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How First-Grader Shooting Teacher Could Lead to Courtroom Showdown

Police set up barriers outside Richnick Elementary School as a first-grader is taken into custody for shooting his teacher.

Police set up barriers outside Richnick Elementary School in Newport News, Virginia as a first-grader is taken into custody for shooting his teacher. (Screengrab via local CBS station WTVR on YouTube)

A 6-year-old’s shooting of his teacher at a Virginia elementary school is highly unlikely to lead to criminal proceedings against the first grader, but whether his parents could face exposure remains to be seen.

The child, a student at Richneck Elementary School in Newport News, Virginia, shot and injured teacher Abby Zwerner on Friday. Zwerner is reportedly recovering well from her injuries while both the local community and the nation at large reel from the heartbreaking incident.

Police Chief Steve Drew told reporters Saturday that the child was in custody and that police have been in contact with both prosecutors and “other entities” in order “to help us best get services to this young man,” according to the Guardian. Drew also confirmed that the disturbing event “was not an accidental shooting.”

Had the shooter been an adult, there is little question that the shooting would amount to attempted murder or manslaughter under any state’s law. But what happens when an act of extreme and intentional violence is perpetrated by a child? Though there are still many facts yet undetermined at this point, Virginia law does provide some guidance.

Under Virginia statute, a child must be at least 14 to be tried as an adult. Therefore, any prosecution in this case would be handled in the state’s juvenile or domestic relations (“JDR”) courts, rather than in criminal courts. JDR proceedings differ in that rules of evidence are far looser in juvenile cases, proceedings are generally closed to the public, records are usually sealed, and juries are not used.

Although the applicable Virginia statute allows for the possibility of holding a 6-year-old child in secure detention during and after any legal proceedings, it is unlikely that the state would even argue for such an outcome in this case. Rather, the state’s Department of Social Services will likely choose a temporary custodial setting that it deems therapeutically appropriate for the child. Options would include inpatient psychiatric facilities, temporary or permanent foster care with a relative or other certified foster parent, or even allowing the child to remain with his parents.

Juvenile delinquency policies and procedures generally have a primary goal of child protection, as opposed to punishment. Furthermore, given the child’s very young age, a court would likely use its discretion to favor therapeutic rather than punitive measures.

Although Virginia’s JDR courts regularly preside over prosecutions of juvenile offenders, it is seriously doubtful that a 6-year-old child would even be deemed competent to stand trial. To establish competency, the child would need to have “substantial capacity to understand the proceedings against him or to assist his attorney in his own defense” — not the typical development of a first-grader.

Should the state attempt to subject the child to a trial, the court would likely order a series of professional evaluations to determine the child’s competency. While it is theoretically possible that evaluators would deem the child competent to participate in a juvenile prosecution, a judge would still need to agree.

Even if the child did stand trial in a JDR court, it is highly unlikely that he would be found liable for shooting his teacher. The primary obstacle to attributing culpable conduct to a child is the child’s presumed inability to form intent. Generally, a 6-year-old child is too young to be legally capable to form intent, or even to perceive the risks or consequences of their behavior. Authorities could attempt to prove in court that this particular child had the mental capacity to form intent for a particular crime, but it is doubtful that prosecutors would choose to do so.

There remains, however, another kind of legal proceeding that would more likely be used in this unusual case. Virginia allows an individual (such as a law enforcement professionals, the child’s parents, or a person in the community) to file a “Child in Need of Services” petition with the JDR court. Such a petition brings a child’s need for supervision or services before the court for the child’s own well-being and safety. The possible outcomes are the same as would be available after a delinquency trial — mental health treatment, foster care, supervision, and services.

Given what appear to be undisputed facts — that the child brought a firearm to school and shot a teacher — it seems highly likely that a court would determine the child to be in need of supervision. Following that determination, the court will almost certainly order a panoply of professional evaluations to determine which services would be appropriate to address the child’s needs.

The child’s parents may also face legal consequences of their own. At this point, no facts have been reported about the child’s home life or about the circumstances of his access to a firearm. However, the child’s parents or guardians could be criminally prosecuted if the relevant investigations show that the conduct of such individuals demonstrates culpability of their own. What, if any, charges the parents might face would be highly dependent on the facts preceding the child’s shocking shooting.

Parents have been prosecuted in other cases when their negligence has allowed a child access to a firearm. For example, in a recent high-profile case, the parents of 15-year-old Ethan Crumbley are currently being prosecuted for a mass shooting Crumbley carried out in 2021 at his Michigan high school. Crumbley has since pleaded guilty and awaits sentencing

Virginia’s Department of Social Services could also take action against the parents or guardians in civil court, which might include removal of any children in their care or adjudging them abusive or neglectful.

The teacher, Abby Zwerner, could also choose to file a civil case against the student or his parents or guardians. Zwerner might have the option of holding the child’s parents accountable for the shooting under a principal/agent theory; if so, state law would allow her to bring a legal claim against them for up to $2,500 for the child’s conduct. Moreover, if the parents committed their own wrongdoing (such as negligently providing access to the firearm, or failing to react to signs that the child had plans of violence), the teacher could bring claims against them directly for their own misconduct.

Elura Nanos is a former civil prosecutor for New York City’s Administration for Children’s Services and a trial analyst for Law&Crime.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos