"I didn't mean it that way" IS NOT A LEGAL DEFENSE. How good kids get into big trouble with smartphones in their pockets.

By: Corinne Sumpter & David Gonzalez

You just finished a wonderful vacation sailing a catamaran in the Caribbean. 

The boat was large enough for two families, and your husband and your friend’s husband got along famously.  The kids got along great, the weather could not have been more cooperative.  This is one of those vacations where you just don’t want to go home.

Unbeknownst to you, you’re about to get your wish. 

While packing to head back to the States, you notice that there’s a small box of ammunition in your suitcase leftover from when your husband had used your suitcase on a hunting trip with friends over the winter. Somehow, you hadn’t seen it when you packed before your trip, and it had apparently also gone through customs from the United States to Antigua without anybody asking. 

“Just throw them away,” your husband says. 

“No – I’m not just going to leave bullets laying around,” you reply. “Besides - I looked online; it’s fine so long as you leave them in your checked luggage.”

▪           ▪           ▪

You’ve just printed your boarding passes and are checking your bags at the airport in Antigua when you hear your 13-year old son’s name called over the loudspeaker.  Your son asks you if they’re really calling for him, so you decide to head over to the counter with him. 

“Is this your bag?” the airport security officer asks when you approach. 

“No, it’s mine,” you reply. “We’re together. I just put the baggage stickers on our suitcases in random order.” 

The officer asks you to wait. You wait.  You tell your 13-year old to catch up with everybody else and go through security; you’ll meet them by the gate. 

Except you never arrive.  

By the time you are given your cell phone for your “one call,” you’ve received dozens of panicked text messages: your family is on the plane waiting for you. The officer permits you one message. You write to your husband: They arrested me

▪           ▪           ▪

The next day goes so fast – and yet everything also seems like slow motion. 

You have a court hearing. 

Your husband hires a lawyer for you.

Your lawyer advises that you will plead guilty to possessing 20 rounds of ammunition. He will ask the judge for “extenuating circumstances.” You will pay a $10,000.00 fine and go home. 

Between the cost of the lawyer, the fine, booking new plane tickets, the extra night’s hotel – you are beside yourself that this one mistake will cost so much. 

And so you enter the courtroom. 

You plead guilty. 

The judge accepts your plea.

But the judge then sentences you to one year in prison.

Your lawyer tries to argue “extenuating circumstances.” The judge explains that recent changes to the law require a mandatoryminimum of one year in prison. You say there must be some sort of misunderstanding. Your lawyer apologizes profusely.  He says that they will try to sort this out as soon as possible.  He says hopefully you will not be in prison for more than a few weeks. 

You collapse as you are removed from the courtroom in handcuffs for transport to an Antiguan prison.

 

▪           ▪           ▪

 

This is not a fictional situation.   https://antiguaobserver.com/female-visitor-jailed-for-bringing-bullets-to-antigua/ 

But what in the world does an Austin mom being sent to an Antiguan prison on an ammunitions charge have to do with kids getting into legal trouble with their smartphones?  Actually, everything.  

HOW GOOD KIDS GET INTO BIG TROUBLE.jpg

Can a smartphone be used as a weapon?  Absolutely.

Can the words or pictures our kids type, post, share, “like,” etc. have the effect of seriously hurting themselves or someone else?  Definitely.

Do good kids really get arrested for things we find on their phones?  Yup.

Are parents surprised when their kids get arrested and expelled?  All the time.

Even though this mom was certainly not an arms smuggler, and she didn’t mean to bring the bullets into Antigua, the letter of the law is often enforced even when we feel it shouldn’t apply.  Our intent is sometimes not enough of a defense.

And sometimes, as parents, when we discover something our kids have said or done that is potentially concerning we want to just tell ourselves – as the mom with the ammo in Antigua did – it’s no big deal – it’s going to be fine.  While we adults may still be impulsive at times and make mistakes (even in our own digital communications!), our teenagers’ brains are only half-cooked, and kids are developmentally supposed to make mistakes and learn from them. Unfortunately, the types of mistakes kids are making on their smartphones have become increasingly criminalized, and the consequences at school and under the law can be very serious. Though they may not find themselves imprisoned in a Third World country, they may very well find themselves in juvenile detention.   

Even unintentionally.

▪           ▪           ▪

As our communities continue to be rocked by story after story of mass school shootings and kids committing suicide after being ruthlessly cyberbullied, the stakes are extremely high.  Those in authority simply can’t afford to take any chances.  Everything must be treated seriously, just in case.  

