The city prosecutor in Newport News, Virginia, said Wednesday that he would not seek charges against the 6-year-old boy who shot his elementary school teacher in January but has yet to decide whether any adults associated with the case could be held criminally liable.
In an interview with NBC News, Newport News Commonwealth's Attorney Howard Gwynn said the "prospect that a 6-year-old can stand trial is problematic" given that a child that young wouldn't have the competency to understand the legal system and what a charge means or adequately assist an attorney. It's not unheard of for an adolescent of that age to be arrested in general, and theoretically, a 6-year-old child could be criminally charged under Virginia law.
But Gwynn said that he does not believe there is a legal basis to charge a child and that his office, after receiving the case in February from Newport News police, is focusing on others.
"Our objective is not just to do something as quickly as possible," Gwynn said. "Once we analyze all the facts, we will charge any person or persons that we believe we can prove beyond a reasonable doubt committed a crime."
The shooting on Jan. 6 at Richneck Elementary School in Newport News has led to a potential lawsuit expected to be filed on behalf of the teacher, Abigail Zwerner, the ouster of the school's superintendent and an assistant principal, and the installation of metal detectors.
According to a lawyer for Zwerner, a first-grade teacher, the boy had behavioral issues and a pattern of troubling interactions with school staff and other students. A notice of intent to sue said the boy was given a one-day suspension for breaking Zwerner's cellphone, and returned the next day with a 9mm handgun that he used to shoot his teacher in the classroom while she sat at a reading table.
Diane Toscano, Zwerner's lawyer, said at a news conference in January that three teachers went to the school administration about the boy's behavior and that he was believed to have had a gun on campus.
Toscano said the shooting was "entirely preventable" if the administration "had taken action when they had knowledge of imminent danger," adding, "But instead, they failed to act, and Abby was shot."
Zwerner, 25, was seriously wounded in a hand and her chest, but police said she still managed to safely escort about 20 students out of her classroom. She was hospitalized for nearly two weeks.
Newport News Police Chief Steve Drew has described the shooting as intentional. In a Facebook Live video last month in which he said prosecutors would begin reviewing the case, Drew told viewers that it took time for detectives to interview children and examine forensic evidence.
"This is a lot more than just someone bringing a gun to school and that gun was found," he said.
In the wake of the shooting, the family of the 6-year-old boy said in a statement that the weapon was "secured" in the home and that they have "always been committed to responsible gun ownership and keeping firearms out of the reach of children."
The family also said the boy has an acute disability and was receiving the "treatment he needs" under a court-ordered temporary detention at a medical facility.
Police said the child's mother legally purchased the gun he used, but haven't specified how he obtained it or if it was safely secured as the family has claimed.
Both a lawyer for the boy's family and the law firm representing Zwerner declined to comment Wednesday about the prosecutor's ongoing investigation and his decision not to seek charges against the child.
A spokeswoman for the Newport News School District said it had no additional comments about the investigation, and the district has previously said it couldn't share any information in the child’s educational record, citing the police investigation.
Gwynn told The Associated Press last month that his office had received three binders of information from police in the case. His team is also reviewing police bodycam footage of officers who responded to the scene.
Legal experts had previously said the child is unlikely to face charges because of competency concerns, although his parents could be charged with reckless endangerment or child neglect.
Gwynn said that if there is a decision to charge someone in connection with the case, it would either be through a grand jury or in consultation with police.
While there is no timeline for when charges might be brought, Gwynn drew a distinction with a parallel incident in Norfolk, Virginia, last month in which charges were quickly filed against a mother whose 6-year-old brought a gun to an elementary school. In that case, no one was injured and police charged the mother with contributing to the delinquency of a minor and allowing a child access to a loaded firearm.
"In our case, the police decided to turn the file over to us to make a decision," Gwynn said. "And we have to make our decision based on our ability to prove beyond a reasonable doubt a crime occurred."