The  press release by upstate New York Senator Joe Griffo (R-C-I, Rome) was deeply touching. Maybe “touching” isn’t the right word here.

The New York State Senate today passed a bill that creates the crime of aggravated harassment of a police or peace officer. The bill  (S.2402), sponsored by Senator Joe Griffo (R-C-I, Rome) would make it a felony to harass, annoy, or threaten a police officer while on duty.  

“Our system of laws is established to protect the foundations of our society,” Senator Griffo said. “Police officers who risk their lives every day in our cities and on our highways deserve every possible protection, and those who treat them with disrespect, harass them and create situations that can lead to injuries deserve to pay a price for their actions.”

A felony? Because protecting the foundations of society requires us to treat cops more respectfully? Perhaps they don’t teach civics in the Rome public schools? The only thing surprising about this bill is that Griffo didn’t include state senators as well, since they clearly don’t get much respect.

“At a time when shocking incidents of disrespect and outright confrontation are at an all-time high, the men and women who patrol the streets of our cities deserve every possible protection we can offer them,” Senator Griffo stated.

Apparently, there is an epidemic of disrespect, an all-time high, that no one but Griffo is aware of, causing police officers to feel badly about themselves. If so, I know I’ve certainly contributed to hurting police officers’ feelings on occasion. Now I feel ashamed of myself for saying mean things about the people who deserve every possible protection we can offer them.

“My bill would make it a crime to take any type of physical action to try to intimidate a police officer. This is a necessary action because we can see from the rise in incidents that too many people in our society have lost the respect they need to have for a police officer. We need to make it very clear that when a police officer is performing his duty, every citizen needs to comply and that refusal to comply carries a penalty.”

Aha! So it’s not just hurting feelings, but “physical action to try to intimidate a police officer.” Well, that’s interesting. And by “intimidate,” Griffo means “every citizen needs to comply” when a cop is performing his duty?  This press release appears to present strings of meaningless phrases connected in such a way as to give the appearance of offering something substantive while ultimately saying nothing.

So what does Griffo’s bill, passed by the Senate, provide?

S 240.33 AGGRAVATED HARASSMENT OF A POLICE OFFICER OR PEACE OFFICER.

    A  PERSON  IS  GUILTY  OF AGGRAVATED HARASSMENT OF A POLICE OFFICER OR   PEACE OFFICER WHEN, WITH THE INTENT TO HARASS, ANNOY, THREATEN OR  ALARM   A  PERSON  WHOM HE OR SHE KNOWS OR REASONABLY SHOULD KNOW TO BE A POLICE   OFFICER OR PEACE OFFICER ENGAGED IN THE COURSE  OF PERFORMING HIS OR HER   OFFICIAL DUTIES, HE OR SHE STRIKES, SHOVES, KICKS OR OTHERWISE  SUBJECTS  SUCH PERSON TO PHYSICAL CONTACT.

    AGGRAVATED  HARASSMENT OF A POLICE OFFICER OR PEACE OFFICER IS A CLASS   E FELONY.

Griffo’s nonsensical and meaningless hyperbole aside, the purpose of the bill is to extend the protections of Penal Law §120.08 for an assault on a police officer, a class C felony, requiring the cop to suffer “serious physical injury,” to situations where they suffer no injury at all.  While the meaningless intent language is shared by other offenses, the conduct here applied to anyone who “strikes, shoves, kicks or otherwise subjects” a cop “to physical contact,” which apparently means any touching at all.

While many argue for their right to physically oppose police officers, in the course of performing their “official duties” (note that it doesn’t say lawful duties), when they act either without lawful authority or, more significantly, when they beat the daylights out of someone for no particular reason, this bill would create a felony out of any touching whatsoever. 

It appears that the foundation of Griffo’s rhetoric, that there is some epidemic of harassment of cops that hurts their sensitive feelings, coupled with people touching them, exists only in the minds of those in a large room in Albany.  It certainly isn’t reality on the street, where the worst of the harassment is the blood people’s heads leave on the ends of batons, or the damage people to do taser darts with their rock-hard bodies.  In other words, this is a cure for non-existent problem.

But far, far worse is the potential for abuse. At least where evidence of an actual physical injury is required, an officer can’t claim a “touching” that leaves no proof of it ever happening, even though an injury fails to explain who did what to whom.  At least there’s evidence that something happened here. With this bill, there need be no evidence but for the officer’s word.  What could possibly go wrong?

