Home » Perspective » A ‘trillion’ reasons not to prosecute this 10-year-old

By Ken Paulson, published on July 15, 2022

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Imagine Dan, a 40-year-old neighbor who after a few beers decides to start texting you, claiming he conned someone out of a trillion dollars. A bit later, he texts that he spent the money on an automatic rifle. He then texts that he’s looking forward to Labor Day.


What would the consequences be for middle-aged Dan? Well, you would avoid talking with him at the next neighborhood cookout perhaps, but otherwise you would just write him off as a blowhard.


Now imagine if Dan were just 10 years old. He sends a text to a young classmate saying, “I scammed my friend” out of a “trillion” dollars. A later text with an image of an automatic weapon says, “I bought this.” Another text conveys his excitement about the “Water Day” festivities at school.


Unlike the fictional middle-aged Dan, Dan the real-life child was arrested by the Lee County (Fla.) Sheriff’s Department. A judge then ordered the boy held in secure detention for 21 days, though he was released after just 12 after falling ill.


In the meantime, Sheriff Carmine Marceno went on what the Fort Myers News-Press called a “whirlwind media tour” to talk about his zero-tolerance policy for school threats. Despite his status as a juvenile, the boy’s name was shared with the world, as was his “perp walk.”


Despite near-universal confidentiality for minors in the criminal-justice system, Marceno told the Naples Daily News/News Press that he would make an exception in cases like these.


“We’re going to handcuff them, we’re going to post their picture and there’s going to be a perp walk,” he said. “I don’t care who it is. I don’t care what age it is.”


There are a lot of questions about how Lee County has handled this case, but the first and foremost is, “Do any of you know actually know any 10-year-olds?”


What this 10-year-old did was exactly what 10-year-olds do. He said goofy things to a buddy. What he did not do was threaten anyone.


The First Amendment protects Americans’ right to shoot their mouths off — even young ones. We should all be grateful for that. What is not protected is what courts call a “true threat,” defined by the 2nd U.S. Circuit Court of Appeals as a threat that “on its face and in the circumstances in which it is made is so unequivocal, unconditional, immediate, and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution.”


The 10-year-old’s texts were none of those things. They were silly, scattered, and totally devoid of “gravity of purpose.” The First Amendment bars prosecution unless a specific threat is made with a calculated intention of terrifying another. There was no anonymous call to the school. There was no threat to the student body. There was no public post. There was no scrawled manifesto. It was one boy texting another, and the latter’s father going to the police. 


The boy’s first text claimed he scammed a friend out of a trillion dollars. The sheriff would never consider using that text to make an arrest for fraud. The child said he used the trillion dollars to buy an automatic rifle. The sheriff wouldn’t dare to use that as evidence of the underage purchase of a gun. So what’s left? The young man said he was looking forward to special school event, also eagerly anticipated by his classmates. And for that, he’s charged with a crime.


It’s too easy to forget that young people are citizens just like the rest of us, and they’re protected by the U.S. Constitution. Yes, courts have ruled that minors grow into their rights, but the core principles of equal protection under the law are there at birth. 


True threats of all sorts — against schools, health officials, librarians, police officers and many more — need to be properly investigated and prosecuted. But that means focusing resources on pursuing those who strive to intimidate, not children who claim to have come into a trillion dollars.


If the Sheriff’s Department had a genuine concern about the potential for school violence, shouldn’t the first step have been a stern conversation with the young man with his parents present? Wouldn’t that have been a sensible alternative to a perp walk and public humiliation of this child? Then again, common sense doesn’t go viral.


Ken Paulson is a professor and director of the Free Speech Center at Middle Tennessee State University.




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