Post-Columbine [and Sante Fe and Parkland and…] any joke, comment, post, etc. made by a student that can be perceived as a threat results in school removal or expulsion and related criminal charges. While this may be jarring to parents of good kids who jokingly say the wrong thing, it is not even a question for Assistant Principals, School Resource Officers, Principals, teachers, prosecutors, magistrates, juvenile court judges and police officers. It is unfortunately the new normal. 

Take 15-year old Louisa,* for example.  There was a substitute in her English class.  She had finished her work.  Her boyfriend Philip was home sick that day, and she started texting him from her phone during class.  Philip asked her what was happening at school; she said she was bored.  As a joke, she added, Oh my god except a guy just came into our class with a gun, and now the police are pulling up!

A few minutes later, at home, Philip’s mom happened to see the text from Louisa on Philip’s phone and took it seriously, calling the high school in a panic. Immediately, dozens of police descended upon the school believing there was an active shooter situation.  When the campus was secured and police were given more information about the source of the “report,” Louisa was yanked out of class by the police, questioned, and arrested for Terroristic Threats (Texas Penal Code Section 22.07).  She also faced expulsion from school.

Or what about 13-year old Evan? Evan was like many teenage boys who spend hours and hours on multiplayer video games, playing against friends and smack-talking each other in the sidebar.  Evan was playing a Call of Duty-type war game, and the chats were getting more and more heated as the various players battled it out.  Evan and his friend Jake were playing against each other, each from their computers at their individual houses, chatting back and forth online at the same time.  They went on for hours, each upping the ante in their comments of how they were going to “take you out.”  At some point, Evan returned with, I am going to take you out and even blow everyone up at school tomorrow!”  With this comment, Jake got a little worried, and he showed his mom.   

Fast forward to 2:00 a.m.: Evan’s parents are awoken by a S.W.A.T. team surrounding their house and banging on their door, demanding to see Evan and search his computer and his room.   Evan, too, was arrested and charged with Terroristic Threats and faced school discipline for his “joke.”

But it’s not just about threatening mass school violence.  Damaging statements can often be more personal, more subtle, more anonymous, and more pervasive.  Contrary to the suggestion of its name, Texas’ Terroristic Threats statute covers more than what one might think of as “terrorism” (as in a school shooting).  It also criminalizes direct person-to-person threats, as in a threat of violence to any person or his/her property with the intent to place that person “in fear of imminent serious bodily injury.” 

So when your daughter posts I’m going to kill you if you transfer to my high schoolto a classmate from middle school, you better believe she could find herself facing a terroristic threats criminal charge.   If it happened at school, at a school-related event, on the school bus or from a school-issued account or device, she can be removed or expelled. Even if she posted it when she was at home, she may be subject to school discipline if the threat was viewed by the target or even other kids while they were at school (e.g. viewed on their phones during the school day) if it is determined that it “disrupted” the educational process in some way.

And then what about words that are not quite so clear?  

I wish you were dead 

You should die

Everyone knows what a slut you are

You deserve to be raped 

You’re going to be sorry

Welcome to the horrible world of cyberbullying.  

Bullying is, of course, nothing new. In 7th grade, Shelley Bogetich regularly told other 8th graders that I was her lesbian lover and made a big show every day of standing uncomfortably close to me in the locker room when we changed for PE.  She dragged me down the hallway by my hair.  She knocked my books out of my arms, scattering my binder and papers all over the floor during passing period.  She threatened to bash my face in with a bat when we were playing softball in PE.  Two other girls warned me they better not find me on the last day of school or they would put Nair in my hair, and told my friend they would rip the braces right out of her mouth.

I survived.  Many of you did too.  We all know stories of kids put into lockers or trash cans.  We’ve all read horrible things scrawled in black marker on bathroom walls.  Maybe we received “prank calls” as teenagers.  Maybe we made prank calls as teenagers.  

But the smartphone has taken bullying to another level.   

Most of the time, when kids text, post, or message ugly, mean or hurtful words, they don’t intend to cause the recipient actual mental anguish.  They probably aren’t thinking about the other person at all; narcissistic beings at this age, they are most likely only thinking of themselves. On top of this, our kids suffer a false sense of anonymity when communicating from an electronic device: something your child might never say face-to-face is much easier to post, alone, from the privacy of her own room.  Confusion and insecurity and emotion that used to be poured out in a diary, or in a letter that got crumpled up and never sent, is now public discourse, as kids share their every thought – even the mean and nasty ones – and seek, moment by moment, the acceptance of their peers through ‘views’ and ