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Video of Toddler With Gun in Mouth Gets Couple Arrested

By Mark Wilson, Esq. on January 13, 2015 | Last updated on March 21, 2019

Here's a good way to get your kids taken away from you: Let them play with a .40-caliber handgun.

A couple from Evansville, Indiana, is facing child neglect and criminal recklessness charges after police found a cellphone video of the woman's 1-year-old baby placing a gun in her mouth. The incident was apparently no accident: According to police reports, a man can be heard in the background of the video repeatedly encouraging the toddler to say "pow."

Video From a Cellphone

The video came to light on a completely unrelated matter. Michael Barnes was arrested last Thursday after he allegedly agreed over social media to meet someone to sell a handgun. That "someone," of course, was an undercover police officer, and Barnes got arrested.

You can see the video in this clip posted by the Evansville Courier & Press:

It's not entirely clear how police obtained the video from Barnes' cellphone; legally, they couldn't have searched it incident to his arrest. After last year's U.S. Supreme Court opinion in Riley v. California, police generally have to obtain a warrant to search the contents of an arrestee's cellphone (with some exceptions). According to Reuters, police found the video on Barnes' cellphone during a "follow up investigation."

Assuming police did everything correctly, however, the video could be used as evidence in both Barnes' criminal case and the inevitable child welfare case. While Barnes said the gun was a pellet gun (which is supposed to be somehow better than a real handgun, I suppose), police said it was actually a .40-caliber handgun. They suggested that Barnes seemed to be encouraging the child to play with the gun. "At no point does Barnes try to stop the child from playing with the gun," police said in a statement.

Child Protective Services

As a result of the video, the 12-month-old, along with the couple's 1-month-old twins, were placed in emergency care. Child welfare proceedings like this are usually two-fold. On one side is the criminal prosecution of the parents for allegedly breaking state law; in this case, child neglect and criminal recklessness. On the other side is a different of proceedings through a different court, which will determine whether the couple will keep custody of their children, and if they do, under what conditions.

The trend these days is toward keeping the family together wherever possible, so a court may allow the couple to keep custody of their children in the home, provided they meet certain requirements. On the facts of this case, requiring the parents to keep their guns locked up would definitely be a good idea. (Because of Second Amendment considerations, a court might not be able to forbid the couple from owning guns altogether, but that could change depending on the outcome of the criminal case; a court could require them not to have guns in the house as a condition of probation.)

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