The 6-year-old boy accused of shooting his Virginia teacher Friday with a gun he took from home is unlikely to be charged, but his parents could be criminally culpable depending on how the firearm was stored, experts say.
Legal experts said even though it is theoretically possible under Virginia law to criminally charge a 6-year-old child, there are numerous obstacles to doing so and it’s highly unlikely that any prosecutor would even try.
Virginia law does not allow 6-year-olds to be tried as adults.
In addition, a 6-year-old is too young to be committed to the custody of the Department of Juvenile Justice if found guilty. In addition, a common law doctrine known as the “infancy defense” holds that children under 7 cannot be prosecuted for a crime because they are so young that they are incapable of forming criminal intent.
A judge would also have to find that the child was competent to stand trial, meaning that he could understand the legal proceedings against him and assist in his own defense, Andrew Block, a professor and the University of Virginia School of Law who was the director of Virginia’s Department of Juvenile Justice from 2014 to 2019, told the Associated Press.
“It’s virtually impossible to imagine a 6-year-old being found competent to stand trial,” Block said.
Julie E. McConnell, a law professor at the University of Richmond who has worked on youth justice cases for more than 25 years, said prosecutors can file what’s known as a “Child in Need of Services” petition in cases in which a child’s behavior or condition presents or results in a serious threat to the child’s well-being and physical safety.
A judge would then have an array of options, including: ordering services such as counseling or anger management; allowing the child to remain with his parents, subject to conditions; ordering the parents to participate in programs or cooperate in treatment; or transferring custody of the child to a relative, child welfare agency or a local social services agency.
The student’s mother legally purchased the 9mm handgun used in the shooting, and stored it in the family’s home, Newport News police Chief Steve Drew revealed in a press conference on Monday.
Virginia has no laws that require unattended firearms to be stored in a certain way. The state also does not require a locking device to accompany the sale of a firearm, and no state statutes require firearm owners to affirmatively lock their weapons.
However, Virginia does have a misdemeanor law meant to protect children 14 and younger from access to firearms.
According to Virginia Law 18.2-56.2, “any person to recklessly leave a loaded, unsecured firearm in such a manner as to endanger the life or limb of any child under the age of fourteen,” is guilty of a Class 1 misdemeanor. According to state law, punishment for a Class 1 misdeamor includes up to twelve months in jail and/or a fine up to $2,500.
Newport News Police Department revealed in a press conference that the boy’s mother has been interviewed by police, but it is unclear whether she could potentially face any charges.
Police also shared that the boy is being held at a medical facility since an emergency custody order and temporary detention order were issued Friday. Newport News Police Chief Drew added that will be up to a judge to determine what the next steps for the boy.
On Monday, the Newport News Police Department and city officials gave the first detailed joint press conference outlining the events leading up and following the incident where the first grade student shot his teacher.
Drew shared that he wanted to clarify remarks he made just after the shooting on Friday, when he said there was an “altercation” before the shooting. He said it was more like an “interaction” between the boy and his first-grade teacher at Richneck Elementary School, 25-year-old Abby Zwerner.
“What we know today is that she was providing instruction. He displayed a firearm, he pointed it, and he fired one round,” Drew stated, revealing that there was no fight, no physical struggle and no warning beforehand.
Zwerner put up her hand in a defensive position when the gun fired, and the bullet went through her hand and into her upper chest, Drew said. Although her injuries were initially considered life-threatening, she has improved and is currently in stable condition at a hospital.
Drew hailed Zwerner as a hero for quickly hustling her students out of the classroom after she was shot. He said surveillance video shows she was the last person to leave her classroom.
“She made a right turn and started down the hallway, and then she stopped. … She turned around and make sure every one of those students was safe,” Drew said.
Drew said a school employee rushed into the classroom and physically restrained the boy after hearing the gunshot. He said the boy became “a little combative” and struck the employee.
Police officers arrived and escorted him out of the building and into a police car.
The Associated Press contributed to this report.