The message this sends is similarly alarming. Are Griffo and his senatorial cohorts seriously contending that the heart and soul of society is to comply with police officers?  Did he get his words backwards, and maybe mean to say that cops are public servants who must be compelled to respect the constitutional rights and physical integrity of the public?  Sadly, I’m pretty sure he meant what he said, inane as it may be.

Does this mean that a person who taps a police officer on the shoulder to ask for directions, thus annoying the cop who is carefully focusing his attention on the new donuts being laid out on the racks of Dunkin’ has committed a felony?  Well, potentially yes, but it’s not likely the way the law will be used. Rather, this would be more likely akin to resisting arrest, a weapon in the cops’ arsenal to ensure compliance upon pain of a felony charge. 

It will take all of five minutes for a few magic words to find their way into an accusatory instrument to teach people that inadequate compliance with a cop means they’re in for a much harsher ride.  But what of the touching, you ask?  Well, it’s really not much of a stretch to toss in some language like “and the defendant subjected the officer to physical contact by touching his hand to the officer’s body.” Prove it didn’t happen?

Just nuts.  Let’s see whether the legislature sees a similar epidemic to soothe the cops’ delicate sensibilities.

H/T @Boatfloating

It’s not my norm to post press releases, but the following release from a new advocacy group called Blind Justice* is worth mention mostly because they put their money where their hearts and minds are.

CAMPAIGN EXPOSING PERILS OF PROSECUTOR MISCONDUCT TO HIT MANHATTAN TELEVISION AND TIMES SQUARE

Blind Justice Launches Ad Campaign to Alert New Yorkers to the Dangers of Unchecked Prosecutors and Urge Cy Vance to Hold His Prosecutors Accountable

 

WASHINGTON, D.C. (June 5, 2013) – Blind Justice, the national nonprofit advocate dedicated to conviction integrity, today announced the launch of a Manhattan focused ad campaign bringing to light the damages caused by unchecked prosecutorial misconduct and calling for accountability in an effort to prevent future wrongful convictions. The new campaign will kick-off today with a series of television ads highlighting real cases of prosecutor misconduct and a 10-second feature ad on the CBS Super Screen in Times Square.
 

 

The television ad series titled “Conviction at Any Cost” will air on multiple networks in the Manhattan area and are available to view at www.blind-justice.org.

Each ad features transcript statements from a deposition of New York County prosecutor, Bureau Chief Kerry O’Connell who withheld witness testimony, hid key evidence and failed to disclose third-party confessions that could have proven the innocence of the wrongfully convicted at the time of the trial in the case featured. 

 

“Every government official needs oversight, especially those powerful enough to put an innocent man behind bars. The Manhattan district attorney can no longer turn a blind eye to the pattern of prosecutor misconduct in New York City courts. Prosecutors that are powerful enough to send an innocent man to prison for life must be held accountable,” says Torin Kelly, Executive Director of Blind Justice.

 

The “Conviction at Any Cost” television ads will air alongside a series of 10-second ads running once an hour, 18 times a day through the end of September, in one of the world’s most famous advertising venues – Times Square.  

 

“Times Square is the perfect venue to launch our ad campaign demonstrating that ‘win-at-all-costs’ prosecutors are a dangerous problem in Manhattan that can no longer be ignored by elected leaders who campaigned on conviction integrity,” concluded Kelly.

 

The new ad campaign in the Manhattan area follows the 501(c)(4) social welfare organization’s national launch last month that included television ads calling for prosecutor accountability in Brooklyn, N.Y. and Houston, Texas.

This is the television ad that will start airing in Manhattan:

Say what you will, but they are spreading their word about prosecutorial responsibility. Who doesn’t want prosecutors to be responsible for their actions? And if courts and bar disciplinary authorities won’t act, then why not Blind Justice?

Whether this will be effective in getting the public to recognize and understand the problem of prosecutorial misconduct, and perhaps even come to understand why it’s a problem in need of address, has yet to be seen, but you can’t blame Blind Justice for trying.

