'Celebratory gunfire' cases a challenge to prosecute
By JUSTIN GEORGE and The Baltimore Sun
Jan 15, 2013 | 8:44 PM
The death of Aaliyah Boyer, a 10-year-old struck down in Cecil County, and the shooting of Laurie Eberhardt, a grandmother hit by gunfire in Florida, share the same perplexing challenge for prosecutors and investigators.
Both were watching fireworks on New Year's Eve when they were hit by apparent celebratory gunfire. And both face long odds of having their shooters brought to justice because of the anonymity of the crime and weak laws against firing guns indiscriminately into the air.
If authorities ever find the person who fired the shot that hit Aaliyah, the county's top prosecutor said, a misdemeanor charge might be the most he or she could face.
Cecil County sheriff's investigators have interviewed people they know fired in celebration moments after the new year arrived. There is no law against doing so in the area outside Elkton where the girl was hit, and police are still looking for the shooter.
Aaliyah was standing in her grandparents' yard near Elkton watching neighbors light fireworks when a bullet pierced the top of her head, sheriff's officials said. She died two days later in a Delaware hospital.
Eberhardt, who watched fireworks from a yacht club balcony in Tampa Bay, was hit in the right wrist by a large-caliber bullet about the same time as Aaliyah. Eberhardt said she cried when she learned through news reports of the 10-year-old's death. She felt compelled to speak out against celebratory gunfire, though she's not sure what can be done to stop it.
"I'm still processing it because I'm so shocked that it happened," said Eberhardt, 67, who lives in St. Petersburg. "I can't even get my head around that I was hit by a bullet in the sky. I'm learning every day this is a serious problem."
The shooter in her case has not been identified, and police and prosecutors in Florida struggle with limitations similar to those faced by Maryland authorities in such cases.
There's little national data about the problem.Organizations against celebratory gunfire use anecdotal evidence gathered each year from news reports in their campaigns. A study of stray-bullet shootings released this summer by a University of California professor who reviewed 284 incidents nationwide between March 2008 and February 2009 found that celebratory gunfire related to holidays accounted for less than 5 percent of stray-bullet shootings.
But experts say people fire into the air much more often than those falling bullets hit people. On New Year's Eve 1999, for example, Baltimore police launched a large operation that arrested 100 people caught randomly firing weapons.
The federal Bureau of Alcohol, Tobacco, Firearms and Explosives and the Maryland State Police crime lab are helping analyze possible trajectories, as well as the bullet that Aaliyah's family said was recovered from her body. Investigators have told family members it could have come from two miles away.
"We're still out there investigating everything," Cecil County Sheriff's Lt. Michael Holmes said. "We believe there are more people out there who need to be identified. Right now, we're just looking for anybody who has knowledge of weapons being fired outside a house or someone who may have been at a party where a weapon was fired."
Even if a shooter is identified, which is rare in celebratory gunfire cases, lawyers say it is difficult to convict the person of a serious crime.
"It all depends on what the facts of the investigation showed," said Cecil County State's Attorney Edward D.E. Rollins III. "It does not sound to me like a situation where this was an intentional act. When I say 'intentional,' that the person fired this gun in the area with the intent of harming this young lady."
Without a suspect, the history of the shooter and gun, and the location from which it was fired, Rollins cannot determine exactly what charges could apply. But from what is known, he said, murder charges probably would not apply. He said reckless endangerment, a misdemeanor that carries a maximum sentence of five years, might be prosecutable.
Criminal law punishes people based on their intent, said Baltimore County State's Attorney Scott Shellenberger, so it can be hard to charge someone who shoots without aiming at anyone.
Glenn Ivey, a Washington lawyer who served as Prince George's County state's attorney for eight years, said charges of second-degree murder or involuntary manslaughter are possible, depending on a shooter's intentions and how many people were around when he pulled the trigger.
"But if it's Cecil County and you shoot a gun in the air on your 10-acre farm," he said, "that's different than shooting off a gun in, say, Ravens stadium."
Reckless endangerment has an easier standard to prove, said George Capowich, a criminal justice professor at Loyola University in New Orleans.
