About That Fifth Grader Arrested for Having a Toy Gun...

Guess what folks, you are going to be treated to some original reporting.  Usually at Allergic to Bull we restrict ourselves to merely commenting on the news gathered by others (with the giant exception being the Brett Kimberlin Saga because these involved crimes that happened to us), bringing our unique perspective and expertise.  But when I read this story this morning, originally via Instapundit, I started to think maybe a detail or two were missing.

Let me start with the basic story.  From the Washington Examiner we get this account of an alleged overreaction by the police in Alexandria, Virginia:

Alexandria cops bust 10-year-old for bringing toy gun to school

A 10-year-old Alexandria boy was arrested after police said he brought a toy handgun to school on Tuesday, a day after he showed it to others on a school bus.

The boy, a fifth-grader at Douglas MacArthur Elementary School whose name is not being released, was charged as a juvenile with brandishing a weapon, police said.

He was also suspended from school, and Alexandria City Public Schools Superintendent Morton Sherman said further action is being considered, including expulsion.

On Monday, the boy showed the plastic gun to at least one other student during a bus ride home from the school. The 10-year-old did not point it at anyone or threaten to shoot it, but he neglected to mention that the weapon was fake, said Alexandria police spokeswoman Ashley Hildebrandt.

...

The toy resembled a semi-automatic handgun, said police spokesman Jody Donaldson. It was silver and had a black handle. It also had a orange tip that went into the barrel, showing that no ammunition was coming out of it.

This prompted outrage from people I do respect, such as Glenn Reynolds, who wrote in response to Superintendant Sherman’s comment that “The safety of our students is always our first concern” that

[y]our students were always safe, because it was a toy gun. Except they’re not safe from overweening officialdom, who can’t tell the difference between a dangerous weapon and a toy gun. Or, more accurately, who choose to ignore the difference.

Sending your kids to public school is looking more and more like parental malpractice.

And my blogging friend John Hoge’s headline says it all: “Tar!  Feathers!”

But my antennae went up, and I suspected there was a little more to the story than we were hearing in this article.  I suspected, for instance, that the author of the article didn’t fully understand what brandishing meant under Virginia law because what was described in the article alone wouldn’.  Allow me to quote from the Virginia Code:

§ 18.2-282. Pointing, holding, or brandishing firearm, air or gas operated weapon or object similar in appearance; penalty.

A. It shall be unlawful for any person to point, hold or brandish any firearm or any air or gas operated weapon or any object similar in appearance, whether capable of being fired or not, in such manner as to reasonably induce fear in the mind of another or hold a firearm or any air or gas operated weapon in a public place in such a manner as to reasonably induce fear in the mind of another of being shot or injured. However, this section shall not apply to any person engaged in excusable or justifiable self-defense. Persons violating the provisions of this section shall be guilty of a Class 1 misdemeanor or, if the violation occurs upon any public, private or religious elementary, middle or high school, including buildings and grounds or upon public property within 1,000 feet of such school property, he shall be guilty of a Class 6 felony.

There’s more to the statute, but that is all that is relevant here.

So first you will notice that it does cover fakes that look like the real thing, including toys and other mock-ups.  But it also says to me as a lawyer that mere possession of such a fake weapon is not enough.  Instead you have to “point, hold or brandish” it in a manner “as to reasonably induce fear in the mind of another of being shot or injured.”  So just having a gun isn’t going to meet the statute.  After all, Virginia is an open carry state—that is any person not otherwise prohibited from owning a gun may have one and carry it in public as long they do not conceal it (unless they also obtain a concealed carry permit).  I open carry all the time and none of that is “brandishing.”

In other words, even if the gun was real, merely showing people you have a gun in your bag is not enough to be fit this statute.  Mind you, a child possessing a concealed handgun on a school bus is going to violate many other statutes, but it does not fall under this brandishing statute.  You have to do something more, to put others in fear.  And not just irrational fear, but “reasonable fear.”  So merely neglecting to mention that it was fake almost certainly didn’t cut it, if that is all he did.  Which suggested to me that maybe the suspect did something more.

So I decided to give the public relations department in the Alexandria Police a call, and I managed to get in touch with Jody Donaldson, mentioned in the story.  Now, I should note that this is merely the Alexandria police’s side of the story.  We have not heard from the suspect, his lawyer, etc.  And given that they can’t release his name to the public, getting in contact with anyone on the suspect’s side might be difficult.  And while I am sure Mr. Donaldson strives to be as accurate as possible, this is at least second-hand, if not third-, fourth- or fifth-hand information and for all the reasons why we don’t normally allow hearsay in court we should be concerned that inaccuracies might crop up.  But this is what Mr. Donaldson shared with me.  And all of what I am about to say, therefore, are allegations that will of course have to be proven in court; the suspect is innocent of all of this until proven guilty.

Mr. Donaldson alleged that it was not merely, as the story said, that “he neglected to mention that the weapon was fake.”  In fact, the suspect was allegedly trying to make kids think it was real.

The story actually started on Monday afternoon, on the bus ride home.  The suspect allegedly had the toy weapon concealed in the waist of his pants.  He allegedly told several people that he had a gun and lifted his shirt to show the toy.  The intent, as Mr. Donaldson explained to me, was not necessarily to threaten any person, but more to allegedly put out the message that he was not someone to mess with.  Indeed I said, “he was putting out the message, ‘don’t mess with me, I have a gun’” and Mr. Donaldson agreed with that characterization.  I think it is fair to say that in Donaldson’s version of events he isn’t threatening to harm a specific person, but he is instead trying to seem a little “badass.”  The suspect left the bus and went home without further incident.

