'I will not lie under oath': veteran Gwinnett DA staffers refuse child shooting case
SUGAR HILL, Ga. - Two veteran members of the Gwinnett County District Attorney's office lost their jobs because they insisted what led to a child shooting was an accident and no one should be prosecuted.
That opinion was echoed by the Gwinnett County police detective assigned to the case. Yet on March 27, a grand jury still indicted Adrian Osorio on felony second degree cruelty to children and misdemeanor reckless conduct.
"It's always been an accident," Osorio told the FOX 5 I-Team. His son Salvador was three at the time of the shooting.
A three-year-old Gwinnett boy found this loaded AR-15 under his parents' bed. He accidentally shot himself but has since recovered. His father was indicted despite objections from the three primary law enforcement authorities who investigated. (GCPD
So why does the landscape maintenance company owner now face criminal charges?
"If you have a gun, you should make sure no one can get a hold of it where they can harm themselves," stressed Gwinnett County District Attorney Patsy Austin-Gatson.
The shooting itself was an accident. According to police reports, Salvador was playing hide-and-go-seek with his sister and found a loaded American Tactical Omni Hybrid 5.56 rifle under his parents' bed. Somehow, the weapon discharged, sending one round through the little boy's abdomen, stomach and thigh. He survived and appears to have made a full recovery. The FOX 5 I-Team saw him running around the yard playing earlier this month.
A Gwinnett County grand jury indicted Adrian Osorio on misdemeanor reckless conduct and felony second degree child cruelty. He is out on bond.
At the time of the shooting, Salvador's father was working. He rushed home and explained to police he kept his weapons under the bed separate from the ammunition. Police reports confirmed the other long guns -- a shotgun and an AK-47 -- were unloaded. Two handguns in a dresser drawer were loaded.
In a memo sent to the DA and obtained by the FOX 5 I-Team, managing assistant district attorney Courtney Spicer recommended no charges. She pointed out it would be difficult to prove Osorio knew the AR-15 was loaded. Other adults were also in the house at the time and could have "manipulated it without his knowledge."
"The firearms were not stored in a reckless manner," Spicer wrote. "Though this is a tragic case, we are constrained by the Code’s definition of what constitutes recklessness."
Twenty-six states have laws requiring gun owners lock up their weapons to keep them out of the hands of curious children. Georgia is not on that list.
Georgia law defines Reckless Conduct as "consciously disregarding a substantial and unjustifiable risk that his or her act or omission will cause harm or endanger the safety of the other person, and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation."
Gwinnett DA Patsy Austin-Gatson said her staff found probable cause to indict the father, despite the objections from a veteran ADA and investigator.
"You have recklessly endangered a child’s life," said Austin-Gatson. "So that is the law."
And storing a gun under the bed is not secure enough under the law?
"When you know kids play under a bed, no," she answered.
But the Gwinnett Police investigator wrote "there is no evidence to support a crime occurred … It is reasonable to believe Adrian thought the [weapon] was unloaded. The firearms were also located underneath a bed that [was] close to the ground. It is reasonable to believe Adrian did not think his children would fit underneath it."
Spicer resigned rather than prosecute the case, writing to the DA, "I cannot and will not lie under oath."
The boy's father told police he kept his long guns unloaded under his side of the bed. But one was loaded and within reach of a child. (GCPD video)
Fennell got fired when he refused to testify before the grand jury that there was probable cause of a crime. He worked nine years for the DA's office. Spicer was there eight years. Neither would comment for this story.
"Those two individuals that decided to take a stand on this case when a child has been injured and could have been killed, is unfortunate," said Austin-Gatson.
But the DA’s decision is also unfortunate for the family still haunted by how close they came to tragedy.
"It brings a toll to my family because we had already been through everything," said Osorio. "It’s not just the gunshot wound. It brought everything down. Me, as a business owner, as a husband, as a son. It’s just been tough."
Does he think he was negligent in any way?
"Honestly, like I told you, it was in my room," he explained. "There were no guns around anywhere else than in my room."
The shooting happened January 3, 2023 while Adrian Osorio was at work. (GCPD video)
And for the two people in the DA’s office who refused to follow their boss’ orders?
"They’re doing their jobs correctly because everything’s been an accident," Osorio said. "But now they’re trying to do something out of it from nothing."
"We do know we’re in a Constitutional Carry state," said Austin-Gatson. "That’s all well and good. And everybody doesn’t need a gun. If you’re not willing to take steps to make sure it’s secure, to make sure that it’s stored safely, then maybe you should question that."