In metropolitan areas, many governments, including in Baltimore and Baltimore County, have passed local laws that prohibit the "unlawful discharge" of guns — or shooting for almost any reason. Exceptions include self-defense, licensed target ranges, and some military and hunting occasions.
A simple gun discharge violation in Baltimore County is a misdemeanor punishable by up to six months in jail and a fine of $1,000; in the city, a conviction can bring a jail term of up to one year.
"The likelihood of anyone getting a stiff sentence is pretty small, but it's still a tool police could use if they catch anyone," Capowich said.
Some cities have stricter laws that apply to celebratory gunfire. Houston authorities can sentence shooters to up to a year in jail — and as much as 10 years in cases of "deadly conduct." Oakland laws call for a term of one to three years for celebratory gunfire.
Sandy Duran, mother of 13-year-old Diego Duran, who survived a bullet that went through his brain and lodged behind his cheekbone on New Year's Day 2012 near Tampa, said investigators have told her that a suspect, if ever found, would face no more than a charge of culpable negligence.
"It's a first-degree misdemeanor," said Sandy Duran, founder of the advocacy group Bullet Free Sky. "I believe it should be a felony. It's taken so lightly unless it kills someone. But what are the chances of finding the person who shot that bullet?"
That's why she believes more steps need to be taken to curb holiday gunfire, including public-awareness campaigns, better gun-safety courses and more eyes and ears on the streets.
Enforcement has varied in Baltimore after the 1999 initiative that netted 100 arrests. City police reported no unlawful discharge arrests between Dec. 31 and Jan. 1 of this year, though police made about 20 gun arrests and confiscations.
"Celebratory gunfire had been an issue for cities for some time, especially here," Baltimore police spokesman Anthony Guglielmi said. "And we have been focused on a fight against illegal guns, and we believe we've sent a message."
But on July 4, 2011, a bullet pierced the hip of a 4-year-old Middle River boy walking with his father near Pratt and Light streets just after the Inner Harbor fireworks show. The boy recovered; no one was arrested.
Henry Louis Adams, a Georgia minister and founder of Citizens Against Celebratory Gunfire and Senseless Gun Violence, said it would be easier to make arrests if more law enforcement agencies used acoustic detection systems that can triangulate and pinpoint gunshots.
SpotShooter, one of those systems, has been proven effective in many places, including Washington, Atlantic City, Los Angeles County, Charleston, S.C., Oakland and East Palo Alto, Calif.
"Bring this technology in," said Adams, who lives in the DeKalb County community where a falling bullet killed Marquel Peters, 4, on New Year's Day 2010 inside a church. "I don't care if it's a penny tax on everyone or whatever it is, this is a quality of life issue."
In 2008, the Johns Hopkins University installed the donated SECURES Gunshot Detection System that included 93 detector boxes on streetlights and other places in the Homewood and Charles Village communities. A university spokeswoman said the system hasn't been operational for several years because the installation company went out of business.
Baltimore police tested the system with Hopkins and considered other detection programs. But cost was among the reasons the city passed on one.
In a "perfect world," Guglielmi said, police would want a system that integrated a sound detection system with the city's CitiWatch camera system.
In unincorporated Cecil County, Cheri Blackburn doubts better investigative tools or stronger laws could have prevented what happened to her step-granddaughter, Aaliyah, outside Blackburn's home south of Elkton, a small town that has an unlawful-discharge law.
"I know a lot of people will use this as a pro-gun, anti-gun thing," she said. "There are already gun laws in place, but you can't legislate stupidity."
Preventing celebratory gunfire starts with responsible ownership and personal accountability, she said.
She acknowledged that her family is torn between members who believe Cecil County investigators are doing everything to solve the case and others upset that they haven't arrested people who they know fired guns on New Year's Eve — even if their bullets didn't hit Aaliyah.
"Finding out who did this is more important than going on a witch hunt and arresting everyone firing a weapon," Blackburn said.
Holmes, the Cecil County sheriff's lieutenant, said charges against people known to have fired guns early Jan. 1 will be discussed with the state's attorney's office but detectives remain focused on finding the gun that killed Aaliyah.
"I don't think the police should have to hunt the person down," Blackburn said. "I think the person who did this should have enough guilt and remorse to come forward."