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STATE OF MICHIGAN

IN THE MICHIGAN SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, Supreme Court No.

v COA Docket No.: 362211

Lower Court No.: 22-279990-FH

JENNIFER LYNN CRUMBLEY,

Defendant-Appellant.

KAREN D. McDONALD (P59083) SHANNON M. SMITH (P68683)

Prosecuting Attorney Attorney for Defendant-Appellant
Attorney for Plaintiff-Appellee Shannon Smith Law, P.C.
Oakland County Prosecutor’s Office 1668 S. Telegraph Road, Suite 200
1200 N. Telegraph Road Bloomfield Hills, MI 48302
Pontiac, MI 48341 (248) 636-2595
(248) 858-0656

DEFENDANT-APPELLANT’S APPLICATION FOR LEAVE TO APPEAL TO THE

MICHIGAN SUPREME COURT

*** ORAL ARGUMENT REQUESTED ***

SHANNON M. SMITH (P68683)

Attorney for Defendant-Appellant
Shannon Smith Law, PC
1668 S. Telegraph Road, Suite 200
Bloomfield Hills, MI 48302
(248) 636-2595

Dated: May 17, 2023

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TABLE OF CONTENTS

INDEX OF AUTHORITIES……………………………………………………………………ii

JUDGMENT APPEALED FROM AND RELIEF SOUGHT……………….……………….iv

STATEMENT OF QUESTIONS PRESENTED………………………………………………v

STATEMENT OF FACTS AND PROCEEDINGS……………………………………………1

I. The trial court abused its discretion in declining to quash the

Information against Defendants because the prosecution cannot
demonstrate causation, where the intentional misconduct of EC
constitutes an intervening cause, EC’s criminal conduct was the
“sole cause of harm” to the victims, and the mass shooting
perpetrated by EC was not reasonably foreseeable……………………..……15

Issue Preservation and Standard of Review……………………………..……15

Law and Argument……………………………………………………………..16

A. The trial court abused its discretion in declining to

quash the Information against Defendants because
the prosecution cannot demonstrate causation, where
the intentional misconduct of EC constitutes an
intervening cause, and EC’s criminal conduct was
the sole cause of harm to the victims………………………..…16

B. The trial court abused its discretion in declining to

quash the Information against Defendants because
the prosecution cannot demonstrate causation, where
the mass shooting perpetrated by EC was not
reasonably foreseeable. ……………………………………….21

CONCLUSION AND RELIEF REQUESTED………………………………………..…….24

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INDEX OF AUTHORITIES

Cases

Brown v Brown, 478 Mich 545; 739 NW2d 313 (2007)…………………………………21, 22, 24

Hamed v Wayne County, 490 Mich 1; 803 NW2d 237 (2011)…… ………………………...…..24

Houston v State, 70 So2d 338, 339 (Miss, 1954)…… ………………………………………..…20

MacDonald v PKT, Inc, 464 Mich 322; 628 NW 2d 33 (2001)…… ………………………..….22

Moskal v United States, 498 US 103 (1990)…… …………………………………………...…..21

People v Babcock, 469 Mich 247; 666 NW2d 231 (2003)……… ………………………….…..16

People v Barnes, 182 Mich 179; 148 NW 400 (1914)… ……………………………………….17

People v Bailey, 451 Mich 657, 676; 549 NW2d 32 (1996)…… ……………………….…..19, 20

People v Campbell, 237 Mich 424; 212 NW 97 (1927)… …………………………………..….17

People v Duncan, 494 Mich 713; 835 NW2d 399 (2013)…… …………………………………16

People v Elder, 100 Mich 515; 59 NW 237 (1894)…… ………………………………………..19

People v Feezel, 486 Mich 184; 783 NW2d 67 (2010)…… …………………………….….16, 17

People v Hudson, 241 Mich App 268; 615 NW2d 784 (2000)…… …………………….….20, 21

People v Norwood, 303 Mich App 466; 843 NW2d 775 (2013)…… ……………………….….16

People v Redden, 290 Mich App 65; 799 NW2d 184 (2010)…… ……………………..…….3, 16

People v Schaefer, 473 Mich 418; 703 NW2d 774 (2005)…… ……………………….……16, 17

People v Scott, 29 Mich App 549; 185 NW2d 576 (1971)..……… ……………………………..19

People v Selwa, 214 Mich App 451; 543 NW2d 321 (1995)…… ………………………………20

People v Sobczak, 344 Mich 465; 73 NW2d 921 (1955)……… ………………………………..19

People v Zak, 184 Mich App 1; 457 NW2d 59 (1990)…… ………………………...…..18, 19, 20

Tarlea v Crabtree, 263 Mich App 80; 687 NW2d 333 (2004)…… …………………………….24

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Other Authorities

40 CJS, Homicide, § 11 b, p 854………………………………………………………….……..18

57A Am Jur 2d Negligence § 125……………………………………………………..…………21

Black's Law Dictionary (8th ed)…… ………………………………………………………..….17

“Criminal Responsibility for the Acts of Another,” 43 Harvard Law Review 689, 716 (1930)...19

M Crim JI 16.10……………………………………………………………………………...…..16

M Crim JI 16.13…………………………………………………………………………….……16

Wharton on Homicide, § 28, p 31………………………………………………………………..18

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JUDGMENT APPEALED FROM AND RELIEF SOUGHT

Defendant-Appellant Jennifer Lynn Crumbley appeals from the March 23, 2023 Order

from the Michigan Court of Appeals finding that the district court did not abuse its discretion in

binding Defendant over for trial. (People v Crumbley (On Remand), ___ Mich App ___; ___

NW2d ___ (2023) (Docket Nos. 362210 and 362211), attached as Appendix A). This Application

is being filed within 56 days of the Court of Appeals’ Order as required by MCR 7.302(B)(3).

Mrs. Crumbley seeks review because the Court of Appeals’ decision is clearly erroneous,

will cause injustices, and conflicts with Michigan Court of Appeals and Supreme Court precedent.

MCR 7.302(B)(5). The issues raised also involve legal principles of major significance to the

state’s jurisprudence. MCR 7.302(B)(3). Further, the issue presented herein is dispositive and

should be determined prior to trial.

Defendant-Appellant, therefore, respectfully requests this Honorable Court to grant her

application for leave to appeal or order other appropriate relief.

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STATEMENT OF QUESTIONS PRESENTED

Whether the trial court abused its discretion in declining to quash the Information against
Defendants because the prosecution cannot demonstrate causation, where the intentional
misconduct of EC constitutes an intervening cause, EC’s criminal conduct was the “sole cause of
harm” to the victims, and the mass shooting perpetrated by EC was not reasonably foreseeable?

Defendants Answer: Yes.

The People Answer: No.

The Trial Court Answers: No.

The Court of Appeals Answers: No.

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STATEMENT OF FACTS AND PROCEEDINGS

On Tuesday, November 30, 2021, fifteen-year-old EC perpetrated a mass shooting at

Oxford High School, located in Oxford Township, Michigan. At approximately 12:51 p.m., EC

emerged from a bathroom and began firing into a hallway. On that fateful day, EC killed four of

his classmates and injured seven others, including one teacher. On December 1, 2021, Oakland

County Prosecuting Attorney Karen McDonald (hereinafter Prosecutor McDonald) announced

that her office was charging EC as an adult with one count of terrorism causing death, four counts

of first-degree murder, seven counts of assault with intent to murder, and twelve counts of use of

a firearm during the commission of a dangerous felony.1 (12/1/21 press conference at 3:45).

Not surprisingly, the horrific events of November 30, 2021 sparked national outrage and

generated state-wide calls to strengthen gun safety legislation.2 During her initial press conference,

Prosecutor McDonald acknowledged that “we have watched school shootings unfold in

communities across this country for far too long,” and that “to prevent further tragedies like the

one we witnessed yesterday, and at large, we have got to address responsible gun ownership in

this country and in Oakland County.” (12/1/21 press conference at 1:15, 6:22). Prosecutor

McDonald made it clear that she would “speak out and say that we need better gun laws.” (Id. at

11:15). She continued by stating that because “we really can’t train ourselves out of this tragedy[,]”

1
Oakland County Prosecuting Attorney Karen McDonald’s press conference, Dec. 1, 2021,
available at: https://www.clickondetroit.com/news/local/2021/12/01/live-stream-oakland-county-
prosecutors-office-announces-charges-in-oxford-high-school-shooting/, hereinafter 12/1/21 press
conference.
2
See Krause, Sheldon. “House Democrats discuss gun safety legislation in wake of Oxford
hooting.” State News, Jan. 11, 2022, available at https://statenews.com/article/2022/01/house-
democrats-discuss-gun-safety-legislation-in-wake-of-oxford-shooting?ct=content_open &c=cbox
_latest;

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“we have to address the fact that people should be held accountable who own guns and are not

responsible.” (Id. at 12:40).

Two days later, EC’s parents, James and Jennifer Crumbley were charged with four counts

of involuntary manslaughter.3 (12/3/21 press conference at 2:02). In announcing the charges,

Prosecutor McDonald stated that “[w]hile the shooter was the one who entered the high school and

pulled the trigger, there [were] other individuals who contributed to the events on November 30th,

and it’s my intention to hold them accountable as well.” (Id. at 1:30). She continued, “[i]t’s

imperative we prevent this from happening again.” (Id.). Thus, the charges, in part, were meant to

“send a message that gun owners have a responsibility.” (Id. at 7:48).

On February 8, 2022, and February 24, 2022, a preliminary examination in the matter was

held, and in part, the prosecution sought to demonstrate:

• That in the days leading up to EC committing the murders, Mr. Crumbley purchased
the firearm EC used to kill the victims;

• That Mr. and Mrs. Crumbley failed to properly secure the firearm that EC used to
commit the murders and knew that EC had access to the firearm;

• That Mr. and Mrs. Crumbley were largely indifferent as parents and disregarded
the fact that EC was experiencing mental health issues;

• That Mr. and Mrs. Crumbley, after learning of the school shooting, both suspected
EC was the shooter;

• That Mr. and Mrs. Crumbley should have uncovered EC’s journal, wherein he
repeatedly referenced a school shooting, as well as other videos and social media
posts made by EC, evidencing a fascination with firearms; and,

3
Oakland County Prosecuting Attorney Karen McDonald’s press conference, Dec. 3, 2021,
available at: https://www.freep.com/story/news/local/michigan/oakland/2021/12/03/oxford-high-
school-shooting-oakland-county-prosecutor-karen-mcdonald/8854395002/, hereinafter 12/3/21
press conference.

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• That Mr. and Mrs. Crumbley could have taken EC home when they learned of the
disturbing drawings EC made on his math homework.4

To assess whether or not the premeditated murders committed by EC were foreseeable, however,

it is important to distinguish between information Mr. and Mrs. Crumbley were aware of on

November 30, 2021, and the highly disturbing information EC’s parents only learned of after EC

perpetrated the school shooting.

Preliminary Examination Evidence Presented of Facts Known to Jennifer and James

Crumbley on November 30, 2021

At the preliminary examination, and assumedly to demonstrate that Mr. and Mrs. Crumbley

were aware or should have been aware of EC’s mental health needs, the prosecution offered into

evidence certain text messages EC sent to his parents in March of 2021, more than eight months

prior to the shooting.

On March 9, 2021, EC wrote to his mother, “Can you get home now[,]” and “There is

someone in the house I think[.]” (Preliminary Examination “PE” Exh 22). EC went on to explain

that while no one was in the house, he heard the toilet flush and heard his door slam. (Id.). EC

attributed what he heard to his “parinoa [sic].” (Id.). One week later, on March 17, 2021, EC sent

additional text messages to his mother stating that he believed their home was haunted. (PE Exh

23). As per EC, he obtained videos of “weird” things happening in the home and a photograph of

a demon. (Id.).

Approximately two days later, Mrs. Crumbley texted Mr. Crumbley, asking him how EC

was doing, and Mr. Crumbley responded that “[EC] woke up looking like he had WAY too much

4
As required to litigate certain dispositive motions, for purposes of this instant motion only, the
defense accepts the prosecution’s allegations as true. (See People v Redden, 290 Mich App 65, 83;
799 NW2d 184 (2010) (“When a defense is complete and there are no conflicting facts regarding
the defense, it could be argued that there was no probable cause to believe that a crime had been
committed.” (citation omitted)).

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to drink last night” and was “complaining about a headache.” (PE Exh 28). Mrs. Crumbley

responded, “[w]ell he was really worked up and out of control so I can see why.” (Id.). Mrs.

Crumbley continued by stating, “[a]ll I know is, he needs to eat, go to work and work hard and not

complain and he can get all his stuff back[.]” (Id.). Mr. Crumbley then relayed that when EC awoke

that morning, he did not remember why he was sleeping in his parents’ room. Mrs. Crumbley

responded, “OMG[,]” and Mr. Crumbley stated, “I totally thought you were giving him Xanax last

night.” (Id.). Mrs. Crumbley responded that she gave EC melatonin, a natural sleep aid. (Id.). Two

days later, on March 20, 2021, EC sent text messages to his mother indicating that he cleaned his

room but believed clothes to be flying off shelves. (PE Exh 23).

The prosecution also introduced text messages between EC and a friend, recounting EC’s

representation that he had spoken with his parents about seeing people who were not real and his

intention to inform his parents at some time in the future that he should see a doctor. (PE Exh 29).

