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Monday, November 20, 1995 - Page updated at 12:00 AM

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Stolen Handgun Kills; Owner Is Sued -- Legal Battle Escalates Over The Rights Of Firearms Owners

Seattle Times Staff Reporter

A 16-year-old boy with a long criminal record steals a .44 Magnum from a Fall City home and travels to Des Moines, Iowa, where, within two months, he uses it to kill two restaurant employees in front of horrified customers.

It's not an unfamiliar scenario: a criminal, a stolen handgun, a murder.

But this case is a bit different.

The father of one of the Iowa victims thinks the gun owner is responsible, too, and has filed a wrongful death suit against him in King County Superior Court. Thomas McGrane of Iowa argues that Roger Cline of Fall City did not take enough precautions to protect the deadly weapon from the burglar.

The case appears to be the first of its kind in this area and spotlights the ever-widening legal battle over handguns.

The suit raises questions about whether a gun owner victimized by a burglary can be held liable for the stolen weapon and whether gun owners have any special responsibility because of the inherent dangerousness of firearms.

Dennis Henigan, an attorney for the Washington D.C.-based Center to Prevent Handgun Violence, said an Ohio appeals court last year ruled that a gun-show promoter could be held liable for the theft of one of his guns that was used by a juvenile to shoot and paralyze a Canton man. A jury ordered the promoter to pay about $400,000 in damages.

Henigan and other handgun-control proponents believe it is not that large a leap to extend the same responsibility to gun owners.

But Alan Gottlieb, head of the Bellevue-based Citizens Committee for the Right to Keep and Bear Arms, said he has heard of about 20 similar suits filed across the country the past decade and knows of none that has been successful.

The criminal act of the burglar distances the owner from liability, and the fact the gun was removed and used somewhere else makes the owner even less culpable, he said.

"My prediction is this suit won't go very far," he said.

There are roughly 70 million handguns in the U.S. and the Bureau of Alcohol Tobacco and Firearms estimates that roughly 200,000 are stolen each year.

In the Cline case, he and his wife went on a weekend trip in the fall of 1992, leaving their 15-year-old daughter at home. She invited friends to the house for a few hours. Among the small group was a boy she didn't know, Joseph Hodges White.

White entered the parents' bedroom, stole the gun and eventually used it in Iowa. He is serving a life sentence for the murders of Cara McGrane, 25, and Tim Burnett, 28.

The lawsuit, filed by Seattle attorney Michael Withey, contends Cline should have known the powerful weapon would be "enticing and attractive" to a young burglar and that by not taking more precautions, Cline and his wife essentially entrusted the weapon to the care of their teenage daughter.

Cline's attorney, Richard Lowell, said they will ask a judge to dismiss the suit before it gets to trial and will fight it all the way to the Supreme Court if necessary.

"This lawsuit attempts to create a new area of the law where victims of burglaries can be held liable," said Lowell. "Is every gun owner who has a weapon stolen responsible if someone gets hurt with it? What if someone steals your knife and stabs someone, or takes your prescription medicine and shoves it down someone's throat?

"This burglar was where he knew he had no right to be and took something he knew wasn't his."

Lowell said Cline's gun was kept inside a desk drawer of the couple's bedroom, which was in a detached and remodeled garage. The door was locked and there was no sign of obvious forced entry so White may have entered through a window.

Lowell said Cline's daughter had gone to a dance and was with a girlfriend about 3:30 a.m. when they met a boy they knew who was accompanied by White. The four went to the Cline home for about two hours and watched television and slept before Cline's daughter took the three guests to their respective destinations on her way to work.

Lowell said White could have burglarized the bedroom when the others were sleeping, but he believes it is more likely White returned after learning no one would be home.

The burglary occurred on Oct. 10, 1992. McGrane didn't notice the gun and ammunition were gone until Oct. 15. He reported it missing a week later.

On Nov. 29, 1992, White used it to murder the two victims.

Although the L.A.R. Grizzly .44 Magnum was never found, the unique markings on the bullets enabled police to rapidly trace it back to Cline. There were only 425 such guns in existence when the killings occurred and his had been reported stolen.

Cline testified at White's trial that the weapon was "very strong, very high-powered."

White is also named in the lawsuit, but has no assets.

While gun-rights advocates say the suit shifts personal responsibility from the criminal, McGrane's Iowa attorney, Roxanne Conlin, said it seeks to ensure responsibility to the public.

"If people are going to have guns," she said, "they have an obligation to society to make sure the weapons don't fall into the hands of people who kill us."

Copyright (c) 1995 Seattle Times Company, All Rights Reserved.

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