No charges in shooting death of boy, 9, who played with gun found in malfunctioning safe

No criminal charges will be filed in the shooting death of a 9-year-old Wichita boy who was playing with a loaded gun he got out of a locked safe.

Sedgwick County District Attorney Marc Bennett said Wednesday that no charges will be filed against either the 11-year-old who shot Roy’Ale Spencer in the face or the owner of the gun, who had stored it in a gun safe with a malfunctioning lock.

“This appears to be a very tragic situation, an accident though, where two very young boys got access to what they thought were BB guns,” Bennett said. “One of the boys pulled the trigger and shot accidentally his friend.”

Bennett said the facts of the investigation do not support criminal charges. His report gave the following description of what happened.

Wichita police officers were called at around 8:30 a.m. Jan. 21 to the scene of a shooting in the 2200 block of East MacArthur, in the Stonegate Mobile Home Park. The 911 caller told dispatchers that “(they) were playing around and did not think it was a real gun.”

Roy’Ale Spencer, 9, was found in the bedroom of a mobile home. Paramedics pronounced him dead at the scene.

Four other children were at the home at the time of the shooting: a 16-year-old boy, a 16-year-old girl, a 14-year-old girl and an 11-year-old boy. The 16-year-old boy was Roy’Ale’s brother.

The 11-year-old boy may have initially told the others that Roy’Ale had accidentally shot himself, according to police witness interviews, but it was determined that Roy’Ale was shot by the 11-year-old. The boy was Roy’Ale’s friend.

The 11-year-old boy told detectives that the boys got the guns out of the safe. They “had checked them to see if they were loaded by shaking them, prior to playing with them.”

Police found three long guns outside a metal safe: a Crossman 788 BB Scout,a Crossman Model 760 pellet rifle and a Harrington and Richardson Model 88 Topper 410 gauge shotgun.

A man and woman who lived at the home had left early that morning for work. When asked about the gun safe in his bedroom, the man told detectives that “the locking mechanism to the cabinet was not functioning properly and as a result, while it could be locked, keys other than the assigned key would open the cabinet.”

Bennett said there is no negligence criminal culpability in Kansas and that negligence is “a civil liability theory.”

“And I’m not suggesting this was negligent,” he said

Investigators concluded that one or both of the boys somehow got into the gun safe. They believed the guns inside to be BB guns and emptied them of the BBs. But when the 11-year-old boy held the shotgun and pulled the trigger, a single shotgun slug struck Roy’Ale in the face.

The Sedgwick County coroner determined the boy’s death to be a homicide, caused by a gunshot wound to the head.

“There is no indication the 11-year-old knew the weapon was a shotgun, as opposed to a BB gun, or that the weapon was loaded,” the DA’s report states. The boy did not pull “the trigger with any design to inflict bodily harm or death on Roy’Ale.”

“Kansas has no ‘safe storage’ law that would require specific security measures to be taken by gun owners to secure their firearms,” the report states. “While the locking mechanism for the gun safe in question may not have been functioning properly, there is no indication that the safe was either unlocked or incapable of being locked.”