In the same conversation, EC explained to his friend that he had not told his parents he was hearing

voices. (Id.). The context of the text exchange between the teenagers, when drawing all reasonable

inferences in favor of the prosecution, also suggests that EC had previously asked his parents to

take him to the doctor. As per EC, however, Mr. Crumbley gave him pills and told him to “suck it

up[,]” and Mrs. Crumbley allegedly laughed at him because she did not believe he had mental

health issues. (Preliminary Examination Transcript Vol. 2 “PE Tr II,” 68). In the same

conversation, EC explained to his friend that his mother “thinks the reason why I’m so mad and

sad all the time is because I take drugs and she doesn’t worry about my mental health.” (PE Tr II,

67). Again, these text exchanges between EC and his friend occurred in April of 2021, more than

seven months prior to the shooting.

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The prosecution also introduced evidence via the testimony of Mrs. Crumbley’s friend,

Kira Pennock, that at some point prior to the shooting, Mrs. Crumbley represented to Ms. Pennock

that EC “needed to get some counseling.” (Preliminary Examination Transcript Vol. 1 “PE Tr I,”

77). As per Ms. Pennock, Ms. Crumbley “mentioned [EC’s] dog, a family pet, had passed away

and a grandparent has passed away recently and she felt like she was failing or failed him.” (Id.).

According to Ms. Pennock, Mrs. Crumbley did not speak about her son often but did express

concern that EC “only had one friend, and he spent a lot of time online or playing games[.]” (PE

Tr I, 32). Ms. Pennock also testified that Mrs. Crumbley indicated that EC “seemed to keep to

himself” and believed “it was weird that he wasn’t out doing things like a normal kid.” (Id.). A co-

worker of Mrs. Crumbley likewise testified that Mrs. Crumbley described EC as “quiet” and was

“concerned [EC] would be lonely” after his friend moved away. (PE Tr I, 132).

In terms of the firearm that EC used to perpetrate the school shooting, the prosecution

introduced evidence that on November 26, 2021, Mr. Crumbley and EC went to gun shop where

Mr. Crumbley purchased a nine-millimeter SIG Sauer handgun. (PE Tr II, 79-92). While the form

Mr. Crumbley signed when purchasing the firearm indicated that purchasing a gun for someone

else was illegal, Mr. Crumbley was also provided with a Youth Handgun Safety Act Notice,

indicating that “a temporary transfer of a handgun or ammunition to a juvenile” does not violate

federal law where the “the handgun or ammunition are possessed and used by the juvenile…in

accordance with State and local law[.]” (PE Tr II, 82; PE Exh 79). The store where the firearm was

purchased also provided Mr. Crumbley with a cable lock, which “locks the pistol” by “going

through the trigger.” (PE Tr II, 86).

Later that same day, EC posted two photos and a video to his Instagram account. Both

photographs were of the SIG Sauer, and the video showed EC holding up the gun. (PE Exhs 13,

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17). The caption on EC’s Instagram posts states, “Just got my new beauty today [heart eyes emoji]

SIG SAUER 9mm. Ask any questions I will answer.” (PE Exh 13).

The next day, Mrs. Crumbley took EC to a shooting range, and EC posted on his Instagram

account a photograph of a target with bullet holes through it and with a caption stating: “Took my

new Sig out to the range today. Definitely need to get used to the new sites [sic] lol[.]” (PE Tr II,

174-182; PE Exh 13). Mrs. Crumbley posted photographs of the paper target and the gun in its

case on her own Instagram account with the caption, “Mom & son day testing out his new Xmas

present. My first time shooting a 9mm I hit the bullseye.” (PE Exh 16). Although there is not a

way to verify whether Mr. or Mrs. Crumbley saw EC’s Instagram posts, their cell phone records

demonstrate that they followed EC’s account.

On November 29, 2022, when EC was at school, a teacher saw him looking at handgun

ammunition on his cell phone. (PE Tr II, 109-112). The teacher informed Mr. Ejack, Dean of

Students, who forwarded the message to EC’s school counselor, Shawn Hopkins, and another

school official. Hopkins and the school official met with EC that day for approximately five

minutes and asked him about looking at the ammunition on his cell phone. EC explained to his

school counselor and the school official that he was looking at ammunition because “the previous

weekend Mom and him went to a gun range and went shooting, that it was a hobby that they

participated in and he was researching regarding that hobby.” (PE Tr II, 110). At the meeting, EC

was cooperative and stated that he understood that looking at ammunition was not school

appropriate behavior. (PE Tr II, 110). As per Mr. Hopkins, EC “had no behavior incidents reported

at school” and the meeting ended in a positive manner, given that EC “was understanding of the

appropriateness of school behavior based on [his] response, and there was no necessary follow

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through after the meeting.” (PE Tr II, 112). A school official left Mrs. Crumbley a voicemail

making her aware of the meeting but said she did not need to call back. (PE Exh 9).

After Mrs. Crumbley received the voicemail, she texted EC, “Seriously?? Looking up

bullets in school??” (PE Exh 10). EC responded that he had already been to the office and that “all

I did was look up a certain caliber at the end of class because I was curious[.]” (Id.). EC likewise

represented that the incident was “[c]ompletely harmless[.]” (Id.). As for the meeting, EC texted

his mother that “I understood why I [sic] they talked to me and they said they [sic] that is m [sic]

good[.]” (Id.). Mrs. Crumbley responded that EC was not in trouble and added, “Did you at least

show them a pic of your new gun?” (Id.) EC responded, “No I didn’t show them the pic my god”;

“I only told them I went to the range with you on Saturday”; “It was a harmless act”; and “I have

this bullet cartridge in my room that I didn’t [sic] what kind of Bullet it was and it said it was 22

so at the end of first hour I just looked up different types of 22 bullets and I guess the teachers

can’t get their eyes of [sic] my screen [shaking my head][.]” (Id.). Mrs. Crumbley responded, “Lol

I’m not mad, you have to learn not to get caught.” (Id.). EC texted back, “(I know) lol” with

laughing emojis. (Id.). EC continued, “I just didn’t want something this little to get me in trouble

because…well I didn’t want to get in trouble lol[.]” (Id.).

On the morning of Tuesday, November 30, 2021, Mr. and Mrs. Crumbley were again

contacted by EC’s school when Mr. Hopkins left voicemails for both parents. When Mrs.

Crumbley returned Mr. Hopkins’ call, she was asked to come to the school to discuss EC. Mr.

Hopkins also forwarded Mrs. Crumbley, while they were speaking, two photographs of a math

worksheet on which EC had made concerning drawings. One photograph depicted EC’s original

math worksheet, where EC had drawn pictures of a gun, a person being shot, and a bullet. (PE Exh

7). He had also written on the assignment, “My life is useless”; “The world is dead”; “The thoughts

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won’t stop help me”; and “Blood everywhere.” (Id.). The second photograph was of the math

worksheet after EC had attempted to make modifications. (PE Exh 78). On the modified

worksheet, EC scribbled over his drawings of the gun and person being shot, and he scratched out

his writings. EC added to the worksheet, “RMX 80”; “video game this is”; “harmless act”; “I love

my life so much!!!”; “OHS Rocks!”; and “We all friends Here[.]” (Id.).