* We walked in, sat down, Obie came in with the twenty seven eight-by-ten colour glossy pictures with circles and arrows and a paragraph on the back of each one, sat down. Man came in said, “All rise.” We all stood up, and Obie stood up with the twenty seven eight-by-ten colour glossy pictures, and the judge walked in sat down with a seeing eye dog, and he sat down, we sat down. Obie looked at the seeing eye dog, and then at the twenty seven eight-by-ten colour glossy pictures with circles and arrows and a paragraph on the back of each one, and looked at the seeing eye dog. And then at twenty seven eight-by-ten colour glossy pictures with circles and arrows and a paragraph on the back of each one and began to cry, ’cause Obie came to the realization that it was a typical case of American blind justice, and there wasn’t nothing he could do about it…

From all accounts, Sean Thomas had a  pretty good cause of action against three New York City cops for excessive force.

When Sean Thomas sued three New York City police officers in 2009, claiming they had used excessive force against him, he appeared to have a strong case. After his arrest the previous year during a dispute with his girlfriend at her home in the Bronx, he was handcuffed, wrapped in a restraint blanket, strapped to a stretcher and taken to the hospital where he was involuntarily sedated, according to court documents. He was never charged with any crime.

On Nov. 19, 2012, less than a month after the damages were awarded, David Zelman, one of Mr. Thomas’s lawyers, sent a letter to Judge Carter, telling him that he had recently learned of the agreement.

[I]n an order released on Tuesday, a judge threw out the verdict and ordered a new trial. It seems that just days before Ms. Marrow had appeared in court, Mr. Thomas signed a written agreement promising to give her 20 percent of any damages he received if she testified on his behalf.

Under New York law, it is not permitted to pay a witness in exchange for favorable testimony, Judge Carter wrote. The agreement was signed and notarized on June 30, 2012, three days before Ms. Marrow testified and backed up Mr. Thomas’s version of the events.

“She said, ‘If you don’t sign this, I’m not going to court,’ ” Mr. Thomas said, according to court documents.

In a powerful post,  Jeff Gamso quotes from a 1999 dissent by the late Chief Justice of Ohio, Tom Moyer in the sadly appropriately named State v. Fears :

Time and time again this court has commented on the impropriety of a prosecutor’s argument throughout the course of a capital case. Time and time again we have given prosecutors the benefit of the doubt, declaring their conduct to be nonprejudicial in view of overwhelming evidence of guilt.
However, despite our best efforts to clarify the limits of acceptable advocacy, and our stern warnings to avoid such inappropriate conduct in the future, some prosecutors continue to unabashedly cross the line of vigorous but proper advocacy. In doing so, they taint the fairness of our criminal justice system.

Ohio’s late Chief Justice, Tom Moyer, wrote that in 1999.  Admonition without consequence.  Threats without substance.  Next time.  One of these days.  Just wait.  

The onslaught of litigation brought by “patent trolls” — who typically buy up a slew of patents, then sue anyone and everyone who might be using or selling the claimed inventions — has slowed the development of new products, increased costs for businesses and consumers, and clogged our judicial system.

Their business plan is simple: trolls (intellectual-property lawyers use less evocative terms like “non-practicing entities” and “patent-assertion entities”) make money by threatening companies with expensive lawsuits and then using that cudgel, rather than the merits of a case, to extract a financial settlement. In the apt summary of President Obama, who on Tuesday announced a plan to stave off frivolous patent litigation, trolls just want to “ hijack somebody else’s idea and see if they can extort some money .”

Lost in the debate, however, is that judges already have the authority to curtail these practices: they can make trolls pay for abusive litigation.

Section 285 of the Patent Act, as well as Rule 11 of the Federal Rules of Civil Procedure, give judges the authority they need to shift the cost burden of litigation abuse from the defendant to the troll. But remarkably, judges don’t do so very often: by our count , fees were shifted under Section 285 in only 20 out of nearly 3,000 patent cases filed in 2011.

Though it’s been less than 24 hours since the Supreme Court issued its opinion in Maryland v. King approving the Maryland law that permits the taking of DNA from presumptively innocent defendants, the blawgosphere is already awash in posts decrying the  intellectually bankrupt rationale of Justice Kennedy,  extolling the bombastic outrage of Justice Scalia and exposing the  constitutional duplicity of Justice Breyer. No one needs me to add to the misery, so I won’t.

But I will take heed of Gerard Magliocci’s post at  Concurring Opinions about slippery slopes.

With the . . . ahem . . . annual avalanche of Supreme Court opinions on the way, I thought I’d raise a question about how slippery slope arguments play out.  The reason advocates make this sort of argument is that they want to convince someone not to do something.  If A leads to B and B is seen as unacceptable, then people will be less likely to do A if they are convinced that there is no line between them.  The problem, of course, is that this tactic can backfire.  It might convince people that there is no distinction between A and B when they thought that there was, and thus make B more likely once A happens.

