February 6, 2013 by Julia
Here is the headline and story: Alexandria cops bust 10-year-old for bringing toy gun to school
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.
School officials said they learned about the incident Monday evening and immediately started investigating. Alexandria police spoke to school administrators Tuesday morning before the boy got to school.
When the boy arrived, authorities found the toy in his backpack. He was taken into custody, transported to a juvenile detention center for booking and then released to his parents, Hildebrandt said.
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.
Here is the Virginia statute on “brandishing a weapon,” at Va 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.
C. For purposes of this section, the word “firearm” means any weapon that will or is designed to or may readily be converted to expel single or multiple projectiles by the action of an explosion of a combustible material. The word “ammunition,” as used herein, shall mean a cartridge, pellet, ball, missile or projectile adapted for use in a firearm.
Let’s play lawyer for a second and break this down. There are two ways to commit this crime:
1. 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
2. [to] 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.
Which method did the 5th grader use to violate the statute? Trick question–the answer is neither.
What do we know from the story? The kid showed the plastic gun to another kid on the bus, but “did not point it at anyone or threaten to shoot it.” The toy “had a orange tip that went into the barrel, showing that no ammunition was coming out of it.” When he was arrested the next morning, the toy was in his backpack.
Now let’s go through the elements of each way to commit the crime of “brandishing a weapon.” Remember, in order to be guilty of a crime, an individual must meet all of the elements of the crime.
1. “point, hold or brandish” – Yes, he “held” the gun.
2. “any firearm or any air or gas operated weapon or any object similar in appearance, whether capable of being fired or not” – The toy appears to have had a similar appearance to a “semi-automatic handgun,” except that there was an orange tip in the barrel. The fact that it could not be fired is not dispositive (“whether capable of being fired or not”), but the orange tip would have told a reasonable adult that the toy was not similar in appearance to a real gun. But, airsoft guns also have orange tips, so it may have been reasonable for a person–adult or child–to find it similar in appearance to “any air or gas operated weapon.”
3. “in such manner as to reasonably induce fear in the mind of another.” Nope, sorry, this element is not met unless there is a lot of missing information. Fear is not “reasonably induced” when someone showed someone else a gun similar to an airsoft gun and “did not point it at anyone or threaten to shoot it.” It was probably more like, “Hey, look what I got!” In fact, there is no mention in the story of whether anything who saw the kid holding the toy felt fear–we don’t know who actually reported it, or why. All we know is someone called a school official that same night. It’s perfectly possible that the kid who saw the toy went home and said, “Mom, it was so cool, so and so had a gun on the bus!” and Mom panicked and called the school (but why not the cops, if she was scared?). The parents’ fear cannot reasonably be said to have been induced by the kid holding the toy, because they wouldn’t have seen it happening. Now, if information comes out that the kid was a bully known for being violent, for example, then maybe the fear could be considered reasonable. But based on the facts before us, the Commonwealth Attorney cannot even prove that there was fear, much less that the kid induced it by holding the toy, or that it was reasonable. (I wonder if you “take your accuser as you find him,” as it were–i.e. what if the accuser suffered from hoplophobia? The fear still has to be reasonable, though, which depends on context–a kid saying “Hey, look what I got!” and not pointing the toy or threatening anyone with it is very different than, say, an armed guard)
1. “hold” – Yes he held it.
2. “a firearm or any air or gas operated weapon” – Nope, it was a plastic toy, and does not meet the definition of “firearm.”
3. “in a public place” – Yes, the school bus is most likely public.
4. “in such a manner as to reasonably induce fear in the mind of another of being shot or injured” – Not with more information. The kid clearly “did not point it at anyone or threaten to shoot it.” It is not reasonable to be afraid of being shot if someone shows you a gun (even assuming it’s real) and does not point it at you or threaten to shoot it. Again, if the kid had a history of being violent, or was swinging it around such that someone reasonably feared an accidental discharge, then maybe–but we have no facts to make that case right now.
So, as you can see, this 5th grader unlikely commited the crime of “brandishing a weapon” in Virginia. In Virginia, an arrest is not “false imprisonment” if the cops had a valid warrant. I don’t see any mention of a warrant in this story. If there is no warrant, then the cops must personally witness the crime (“an arrest, though warrantless, is valid where the officer had probable cause to believe that a misdemeanor was committed in his presence, even though the action he observed did not in fact constitute a misdemeanor.” Yeatts v. Minton, 177 S.E.2d 646, 648 (Va. 1970)). Unless there was a cop on the bus (which isn’t in the story), there is no way the cops can argue that a crime was committed in their presence–the only time they were present around the kid, the toy was in his backpack.
(Nothing in this post is meant to constitute legal advice. If you want more information about a particular factual situation in your own life, please consult a licensed attorney in your state)