That same morning, a teacher observed EC looking at a video on his phone of some sort of

shooting. (PE Tr II, 112). As per EC’s teacher, the video did not depict an actual shooting, and EC

explained to his counselor that the video of the shooting was of a video game. (PE Tr II, 112).

Regarding the drawing on the math worksheet, EC told his counselor that the drawings were also

representative of a video game and that he had an interest in designing video games after high

school. (PE Tr II, 115). When pressed further, EC “became sad” and told his counselor about how

his dog had died, that he had lost a grandparent, that COVID had been difficult for him, and that

he had a friend who had moved and was not able to attend school anymore. (PE Tr II, 117). EC

also indicated that the night previously he had argued with his parents about his grades. (PE Tr II,

117). As per Mr. Hopkins, this raised concerns that EC was suffering from suicidal ideation. (PE

Tr II, 117).

Soon after the phone call to EC’s parents, Mrs. Crumbley attempted to contact Mr.

Crumbley via Facebook messenger, stating at 9:33 a.m., “Call NOW. Emergency.” (PE Exh 18).

Thereafter, Mrs. Crumbley forwarded to Mr. Crumbley photographs of both math worksheets.

(Id.). Mr. Crumbley responded at 9:44 a.m., “my God, WTF.” (Id.). Mr. Crumbley then informed

Mrs. Crumbley that he was still waiting on a veterinarian to see one of their sick horses. Mrs.

Crumbley stated to Mr. Crumbley that EC “said he was distraught about last night[,]” and Mr.

Crumbley responded, “We talked about it this morning[.]” (Id.). Mrs. Crumbley then asked Mr.

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Crumbley to call her because she was driving to the school, adding, “I’m very concerned[.]” (Id.).

Mr. and Mrs. Crumbley then spoke on their cell phones for approximately seven minutes. (PE Tr

I, 222).

Mr. and Mrs. Crumbley arrived at Oxford High School at approximately 10:30 a.m. and

reported to the counseling office. (PE Tr II, 124). Once in his office, Mr. Hopkins explained to Mr.

and Mrs. Crumbley that he “was concerned about [EC], that he had stated that he was not a threat

to himself, but [Mr. Hopkins] had concerns about suicidal ideation and [he] had concerns about

[EC’s] well-being.” (PE Tr II, 127). Mr. Hopkins also stated to EC’s parents that “though [EC]

state[d] he’s not a threat[,]” Mr. Hopkins was “concerned that [EC] needs somebody to talk to for

mental health support.” (PE Tr II, 128). Mr. Hopkins told Mr. and Mrs. Crumbley that this needed

to happen “as soon as possible” and “today if possible.” (Id.). As per Mr. Hopkins, however, Mrs.

Crumbley responded, “Today is not possible. We have to return to work.” (Id.). While Mr. Hopkins

testified that he was “a little taken aback” by Mrs. Crumbley’s statement, he did not demand that

EC be removed from the school and instead indicated that he wanted EC “seen within 48 hours.”

(PE Tr 130). Mr. and Mrs. Crumbley were reportedly “compliant” with this request. (Id.). As per

Mr. Hopkins, his main concern at the time was that he did not want EC to be alone because of his

assessment that EC was exhibiting suicidal ideation. (Id.).

Surveillance footage showed Mr. and Mrs. Crumbley leaving Oxford High School at 10:54

a.m. and driving out of the school parking lot at 10:56 a.m. Thereafter, Mrs. Crumbley contacted

her friend at a barn where she rode horses and told her friend that she had just met with EC’s

counselor. (PE Exh 6). Mrs. Crumbley wrote to her friend that she would still be attending her

riding lesson that evening and was planning to bring EC with her because “he can’t be left alone.”

(Id.). Mrs. Crumbley stated to her friend, “[E]verything’s okay he’s just having a hard time after

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losing tank[,] his friend going away to a treatment facility[,] and who knows what else[,] but he

was caught drawing this on a math assignment today. (Id.). Mrs. Crumbley then sent her friend a

photograph of EC’s math worksheet. At the same time, Mr. Crumbley logged onto DoorDash and

accepted his first delivery job. (PE Tr I, 229). Mrs. Crumbley also returned to work, where she

spoke with co-workers about the school meeting. (PE Tr I, 136-137).

While at work, at 12:21 p.m. on November 30, 2021, Mrs. Crumbley texted her son, “You

ok?” (PE Exh 10). EC responded, “Yha [sic] I just got back from lunch[.]” (Id.). His mom then

wrote to him, “You know you can talk to us and we won’t judge[.]” (Id.). At 12:42 p.m. EC

responded, “[I know] thank you. I’m sorry for that. I love you[.]” (Id.). Fewer than 10 minutes

after sending that message, EC went into a bathroom with his backpack, came out with the SIG

Sauer, and murdered four of his classmates, while also injuring six other students and one teacher.

By 12:58 p.m., the shooting was over.

Mrs. Crumbley learned that there was an active shooter at Oxford High School while still

at work, and in response, started screaming. (PE Tr I, 80). Mr. Crumbley began repeatedly calling

and texting EC. (PE Tr II, 53). At 1:18 p.m., Mrs. Crumbley texted EC “I love you too[,]” “You

ok?[,]” and “[EC] don’t do it[.]” (PE Exh 10). Mr. Crumbley then drove home in an attempt to

locate the gun and ammunition. At 1:23 p.m., Mrs. Crumbley texted a co-worker, “The gun is gone

and so are the bullets[.]” (PE Exh 8). At 1:34 p.m., Mr. Crumbley called 911, and, panicking,

informed the operator that his son was a student at Oxford High School and that “I have a missing

gun at my house.” (PE Exh 5). Around the same time, Mrs. Crumbley called a co-worker and

franticly informed him that “their gun was missing” and that her husband had called the police.

(PE Tr I, 83). Thereafter, Mrs. Crumbley texted her co-worker, “OMG. Andy, he’s going to kill

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himself. He must be the shooter.” (PE Tr I, 84). She followed with “I need a lawyer at substation

with police[,]” and “[EC] did it.” (Id.).

On that same day, police executed a search warrant at the Crumbley home. In Mr. and Mrs.

Crumbley’s bedroom, Detective Adam Stoyek found the gun case for the SIG Sauer open on the

bed next to an empty box of nine-millimeter ammunition. (PE Exh 43). Within the bedroom, a

handheld gun safe in a dresser drawer was also located. (PE Exh 47). While at the scene, Mr.