Unlike the rest of humanity, lawyers never do monumentally stupid, embarrassing and humiliating things. Almost never. Well, maybe just as often as anyone else.

Rarely is any mention of it made here, unless there is some point to be made that illuminates matters for the rest of us. It’s not just offered for its titillating or salacious value, to grab eyeballs of people who can’t get enough of snarky cat memes and who learned about sex on the internet. 

But this post at a UK blog calld  Legal Cheeks disturbed me.  A Brooklyn solo practitioner, Stephanie Hendricks, had a really bad day and ended it drunk and stupid.  Very drunk and very stupid. It had absolutely nothing to do with her being a lawyer, and offers no insight to lawyers other than to avoid getting very drunk and stupid. But this is a message for everyone, not just lawyers.

Why?  Her story appeared in the New York Post, a tabloid known for its hard-hitting, deeply thoughtful content. So let’s spread the word around the blawgosphere in order to free ride off the salaciousness of her having removed certain articles of clothing and uttered some particularly poorly chosen words to police officers.  Like I said, she had a very bad day.

Adding insult to injury, this is the sort of thing likely to appear in Above the Law, where no humiliating moment that happens to a lawyer, without regard to whether it’s of any consequence to her professional responsibilities or performance, is offered to titillate the senses of young lawyers whose own lack of a life is fulfilled by Staci Zaretsky’s posting dirty stories on the internet.  Oops. Too late, it’s already there.

There is an allegation that Hendricks ran off without paying a $6 cab fare before, well, other things happened.  Whether that’s true, and whether that was a by-product of her drunkenness or a deliberate act, might be fair for commentary, but let’s be real here. Had she not been naked from the waist down, and not spoken as she did to cops, nobody would ever care about the $6 cab fare.

It’s one thing to raise and discuss things done by lawyers that provide lessons in what to do, and what not to do, in the conduct of our practices, our representation of clients, our integrity as professionals. Lawyers certainly do plenty to feed the discussion of wrongs that need to be righted.  But this was nothing, a person who got drunk and behaved incredibly poorly. That the person happened to be a lawyer is irrelevant.

When the blawgosphere resorts to spreading stories which serve no purpose other than to humiliate people who happen to be lawyers, stories which offer nothing of value or thought, and are posted merely to titillate, it makes us puny.

Have you never seen a naked person before? Have you never heard rude words? Big deal. Grow up and get over it.  We don’t embarrass people for no reason.  When we do, we embarrass ourselves and our profession.  This was disgraceful, and it’s unbecoming to get your kicks off someone else’s really bad, and wholly irrelevant, day.

Are you proud of yourselves for getting a cheap laugh out of Stephanie Hendricks’ drunken behavior?  If so, you really need to grow up.

In a decision that can only be described as weirdly right, the Appellate Division, Second Department vacated the Queens County  convictions of Walter Hurdle for assault 1 and assault on a police officer. It’s not that Hurdle didn’t do it, or that the officer, Sgt. John Pagnotta, wasn’t hurt. According to the decision, he was severely hurt.

And yet, the court held that Hurdle lacked the requisite intent element, in this case depraved indifference pursuant to Penal Law § 120.10(3).

On January 18, 2007, at approximately 8:00 p.m., the defendant was sitting in his legally parked vehicle, a black SUV, when an unmarked police car pulled up to the driver’s side of the SUV, and one of the four uniformed officers in the car, Sergeant John Pagnotta, had a brief conversation with the defendant. Unsatisfied with the defendant’s answers to his questions, the sergeant directed the officer driving the police car to pull in front of the SUV and park at an angle, blocking the defendant from pulling out of his parking space. The officers then exited the police car and approached the SUV. Sergeant Pagnotta opened the door on the driver’s side of the defendant’s vehicle; standing between the door and the door jamb, he continued to question the defendant. When Sergeant Pagnotta ordered him to exit the car, the defendant shifted into drive and pressed his foot down on the gas pedal, crashing the SUV into the police car in front of it and dragging Sergeant Pagnotta, trapped between the door and the door jamb of the SUV. When the SUV pulled away from the police car, Sergeant Pagnotta was released and thrown into the middle of the street, where he was almost hit by an oncoming car. As a result of this incident, Sergeant Pagnotta sustained severe injuries.

