A 6-year-old shooter raises difficult questions for the criminal justice system

Police say a 6-year-old student shot his teacher at a Virginia elementary school on Friday, and authorities face a difficult and uncomfortable question: How should they prosecute a crime committed by a first-grader?

The investigation is ongoing into the shooting at Richneck Elementary School in Newport News, Va., but police have not wavered in their determination that the attack was deliberate.

"She was providing instruction. He displayed a firearm. He pointed it, and he fired one round," Steve Drew, the city's police chief, said in a Monday press conference. "This shooting was not accidental. It was intentional."

Authorities said the child acquired the gun at home and brought it to school in his backpack. The gun had been legally purchased by his mother.

The victim, 25-year-old teacher Abigail Zwerner, was struck in the hand and chest and is in stable condition. At least 16 other children were in the room at the time, police said.

The shooter and most of the witnesses are so young that police must work alongside juvenile system specialists, child psychologists and Child Protective Services to conduct the investigation, the chief said Monday.

When asked if authorities would pursue charges — against the child or his parents or guardians — Drew replied that no decision will be made until after the investigation has been completed.

Very young children are generally protected from prosecution

"Obviously, this is a tragedy on every level," said Julie Ellen McConnell, a law professor at the University of Richmond who directs the school's Children's Defense Clinic.

All 50 states, including Virginia, have a juvenile justice system.

But with a child so young, traditional principles like punishment, accountability and rehabilitation "don't really apply," McConnell said. "As a 6-year-old, he just doesn't have the intellectual capacity to even understand how to form the intent to commit a crime like this."

Virginia law does not set a minimum age for criminal defendants. (The state's juvenile detention facilities have a minimum age of 11.)

But very young children are generally protected from criminal prosecution under a legal doctrine called the "infancy defense." Criminal defendants must be found competent to stand trial; such a determination would be challenging to make about a 6-year-old, McConnell said.

Instead, authorities may pursue a "child in need of services petition," she said. Such a declaration would allow a court to order social services, including counseling.

The child's parents could face liability

The firearm used in the shooting – a 9mm Taurus handgun – had been legally purchased by the child's mother, police said Monday.

The gun had been stored in the family's home, police said, though they declined to share further details about how it was secured or how the child knew where the gun was.

There, the child obtained the gun, placed it in his backpack and brought it to school, Drew, the police chief, said.

In Virginia — a historically permissive state for gun policy — it is a misdemeanor to "recklessly leave a loaded, unsecured firearm" in such a way that it could cause injury to a child under the age of 14.

The statute is designed for situations in which a child harms another child, experts said. In this case, the victim was 25 years old.

"However, allowing the minor to access that gun, leaving it unsecured, certainly could have endangered the life or limb of that child himself," said Allison Anderman, senior counsel and director of local policy at Giffords Law Center to Prevent Gun Violence. "So I do think that this law could be used to hold accountable the adults."

Otherwise, prosecutors may be left to draw on the state's criminal neglect statutes to bring a case against a parent, McConnell said.

The child is currently receiving treatment at a medical facility under an emergency court order, police said Monday.

"A judge will determine if we continue with that temporary detention order, if treatment or evaluation continue," the police chief said, "or what the next steps may be." [Copyright 2023 NPR]