Crumbley informed law enforcement that the code to unlock the gun safe in the dresser was zero-

zero-zero. (PE Tr II, 192, 194). Within the safe was a single-shot .22 Derringer handgun and a .22

caliber Kel-Tec semiautomatic handgun. (PE Tr II, 194). Throughout the search of the home, law

enforcement did not find any firearm cable locks that were broken or tampered with. (PE Tr II,

197).

Preliminary Examination Evidence Presented of Facts NOT Known to

Jennifer and James Crumbley on November 30, 2021

At the preliminary examination, evidence was offered by the prosecution establishing that

as early as April 5, 2021, EC believed he was having a mental breakdown and was hearing voices.

(PE Exh 29). At the same time, EC expressed to his friend that he was “mentally and physically

dying.” (Id.). On August 20, 2021, EC joked with the same friend about committing a school

shooting. (PE Exh 32). Three months before the shooting, EC sent his friend a video showing him

loading a magazine into the .22-caliber Kal-Tec semiautomatic handgun registered to Mr.

Crumbley. (Exh 31; PE Tr I, 258). EC’s friend responded, “niiice,” and then wrote “now pull the

trigger”; “Jkjkjkjk[.]” (Exh 32). EC replies: “My dad left it out so I thought, ‘Why not’ lol[,]”; “[I

know] gun safety so it’s no problem,[]”; “Now it’s time to shout up the school[,]” and

“JKJKJKJKJK[.]” (Id.). During review of the data extraction on EC’s phone, law enforcement

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also became aware of text messages with EC’s friend wherein the two discussed kidnapping and

killing another classmate, as well as videos of EC killing and mutilating baby birds. (PE Trans I,

264). No evidence was offered, however, that either Mr. and Mrs. Crumbley saw of the text

messages between EC and his friend.

After the school shooting, law enforcement also recovered a journal from EC’s backpack.

(PE Tr II, 222-223). Within the journal, EC wrote extensively about the Oxford School shooting

and his plans to commit the shooting. (PE Tr II, 224). In fact, he referenced perpetrating the school

shooting on every single one of the journal’s 21-pages. (PE Tr II, 224). In one entry, EC wrote that

he “got my gun” and the “shooting is tomorrow[.]” (PE Tr II, 226). He also indicates, “I have

access to the gun and ammo[.]” (PE Tr II, 226). EC also drew a picture in the journal of a

semiautomatic handgun firing a round in the back of a head with ponytail. (PE Tr II, 227). Just

above, EC wrote, “[T]he first victim has to be a pretty girl with a future so she can suffer like me.”

(PE Tr II, 227). On another page, EC wrote in all capital letters, “I will kill everyone I f**king

see[,]” and “I will cause the biggest school shooting in Michigan’s history[.]” (PE Tr II, 228). He

also states, “I have fully mentally lost it after years of fighting with my dark side. My parents won’t

listen to me about help or a therapist.” (PE Tr II, 228). EC also wrote, “I have zero help for my

mental problems and it’s causing me to shoot up the fucking school.” (PE Tr II, 228).

To his parents, EC wrote in the journal, “I’m sorry for this, Mom and Dad. I’m not trying

to hurt you by doing this. I have to do this.” (PE Tr II, 231-232). He also wrote, “I love you, Mom.

I love you, Dad. I’m sorry for never saying it back[,]” and “I hope my parents forgive me for what

I do.” (PE Tr II, 232). In the journal’s final entry, EC writes in large, bold letters, “Forgive me.”

(PE Tr II, 225).

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In reviewing EC’s web search history, law enforcement also became aware that in

November of 2021, EC visited a website depicting graphic content in connection with school

shootings four hundred and twenty-one times. (PE Tr I, 264-265). No evidence was offered at the

preliminary examination, however, that either Mr. or Mrs. Crumbley were aware of the contents

of EC’s journal or his fascination with school shootings.

Procedural History

The prosecution argued alternate theories at the preliminary examination, claiming it had

established probable cause for the involuntary manslaughter charges in two ways: the first being

gross negligence in the performance of a lawful act, and the second being gross negligence in the

failure to perform a legal duty. (PE Tr II, 242).

Ultimately, Mr. and Mrs. Crumbley were bound over on all four counts of involuntary

manslaughter. (See PE Tr II, 264-270, attached as Appendix B). In so holding, the Honorable Julie

Nicholson relied heavily on People v Head, 323 Mich App 526; 917 NW2d 752 (2018), where the

Court of Appeals upheld a father’s conviction for involuntary manslaughter after his ten-year-old

daughter found a loaded gun within the family home and accidentally shot and killed her nine-

year-old brother. (PE Tr II, 266).

Thus, the district court determined that “the deaths of the four victims could have been

avoided if the Mr. and Mrs. Crumbley exercised ordinary care and diligence in the care of their

son.” (PE Tr II, 269). The court stated:

Specifically, the Court finds that the prosecutor has shown by a probable cause
standard that, one, the defendant’s son [EC], presented a danger to the community;
number two, that the danger was apparent to an ordinary mind; number three, that
the defendants James and Jennifer Crumbley neglected to diligently address and/or
divert that danger; and, number four, that the danger resulted in the four deaths of
the young children at Oxford High School.

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There was extensive testimony that [EC] was certainly a troubled young man and
that the defendants had knowledge of that situation, but they purchased a gun which
he believed was his and that he was free to use. Therefore, the Court is binding the
defendants over as charged. (PE Tr II, 269-270).

Once the case was bound over to the circuit court, Mr. and Mrs. Crumbley filed a Motion to Quash.

(attached as Appendix C).

Defendants’ Motion to Quash, in part, contended that the district court abused its discretion

in finding probable cause to bind Mr. and Mrs. Crumbley over due to the fact that the prosecution

could not, as a matter of law, demonstrate causation where the intentional misconduct of EC was

an intervening cause and the sole cause of harm to the victims. The People responded to

Defendants’ Motion to Quash, and on June 22, 2022, the trial court issued an opinion and order

denying Defendants’ Motion. (People’s Response, attached as Appendix D, and Order of the

circuit court, attached as Appendix E). In relevant part, the circuit court explained:

The Court concludes that sufficient evidence has been presented to allow a
reasonable juror to find factual causation and to allow a reasonable juror to
conclude that the deaths of the victims were a direct and natural cause of the
Defendants’ gross negligence. The Court further concludes that the criminal
misconduct of the Defendants’ son was an intervening cause but that reasonable
juror could conclude that his actions were reasonably foreseeable. Therefore, the
causal link between Defendants’ action and their liability for the deaths of the
victims, as alleged by the People, is not severed by the actions of their son. A
reasonable juror could conclude that the action of the Defendants’ son was a related
link in the casual chain. (Appendix E, at 4-5).

Defendants filed an Interlocutory Application for Leave to Appeal with the Court of

Appeals on July 18, 2022, and the Court issued an order denying their Applications on September

14, 2022. (Appendix F). On October 9, 2022, Defendants filed an Application for Leave to this

Court, seeking review. On November 29, 2022, this Court issued an order remanding the matter to

the Court of Appeals for consideration as on leave granted, limited to whether there was sufficient

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evidence of causation to bind the defendants over for trial on the charges of involuntary

manslaughter. (Appendix G).