In fact, not only was the evidence insufficient to establish that the police had an objective, credible reason for approaching the defendant in the first place but, also, Sergeant Pagnotta’s testimony indicated that the initial approach was a mistake, since Sergeant Pagnotta had intended for the officer driving the police car to pull up to a grey car parked behind the defendant’s vehicle. Furthermore, neither the defendant’s startled demeanor nor his responses to the police inquiry provided the officers with “the quantum of knowledge to induce an ordinarily prudent and cautious man under the circumstances to believe criminal activity [was] at hand.”

The People’s attenuation argument is unpreserved for consideration upon appeal (see People v Hunter, 17 NY3d 725, 728; People v Nieves, 67 NY2d 125, 135-136) and, in any event, is without merit.

“‘Reflecting wickedness, evil or inhumanity, as manifested by brutal, heinous and despicable acts, depraved indifference is embodied in conduct that is so wanton, so deficient in a moral sense of concern, so devoid of regard of the life or lives of others, and so blameworthy as to render the actor as culpable as one whose conscious objective is to kill [or to cause serious physical injury to another person]’” (People v McMillon, 31 AD3d 136, 139, quoting People v Suarez, 6 NY3d 202, 214). “The element of depraved indifference to human life comprises both depravity and indifference, and has meaning independent of recklessness and the gravity of the risk created”

Via Doug Berman, a new  law review article from University of Texas lawprof Susan Klein suggests that Gideon, having failed to deliver on its promise, the criminal justice system has been turned into the plea bargaining system.

Yet fifty years later, indigent defendants, (who comprise 80% of total defendants), often get substandard counsel, and innocent individuals are rarely, but sometimes convicted or plead guilty. Some of the blame falls squarely on the Court for settling on the contours of our current two-pronged test in Strickland versus Washington, that determines when counsel is ineffective and the defendant is accordingly prejudiced. Some blame falls on legislators for failing to adequately fund defense counsel. Our criminal justice evolved from an adversarial system to what Judge Lynch calls, “a defacto administrative regime”. The criminal justice system is the plea bargaining system.

In this essay, the author posits that last term’s Lafler versus Cooper and Missouri versus Frye gave us another chance to both police equality of sentences for the guilty, and to mandate better investigation of the underlying offense to ferret out the innocent. Information and resource disparity skews the system. The defense bar cannot buck a system stacked so heavily against them. Large-scale structural reform such as legislation or proper funding for defense is equally unlikely. Plea bargaining has failed.

Professor Klein suggests that our most politically feasible hope for reform is for federal and state judges to amend the rules of criminal procedure in order to monitor and record the discovery and plea negotiation process via nonwaivable conferences.

A second proposal is for the Department of Justice and local District Attorneys’ Offices to implement internal guidelines to regulate the timing and content of plea negotiations and discovery procedures. Though the Court imposed its new Sixth Amendment duties on the defense bar, it is prosecutors who have the incentive to ensure the finality of guilty pleas and to stave off potentially harsher legislative or judicial action in this area.

A letter to the editor appeared in the  New York Times from former New York County District Attorney, Robert M. Morgenthau. Morgy is old now, and out of office, but in his day he was the most powerful politician in New York.  Not up front, giving speeches or kissing babies, but a word from Morgenthau could change the political landscape. 

And now, he wrote a letter to the editor, not to extol the virtues of the system he carried for decades, but to complain of its failure.  This is an extraordinary thing.

On Tuesday [May 28th], the United States Supreme Court declined the opportunity to correct an egregious Brady violation that put William E. Kuenzel on Alabama’s death row 25 years ago.

Mr. Kuenzel was convicted in 1988 of killing a convenience store clerk. During the trial, the prosecutors assured Mr. Kuenzel’s lawyer that, in accordance with the Brady rule, they had turned over all potentially exculpatory evidence to the defense.

Twenty-two years passed before Mr. Kuenzel discovered that the prosecutors had concealed revealing police notes and grand jury testimony that supported his unwavering claim of innocence.

A brief description of the Brady violation follows. A rather pedestrian concealment of details that would have given Kuenzel the tools to fight the charges. There was no DNA to scientifically prove anything, but a basic Brady violation.

