the Lish's. Although the plea agreement apparently covered criminal restitution, that would cover only hospital and funeral expenses of the deceased. A wrongful death action would week recovery for the lost relationship between the parents and their deceased child, which is far, far, greater than the financial loss, and should be covered by the Lish's homeowner's insurance.

Allen Browning is an attorney in Idaho Falls, Idaho who handles personal injury and criminal defense. He has over 30 years of experience and handled thousands of cases. Allen work with cases from all over Idaho. Call (208) 542-2700 to set up a free consultation if you are facing legal trouble or you have been involved in an accident.
Also, check out browninglaw.net for more information about Allen and Browning Law.


Allen Browning can help with all personal injury claims including motor vehicle accidents, serious and disabling accidents, and wrongful death claims. Allen Browning can also help with DUI, Felony, Misdemeanor, Domestic Violence, Drug Crimes, Theft, Juvenile Crimes, Violent Crimes, and Probation/Parole Violations. He is one of the most experienced and successful criminal defense attorneys in Idaho.

Sources for more information:

http://www.dailymail.co.uk/news/article-2713283/Girl-killed-5-year-old-shooting-identified.html

 http://www.idahostatejournal.com/members/death-of--year-old-girl-in-accidental-shooting-by/article_b6721f96-ee0b-11e4-a270-bf92cc989089.html

 http://www.inquisitr.com/1387280/noelle-aston-shawver-5-year-old-shot-killed-during-playdate-in-idaho/

 http://www.ktvb.com/story/news/local/2015/01/02/shooting-accident-girl/21179475/

 http://www.kpvi.com/mostpopular/story/Charges-filed-in-Chubbuck-Accidental-Shooting/lriG3f-5nEqQQE3xzjhzjw.cspx

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