On December 27, 2022, Defendants filed their respective Briefs on Appeal to the Court of

Appeals, the People responded on January 17, 2023, and on February 6, 2023, Defendants replied.

Oral arguments were held on March 7, 2023.

On March 23, 2023, the Court of Appeals issued an Opinion and Order finding that the

“district court did not abuse its discretion in determining EC’s decision to shoot four classmates

was not a superseding cause because it ‘was foreseeable based on an objective standard of

reasonableness.’ ” Appendix A, at 17, quoting People v Schaefer, 473 Mich 418, 437; 703 NW2d

774 (2005). In so holding, the Court of Appeals concluded that while this Court may have used

expansive language when discussing whether intentional misconduct on the part of a third party is

considered sufficient to break the causal chain between the defendant and the victim, in this case,

EC’s intentional misconduct did not supersede Mr. and Mrs. Crumbley’s acts being a cause of the

victims’ deaths. (Appendix A, at 14-15).

Thus, Defendants now file this timely Application for Leave to Appeal to the Michigan

Supreme Court.

I. THE TRIAL COURT ABUSED ITS DISCRETION IN DECLINING TO QUASH

THE INFORMATION AGAINST DEFENDANTS BECAUSE THE
PROSECUTION CANNOT DEMONSTRATE CAUSATION, WHERE THE
INTENTIONAL MISCONDUCT OF EC CONSTITUTES AN INTERVENING
CAUSE, EC’S CRIMINAL CONDUCT WAS THE “SOLE CAUSE OF HARM” TO
THE VICTIMS, AND THE MASS SHOOTING PERPETRATED BY EC WAS NOT
REASONABLY FORESEEABLE.

ISSUE PRESERVATION / STANDARD OF REVIEW

Mr. and Mrs. Crumbley litigated a Motion to Quash in the circuit court, and the issue is

preserved. In the context of reviewing a district court's bindover decision, the order on appeal is

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the circuit court's decision denying the motion to quash, which is reviewed de novo (i.e., with no

deference) because the dispositive question is whether the district court abused its discretion in

binding over defendants. People v Norwood, 303 Mich App 466, 468; 843 NW2d 775 (2013)

(quotation marks and citation omitted); People v Redden, 290 Mich App 65, 83; 799 NW2d

184 (2010). A district court abuses its discretion by choosing an outcome that falls outside the

range of reasonable and principled outcomes. People v Babcock, 469 Mich 247, 269; 666 NW2d

231 (2003). “A trial court necessarily abuses its discretion when it makes an error of law.” People

v Duncan, 494 Mich 713, 723; 835 NW2d 399 (2013).

LAW AND ARGUMENT

A. The trial court abused its discretion in declining to quash the Information
against Defendants because the prosecution cannot demonstrate causation,
where the intentional misconduct of EC constitutes an intervening cause, and
EC’s criminal conduct was the sole cause of harm to the victims.

Involuntary manslaughter contains an element of causation that must be proven beyond a

reasonable doubt.5 In People v Schaefer, 473 Mich 418, 435; 703 NW2d 774 (2005), this Court

stated that in the criminal law context, the term “ ‘cause’ has acquired a unique, technical

meaning.” Specifically, the term and concept of causation has two parts: factual causation and

proximate causation. Id. at 435-436.

In People v Feezel, 486 Mich 184, 194-95; 783 NW2d 67 (2010), while relying heavily on

Schaefer, this Court explained:

Factual causation exists if a finder of fact determines that "but for" a

defendant's conduct the result would not have occurred. [Schaefer, 473 Mich at
435-436.] A finding of factual causation alone, however, is not sufficient to hold

5
See M Crim JI 16.10, stating that the prosecutor must prove beyond a reasonable doubt “that the
defendant caused the death[,]” and M Crim JI 16.13, stating that the prosecutor must prove beyond
a reasonable doubt that “the death was directly caused by defendant’s failure to perform this
duty[.]”

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an individual criminally responsible. Id. at 436. The prosecution must also establish
that the defendant's conduct was a proximate cause of…the victim's death. Id.

Proximate causation "is a legal construct designed to prevent criminal liability from
attaching when the result of the defendant's conduct is viewed as too remote or
unnatural." Id. If the finder of fact determines that an intervening cause supersedes
a defendant's conduct "such that the causal link between the defendant's conduct
and the victim's injury was broken," proximate cause is lacking and criminal
liability cannot be imposed. Id. at 436-437. Whether an intervening cause
supersedes a defendant's conduct is a question of reasonable foreseeability. Id. at
437. Ordinary negligence is considered reasonably foreseeable, and it is thus not a
superseding cause that would sever proximate causation. Id. at 437-438. In
contrast, "gross negligence" or "intentional misconduct" on the part of a
victim is considered sufficient to "break the causal chain between the
defendant and the victim" because it is not reasonably foreseeable. Id. Gross
negligence, however, is more than an enhanced version of ordinary negligence. Id.
at 438. "It means wantonness and disregard of the consequences which may ensue. .
. ." People v Barnes, 182 Mich 179, 198; 148 NW 400 (1914). "Wantonness" is
defined as "[c]onduct indicating that the actor is aware of the risks but indifferent
to the results" and usually "suggests a greater degree of culpability than
recklessness. . . ." Black's Law Dictionary (8th ed). Therefore, while a victim’s
negligence is not a defense, it is an important factor to be considered by the trier of
fact in determining whether proximate cause has been proved beyond a reasonable
doubt. See, e.g., People v Campbell, 237 Mich 424, 430-431; 212 NW
97 (1927) (internal footnotes omitted) (emphasis added).

Significantly, this Court has determined that Schaefer’s holding (i.e., that gross negligence

and/or intentional misconduct is not reasonably foreseeable) is not limited to the conduct of victims

and also applies to the conduct of third parties. This Court explained:

The linchpin in the superseding cause analysis, therefore, is whether the intervening
cause was foreseeable based on an objective standard of reasonableness. If it was
reasonably foreseeable, then the defendant’s conduct will be considered a
proximate cause. If, however, the intervening act by the victim or a third party
was not reasonably foreseeable -- e.g. gross negligence or intentional
misconduct -- then generally the causal link is severed and the defendant’s
conduct is not regarded as a proximate cause of the victim’s injury or death.
(Schaefer, 473 Mich at 437) (emphasis added).

Here, EC’s acts, without a doubt, constitute intentional misconduct. On November 30,

2021, EC committed four counts of first-degree premeditated murder at Oxford High School. As

made clear by his 21-page journal, EC did not, in the spur of the moment, embark on the homicidal

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rampage; to the contrary, EC planned the attack well in advance. (PE Tr II, 228). It is difficult to

fathom a more deliberate and calculated act constituting intentional misconduct. As noted by the

Court of Appeals in its Opinion and Order, subsequent to the trial court denying Mr. and Mrs.