Mr. Kuenzel asked the Supreme Court for the chance to present this obvious Brady violation in federal court. The Supreme Court could have cut through the legal thicket of procedural impediments and held the state government accountable for flouting Brady.

But the court refused. As a result, the unthinkable consequence of the toothless Brady rule will be that an innocent man is executed and the prosecutor goes unpunished for his misconduct.

Remarkable words coming from a man who was DA for 34 years, and U.S Attorney before that.  Morgy was part of a trio who put their names to an amicus brief in support of certiorari, along with former Los Angeles DA Gil Garcetti and Milwaukee DA E. Michael McCann.  As they make clear up front, they are not people to be trifled with.

Indeed, one of those baby prosecutors Morgy trained who went on to serve in a judicial capacity was none other than Associate Justice Sonia Sotomayor. Of course, there was no need to mention this detail, and she knew where she came from.

They go on to concede the “truism that prosecutors’ offices and juries occasionally make mistakes, even if ever so rarely.” (My italics.)  And this case, the three former prosecutors contend, is that ever so rare mistake.

The gist of their amicus argument is that the procedurally-defaulted first-time habeas petitioner shouldn’t be saddled with the additional burden of Schlup v. Delo, presuming guilt and requiring him to show the probability of innocence before being entitled to a hearing.  They argue such a clarification of the burden will “ensure the fairness and accuracy of convictions,” and thus the integrity of convictions and imposition of the death penalty.

That a petition for cert by a death row inmate is denied is routine. That a petition with the support of Morgenthau, Garcetti and McCann as amicus is denied is ever so rare.  Claims of innocence by death row defendants with DNA to back them up have become something of the darling of innocence, having both the ability to meet the burden with scientific evidence that takes the burden off the courts. 

Even so, they don’t always succeed.  They still provide that painful glimpse into the working of a machine that convicts the innocent through the same ordinary, reliable methods that are adored by prosecutors, juries and judges, even though the ever so rare event that an innocent person is wrongfully convicted happens. It makes it increasingly hard to mouth the word integrity, knowing that in the absence of scientific evidence, there would be nothing to slow down the plunge of the needle.

The irony here, of course, is that when the sentence is death, even former prosecutors demonstrate an elevated concern for the integrity of the conviction.  Remember those 7,000,000 criminal proceeding for which these three former prosecutors are responsible? How many of those convicted innocent defendants?  There must be some, by their measure, even if mistakes are ever so rare.

Yet, no one can fault Morgenthau, Garcetti and McCann for signing on as amicus in support of William Kuenzel, who was convicted upon a failure of the “toothless Brady” and will now be put to death.  That they stood up for innocence, for Brady, is worthy of respect.

And now these three former District Attorneys know what it feels like to be a criminal defense lawyer, when despite their power, their bona fides, their more than 100 years of combined prosecutorial experience, the Supreme Court denied the petition without a word.  Perhaps Morgenthau trained his prosecutors too well.

After the recent spate of stories about grade schoolers violating zero tolerance policies with lego guns, pastry guns, itty-bitty sized guns, a  Hello Kitty gun that blows bubbles and unloaded fingers pointed in a gun-like shape, there is relatively unanimous agreement that this reflects a inane over-reaction to gun violence in schools, with the notable exception of school administrators.

But is there a line to be drawn below that of actual weapons?  It’s easy to ridicule the utterly absurd application of these zero tolerance rules as applied to pop tarts, but what about a toy gun that wasn’t created by teeth?  Via The Washington Post :

A kindergartner who brought a cowboy-style cap gun onto his Calvert County school bus was suspended for 10 days after showing a friend the orange-tipped toy, which he had tucked inside his backpack on his way to school, according to his family and a lawyer.

The child was questioned for more than two hours before his mother was called, she said, adding that he uncharacteristically wet his pants during the episode. The boy is 5 — “all bugs and frogs and cowboys,” his mother said.

“I have no problem that he had a consequence to his behavior,” said the mother, who asked that her name be withheld to protect her son’s privacy.

“What I have a problem with is the severity,” she said, and the way it was handled.

If the punishment stands, it would become part of the boy’s permanent school record and keep him out of classes the rest of the school year, the family said. He would miss his end-of-year kindergarten program at Dowell Elementary School in Lusby.

The mother said the principal told her that if the cap gun had been loaded with caps, it would have been deemed an explosive and police would have been called in.

The case comes at a time of heightened sensitivity about guns in schools across the country.