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NC appeals courts says unloaded guns don't violate safe storage laws, overturns conviction

"Beretta 92FS (left)" by storem is licensed under CC BY-SA 2.0.

An appeals court threw out convictions Tuesday against a North Carolina woman who was charged after a teenager fatally shot himself in her home, saying she was absolved because the weapon had been initially unloaded.

State law makes it a crime for a gun owner to improperly store a weapon at home so as to allow a child to show it off, commit a crime or hurt someone. But the law can only be applied if the weapon is loaded, according to a unanimous ruling of a three-judge panel of the intermediate-level state Court of Appeals.

A trial judge had found Kimberly Cable guilty of involuntary manslaughter and two misdemeanor safe firearm storage counts in 2022. She was sentenced to three years of probation.

On July 2018, Cable's son had another boy — both of them 16 years old — over at his house for the night, according to case documents. At 2 a.m., her son went in the bedroom of Cable and her husband as they were sleeping and retrieved an unloaded .44-caliber Magnum revolver that authorities say Cable possessed and a box of ammunition, both laying on top of an open gun safe.

The son showed his friend the revolver and placed it and the ammo on the top of a gun safe in his bedroom. The friend then asked the son if he wanted to play Russian roulette. The friend quickly put a bullet in the revolver, pointed it at himself and fired, dying instantly, the documents said.

Police found 57 other firearms in the home, according to the opinion. Shortly thereafter, Cable and her husband — a gunsmith — were charged in connection with the shooting.

While Kimberly Cable’s appellate lawyer also questioned the constitutionality of the safe-storage for minors law, Tuesday’s ruling focused on arguments that prosecutors failed to prove that Cable stored the firearm involved in the shooting “in a condition that the firearm can be discharged,” as the criminal count requires.

Court of Appeals Judge Jefferson Griffin, who wrote the panel’s opinion, said the appeals court had never interpreted the phrase before and it was ambiguous.

He said past and present criminal law, combined with a legal rule that favors defendants for ambiguous laws, leads to the conclusion that the phrase means the firearm must be loaded.

That means Cable’s revolver was not stored in violation of the law, he wrote. The second similar firearm storage conviction against her also was reversed because there was no evidence to suggest a minor gained access to other weapons, and the involuntary manslaughter conviction was vacated because the safe-firearm conviction involving the revolver was reversed, Griffin said.

Court of Appeals Judges Hunter Murphy and Michael Stading agreed with the opinion written by Griffin, who is running for state Supreme Court this fall. The state Attorney General's Office defended the safe-storage law as constitutional and argued that the gun was in a condition that it could be discharged.

“Although the revolver was unloaded, it was operable and in working condition on the evening in question, without any safety device preventing it from being able to fire," Solicitor General Ryan Park wrote in a brief last September. The state could ask the state Supreme Court to review Tuesday's decision.