Crumbley’s Motion to Quash, EC pleaded guilty to four counts of first-degree premeditate murder.

(Appendix A, at 14). Thus, “[w]hile there was no dispute during the trial court proceedings that

EC’s actions were intentional, his guilty pleas to first degree murder cement that fact.” (Id.).

Nevertheless, the trial court concluded that the district court did not abuse its discretion in

binding Mr. and Mrs. Crumbley over for trial because while “the criminal misconduct of the

Defendants’ son was an intervening cause[,]” “a reasonable juror could conclude that his actions

were reasonably foreseeable.” (Appendix E, at 4). The trial court, however, did not articulate or

explain how the intentional misconduct of EC could be considered reasonably foreseeable, when

this Court has previously held that intentional misconduct on behalf of a third party is not

reasonably foreseeable. The Court of Appeals, on the other hand, attempted to distinguish the

holdings in Schaefer and Feezel from the facts presented here by intimating that this Court only

established a “general rule” in those cases (Appendix A, at 14).

Importantly, though, one is not guilty of manslaughter where one’s acts only create a

situation which provides the opportunity for killing by other independent means. See 40 CJS,

Homicide, § 11 b, p 854 (“It is not sufficient [to sustain a conviction] that the act of accused was

the cause of a condition or situation affording an opportunity for the compassing of the death by

some other unconnected agency.”); Wharton on Homicide, § 28, p 31 (“To hold a person criminally

responsible for a homicide, his act must have been the proximate cause of the death as

distinguished from the cause of a condition affording an opportunity for the compassing of the

death by some other unconnected agency.”); see also People v Zak, 184 Mich App 1; 457 NW2d

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59 (1990) (holding that providing a weapon and opportunity for another to kill was an intervening

cause of death that was not reasonably foreseeable). Thus, “[i]n criminal prosecutions there must

be a more direct causal connection between the criminal conduct of the defendant and the homicide

charged that is required by the tort liability concept of proximate cause.” People v Scott, 29 Mich

App 549, 558; 185 NW2d 576 (1971).

This is because“[c]riminal guilt under our law is personal fault.” People v Sobczak, 344

Mich 465, 470; 73 NW2d 921 (1955). “It is the very essence of our deep-rooted notions of criminal

liability that guilt be personal and individual.” Scott, 29 Mich App at 555.6 Moreover, “[i]t is highly

individualistic” and “comes not from association, without more, be it with family or friends.”

Sobczak, 344 Mich at 470.

With these principles in mind, it is not surprising that in People v Bailey this Court held

that “[w]here an independent act of a third party intervenes between the act of a criminal defendant

and the harm to a victim, that act may only serve to cut off the defendant’s criminal liability where

the intervening act is the sole cause of harm.” 451 Mich 657, 676; 549 NW2d 32 (1996), amended

in part on other grounds 453 Mich 1204 (1996), citing to People v Elder, 100 Mich 515; 59 NW

237 (1894) (holding that the trial court erroneously instructed the jury that it could find the

defendant guilty of manslaughter for knocking the decedent to the ground and putting him in a

position in which he could be kicked by a third party, even if the kick was the sole cause of death

and there was no concert of action between the assailants). This Court explained, “An intervening

cause must be the efficient cause of death, or at least more than a contributing cause, before the

6
Citing to a law review journal article by Sayre “Criminal Responsibility for the Acts of
Another,” 43 Harvard Law Review 689, 716 (1930).

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accused in [sic] not guilty for such reason.” Bailey, 451 Mich at 678, quoting Houston v State, 70

So2d 338, 339 (Miss, 1954).

Here, the “independent act”, the mass shooting perpetrated by EC, and the “sole cause of

harm,” lay solely with EC’s horrific acts. See Zak, 184 Mich App at 9-10 (determining that a third

party’s voluntary act of shooting and killing the victim constituted the intervening and proximate

cause of the victim’s death, where the defendant sold the firearm used to commit the murder to the

third party and accompanied the third party to the home of the victim, where the murder took

place).

Of course, the Mr. and Mrs. Crumbley did not counsel EC in the commission of the school

shooting or act jointly with EC in any way; to the contrary, they had no knowledge that their son

intended to commit multiple homicides on November 30, 2021. Certainly, if the prosecution could

directly link Mr. or Mrs. Crumbley to the mass shooting, they would be prosecuted for first-degree

murder, as if they had directly committed the offense as aiders and abettors. However, because the

prosecution cannot support such a claim, they are left attempting to fit a square peg into a round

hole.

Thus, the circuit court erred when it upheld the district court’s decision to bind Defendants

over for trial, given that the prosecution cannot meet their burden in demonstrating that Mr. and

Mrs. Crumbley were the cause of the victims’ deaths. Despite the low level of proof required at

preliminary examination, “the magistrate must always find that there is ‘evidence regarding each

element of the crime charged or evidence from which the elements may be inferred’ in order to

bind over a defendant.” People v Hudson, 241 Mich App 268; 615 NW2d 784 (2000), quoting

People v Selwa, 214 Mich App 451, 457; 543 NW2d 321 (1995) (emphasis added). Where,

however, such evidence is lacking, review is appropriate, and a trial court must quash the

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Information. See Hudson, 241 Mich App at 284 (interlocutory appeal where the court concluded

that the district court abused its discretion when it bound defendant over for trial, where the

evidence was lacking to demonstrate the defendant “actually” caused the victim’s injuries).

B. The trial court abused its discretion in declining to quash the Information
against Defendants because the prosecution cannot demonstrate causation,
where the mass shooting perpetrated by EC was not reasonably foreseeable.

The trial court’s finding of probable cause in this case results in an interpretation of the

involuntary manslaughter statute that would impose open-ended criminal liability. In reviewing

the prosecution’s offer of proofs at the preliminary examination, it begs the question of when a

parent will cross the subjective line of “good parenting” and render himself or herself criminally

liable for the independent acts of a teenager. Of course, for parents, this interpretation should be

particularly troubling, given that the line-crossing is not dependent on the act of the parent, but of

the teenager. Of course, the desire to hold someone accountable for the tragedy that occurred at

Oxford High School on November 30, 2021 is certainly understandable, but “[t]he temptation to

stretch the law to fit the evil is an ancient one, and it must be resisted.” Moskal v United States,

498 US 103, 132 (1990) (Scalia, J., dissenting).

Significantly, in judging whether harm was legally foreseeable, courts are to consider what

was apparent to the defendant at the time of his now complained of conduct, not what may appear

through the exercise of hindsight. Foreseeability is not “a judgment from actual consequences

which were then not to be apprehended by a prudent and competent person.” 57A Am Jur 2d

Negligence § 125. This Court has specifically admonished using hindsight to determine whether

one might have been placed on notice of future criminal conduct. In Brown v Brown, 478 Mich

545, 555-556; 739 NW2d 313 (2007), this Court rejected permitting “a jury to impose liability on

an employer if, in retrospect, somehow the harm was avoidable.” In so holding, this Court made

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clear that it would “not transform the test of foreseeability into an ‘avoidability’ test that would

merely judge in hindsight whether the harm could have been avoided.” Id. at 556. It is fundamental

that criminal conduct is inherently arbitrary and highly unpredictable. As this Court noted in

Brown, even law enforcement agencies, which are trained in detecting and preventing crime,

cannot predict the occurrence of criminal acts. Id. at 554, citing MacDonald v PKT, Inc, 464 Mich

322, 335; 628 NW 2d 33 (2001).