One child on the bus got upset and told his/her parents.  Some parents decided to write a letter to school officials about the incident and also released the letter to the media.  The media in turn contacted the Alexandria Police Department asking if they were going to do anything about it.

Bear in mind at, this point, the police had no idea whether the gun was real or not.  The toy did have an orange plastic tip in the barrel to indicate that it was fake, but because it was allegedly jammed barrel-first into the waistband of his pants, no one could see that.  But Donaldson told me that it was his understanding that it really looked real with “shiny chrome and black handle.”  I said to Donaldson that if they have a picture of the gun, they should release it to the media so that if it actually looked reasonably real, we could see for ourselves.  He stated that the media relations people had already shared that sentiment but they were holding it back for now for investigatory purposes.  But they may release a photo soon.

Donaldson was very adamant that the police would have handled the issue quietly if it was possible.  If the parents of the complaining child had called the police immediately and directly, instead of contacting the school and the media first, that might have given the police time to track down the suspect before he showed up at school the next day.  I don’t think his tone was blaming the parents so much as offering constructive criticism that this would have been a better way to handle it.  There was also some kind of difficulty in locating the suspect’s parents themselves.  Donaldson believed that if the suspect’s parents had been located, they could have determined that it was just a toy, told the suspect to leave it home from then on, and they could have avoided a huge scene at school and allowed the suspect to avoid being charged with a crime (which I presume would include the school administration punishing the suspect instead).  But that wasn’t possible.

Instead the police were forced into a situation where they had to wait until the suspect came back to school.  Again, remember that for all they knew this suspect was packing heat.  So they searched him and allegedly found the toy gun in his backpack at this time, and this led to his arrest.  I have no idea how tense a situation this was.

That is the end of Donaldson’s information.

So it was a little more serious than a kid having a toy gun for fun and games.  If the police’s account is correct (and this suspect is innocent until proven guilty), he was trying be at least a bit of a badass and convince others that he was armed.  And of course that could have created a dangerous situation on campus where perhaps a rival student might then feel the need to be armed.  And in that situation an ordinary argument that might normally turn into a fistfight might instead transform into a shooting.  I am pretty bullish on the Second Amendment, but I do draw the line at children having guns (without close adult supervision).  While I regularly deride the view that ordinary adult citizens will go all “murdery” if they have a gun on hand—I believe that most people can even be angry without being violent let alone murderous—I do not believe that immature children can be trusted the same way.

All of which isn’t to say that the kid should do hard time.  I am not exactly long in the tooth in the Virginia Criminal justice system, let alone the juvenile justice system, but I have a difficult time believing that any judge is going to do much more than something like community service and eventually an expunged record.  But frankly, if the police are getting their facts right, I think it is quite appropriate to handcuff him, trot him out of the school and so on.  A message should be sent that telling people you are armed is not a light matter.

I should also note that Mr. Donaldson did not have any information about any prior history that the suspect might have had.  Any revelations on that front might change my analysis considerably.

All of this puts Superintendant Sherman’s comment that “The safety of our students is always our first concern” into a little more perspective.  It sounds like, to me, that under those circumstances he was referring to the police coming to the school in a situation where at that point in time, they didn’t know if the kid had brandished a real weapon or not.  So it seems to be referring to that police response which seems, given their understanding of the facts at the time, perfectly reasonable.

Finally, my sense from the conversation is that Mr. Donaldson would appreciate it if I passed on this advice: if you are a parent and you learn that a child is engaged in serious criminal conduct, don’t go to school officials first.  Go to the police, directly.  And even if Mr. Donaldson doesn’t agree with me, well... that is how I feel.  We should not take the view that because something happened at school suddenly it is not serious.

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My wife and I have lost our jobs due to the harassment of convicted terrorist Brett Kimberlin, including an attempt to get us killed and to frame me for a crime carrying a sentence of up to ten years.  I know that claim sounds fantastic, but if you read starting here, you will see absolute proof of these claims using documentary and video evidence.  If you would like to help in the fight to hold Mr. Kimberlin accountable, please hit the Blogger’s Defense Team button on the right.  And thank you.

Follow me at Twitter @aaronworthing, mostly for snark and site updates.  And you can purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent History here.  And you can read a little more about my novel, here.

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Disclaimer:

I have accused some people, particularly Brett Kimberlin, of reprehensible conduct.  In some cases, the conduct is even criminal.  In all cases, the only justice I want is through the appropriate legal process—such as the criminal justice system.  I do not want to see vigilante violence against any person or any threat of such violence.  This kind of conduct is not only morally wrong, but it is counter-productive.

In the particular case of Brett Kimberlin, I do not want you to even contact him.  Do not call him.  Do not write him a letter.  Do not write him an email.  Do not text-message him.  Do not engage in any kind of directed communication.  I say this in part because under Maryland law, that can quickly become harassment and I don’t want that to happen to him.

And for that matter, don’t go on his property.  Don’t sneak around and try to photograph him.  Frankly try not to even be within his field of vision.  Your behavior could quickly cross the line into harassment in that way too (not to mention trespass and other concerns).

And do not contact his organizations, either.  And most of all, leave his family alone.

The only exception to all that is that if you are reporting on this, there is of course nothing wrong with contacting him for things like his official response to any stories you might report.  And even then if he tells you to stop contacting him, obey that request.  That this is a key element in making out a harassment claim under Maryland law—that a person asks you to stop and you refuse.

And let me say something else.  In my heart of hearts, I don’t believe that any person supporting me has done any of the above.  But if any of you have, stop it, and if you haven’t don’t start.