When Accidental Death of Child Is Not Woe Enough : Weapons: New statute makes parents criminally liable for gun negligence. Some question whether law is cruel.

The shooting death Wednesday night of 4-year-old Tiffany Dailey was one of those terrifying and senseless accidents that can punish a parent for a lifetime.

While in the care of a teen-age sibling, Tiffany and her 6-year-old sister stumbled upon their father’s loaded rifle, hidden behind the living room couch.

The 6-year-old lifted the rifle and somehow managed to pull the trigger. A bullet pierced Tiffany’s skull, police said, killing her immediately. In a moment, the screams of their other sisters flooded the neighborhood as they saw Tiffany lying lifeless on the living room floor.

Just a few months ago, the tragedy of Tiffany probably would have been mourned and then forgotten by others amid the din of tragedies that rattle each day through Los Angeles.

But because of a law that went into effect Jan. 1, her father could face criminal charges and a jail sentence because of his daughter’s death.

“Should he be punished?” asked Delay Smith, a longtime friend of the family, as he stood vigil outside the Daileys’ modest pale-blue stucco home on West 59th Place. “It is his fault, he should have put that thing away, but my God, he loved that child. She was daddy’s favorite.”

The new law, known as the Children’s Firearm Accident Protection Act of 1991, makes adults criminally liable for keeping loaded weapons accessible to children.

Detectives have yet to complete their investigation of the shooting and prosecutors have made no decision about whether to file criminal charges. But if convicted, Tiffany’s father, Wayne Dailey, could face up to three years in prison and a $10,000 fine for violating the statute.

While prosecutors around the state have filed a number of cases under the new law, it is only as the number of cases mounts that the human toll has begun to be felt.

In states where similar measures have been adopted, supporters say the law has resulted in far fewer accidental shootings of children--the fourth leading cause of death for children under 14, according to one estimate.

But for many others, the prospect of punishing those who have already suffered through the death of a loved one evokes an uncomfortable feeling that the law runs perilously close to being cruel and vengeful.

The first law was passed in Florida in 1989 after six children were accidentally shot--three fatally--during a one-week period. The state Legislature convened a special session to pass the law.

Since then, Connecticut, Iowa and California have passed similar measures. Several other states are considering bills.

The California law was sponsored by Assemblyman Lloyd G. Connelly (D-Sacramento), who learned of the number of children who die each year in accidental shootings while researching a separate handgun safety measure that also passed last year.

Gene Erbin, a Connelly aide, estimated that about 200 children are accidentally shot each year in California, 50 fatally.

“The bill was intended to respond to the predictably regular event of children being killed by a loaded weapon left in the house,” Erbin said. “Children are dying all the time because of adults who elect to leave loaded weapons around. It is dumb, foolish, foolhardy and, in our opinion, criminal.”

Just 10 days after the law went into effect, prosecutors in Los Angeles County filed charges against a 22-year-old Los Angeles man in a case that seemed to closely fit the intent of the law.

Carlos Ortiz, a parolee, kept a loaded gun around the house despite the protests of his parents. His 3-year-old brother found the gun one day in January and shot himself in the leg.

Ortiz pleaded guilty and was sentenced to three years in prison.

“I had no problems filing the Ortiz case,” said one prosecutor involved in the case. “It was a simple case.”

But not all the cases are as clear-cut.

A few hours after the law went into effect, a San Jose man became the first person in the state to be charged under the statute.

Nicolas Conchas, a 47-year-old painting contractor, was charged with criminal storage of a firearm after his 4-year-old grandson accidentally killed himself with a pistol left on a bedroom floor.

Conchas usually kept the pistol in a file cabinet in his garage office, but he took it out to celebrate on New Year’s Day by firing it into the ground.

After three shots, he put the gun in his sweater pocket and went to a neighbor’s house. When he returned home at 3 a.m., Conchas threw his sweater on the floor of the bedroom that he shared with his grandson, Jesus Valencia.

Conchas could not find the pistol when he woke up the next morning, but assumed that he had put it away or left it at his neighbor’s home.

Soon afterward, he heard a shot and found 4-year-old Jesus lying on the floor, dead of a gunshot wound to the heart.

The Conchas case has sparked a furious debate, with many family members and friends rallying to his cause, saying that he has been punished enough and should not be prosecuted.

Tiffany’s death has sparked similar feelings in the quiet South-Central neighborhood where she lived.

Los Angeles Police Detective Roosevelt Joseph said Tiffany was at home with four other sisters when the shooting occurred.

Their mother had gone to work at about 6:30 p.m. and, for an undetermined reason, their father left around 9:30 p.m., Joseph said.

Sometime in the next 40 minutes, Tiffany and her 6-year-old sister found their father’s .30-caliber rifle behind the couch.

The frantic call to 911 reporting the shooting came in at 10:10 p.m., Joseph said.

Smith, the family friend, said he had warned Tiffany’s father several times to lock his rifle away. “I told him, one of your kids will get shot,” Smith said.

But at the same time, Smith recoiled at the thought of his friend being imprisoned because of his mistake.

A section of the California law states that a prosecutor should consider the effect of a child’s injury or death on the parent or guardian who owned the gun. The law also states that it was the Legislature’s intention that only “grossly” negligent parents or guardians should be punished by the law.

But with so few cases, determining the impact of a child’s death and how “grossly” negligent a parent must be to warrant prosecution is murky.

“I would feel queasy if this case was presented to me,” one prosecutor said.

For friends and neighbors of the Daileys, the shooting has left them with a similar sense of unease.

Jimmy Mason, who lives next door to the Daileys, said he supports the intent of the new law, which he saw as a common sense rule to protect children from an accidental shooting.

But when he thought about his friends and neighbors next door, he was no longer certain that the law was a good idea.

“I really don’t know what to say,” said Mason. “It’s just sad. So sad.”