Turning to November 30, 2021, then, the holdings of the trial court and Court of Appeals

rest entirely on the idea that, in hindsight, EC’s inappropriate conduct can be pieced together in a

way that suggests the mass shooting he perpetrated was foreseeable, and that his parents should

have pieced the information together and then acted to avoid the mass shooting. As per the Court

of Appeals:

[R]elevant facts revealed that, prior to arriving at the school on November 30, 2021:
(1) defendants were aware that EC had been repeatedly experiencing significant
episodes of hallucinations and/or extreme paranoia; (2) EC was in a distressed
mental state because of the loss of his grandparent and the family dog, and the
departure of his best friend; (3) EC himself realized his poor mental state such that
he requested defendants to help him obtain medical assistance; (4) despite
defendants' knowledge of EC's mental state, they purchased him a handgun which
was readily accessible to EC; (5) on November 29, the day before the shootings,
EC was researching bullets while in school; and (6) during first hour of class on
November 30, EC watched a video involving a shooting, and during second hour
drew pictures of a bullet, a gun resembling the SIG Sauer, a person bleeding from
bullet holes, and wrote "Blood everywhere," "The thoughts won't stop Help me,"
"My life is useless," and "The world is dead." Defendants were also presented with
the significant modifications EC made to that worksheet, where he clearly intended
to portray a different, happier message about the school and himself.

Despite their knowledge of all of these circumstances, when given the option to
help EC and take him out of school, defendants did nothing. They did not, contrary
to the recommendations of Hopkins, take EC home and get him immediate medical
help. Nor, when they decided to leave him at school, did they tell school officials
about EC's history of mental health issues nor explain to them that EC had access
to a gun similar to the one he drew on the math worksheet. Defendants neither asked
EC if he had the gun with him nor did they look in his backpack. And, when they

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left the school, defendants did not go home and ensure EC had not taken the gun.
(Appendix A, at 14-15).

The Court’s emphasis on such facts, however, is contrary to this Court’s directive in Brown, given

that each fact highlighted by the Court is only significant when considered in retrospect and

knowing, after the fact, what transpired on November 30, 2021. Certainly, after every school

shooting, the media and those effected are quick to point to so-called “red flags” that were missed

by those in the shooter’s life. But the truth of the matter is, one cannot predict the unimaginable.

As stated by the National Center for the Analysis of Violent Crime comprehensive resource, The

School Shooter: A Threat Assessment Perspective:

Reliably predicting any type of violence is extremely difficult. Predicting that an

individual who has never acted out violently in the past will do so in the future is
still more difficult. Seeking to predict acts that occur as rarely as school shootings
is almost impossible. This is simple statistical logic: when the incidence of any
form of violence is very low and a very large number of people have identifiable
risk factors, there is no reliable way to pick out from that large group the very few
who will actually commit the violent act.

After a violent incident has taken place, retracing an offender’s past and identifying
clues that in retrospect could have been signs of danger can yield significant, useful
information. However, even clues that appear to help interpret past events should
not be taken as predictors of similar events in the future. At this time, there is no
research that has identified traits and characteristics that can reliably distinguish
school shooters from other students. Many students appear to have traits and
characteristics similar to those observed in students who were involved in school
shootings. (O’Toole, Mary, National Center for the Analysis of Violent Crime, The
School Shooter: A Threat Assessment Perspective
<https://files.eric.ed.gov/fulltext/ED446352.pdf> (accessed May 16, 2021).

Thus, even experts cannot accurately and reliably determine which teenagers will perpetrate mass

shootings and which teenagers, who seem to fit the mold, will not.

Nevertheless, according to the trial court and Court of Appeals, Mr. and Mrs. Crumbley,

on November 30, 2021, should have been able to identify that their son was likely to commit a

school shooting. As per the trial court and Court of Appeals, they should have known that was EC

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was homicidal that day, even though EC had never outwardly exhibited violent behaviors in the

past. As per the trial court and Court of Appeals, Mr. and Mrs. Crumbley should have known that

EC was going to use a recently purchased firearm to murder his classmates, even though EC had

access to firearms without issue previously, and as per the trial court and Court of Appeals, Mr.

and Mrs. Crumbley should have known that the drawing EC rendered in math class posed a true

threat to others, as opposed to a drawing of a videogame as EC described.

Again, to hold parents to such a standard runs afoul of principled outcomes, which caution

against “transform[ing] the test of foreseeability into an ‘avoidability’ test that would merely judge

in hindsight whether the harm could have been, avoided.” Hamed v Wayne County, 490 Mich 1,

14; 803 NW2d 237 (2011), quoting Brown, 478 Mich at 556. Additionally, “[s]imply alleging that

an actor could have done more is insufficient under Michigan law, because, with the benefit of

hindsight, a claim can always be made that extra precautions could have influenced the result.”

Tarlea v Crabtree, 263 Mich App 80, 90; 687 NW2d 333 (2004). Thus, the circuit court abused

its discretion when it upheld the order of the district court binding Mr. and Ms. Crumbley over for

trial, where the mass shooting perpetrated by EC was not foreseeable.

CONCLUSION AND RELIEF REQUESTED

WHEREFORE, Defendant respectfully requests that this Court grant her Application for

Leave to Appeal, reverse the order of the trial court, and quash the Information.

Respectfully submitted,

DATED: May 17, 2023 /s/ Shannon M. Smith

SHANNON M. SMITH (P68683)
Attorney for Defendant-Appellant

CERTIFICATION OF WORD COUNT

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The above Brief has 8,446 words, which is less than the allowed number of words for a

Brief (16,000) pursuant to MCR 7.212(B)(1).

Respectfully submitted,

DATED: May 17, 2023 /s/ Shannon M. Smith

SHANNON M. SMITH (P68683)
Attorney for Defendant-Appellant

PROOF OF SERVICE

The above Application was filed and served upon all parties electronically on May 17,

2023.

Respectfully submitted,

DATED: May 17, 2023 /s/ Shannon M. Smith

SHANNON M. SMITH (P68683)
Attorney for Defendant-Appellant

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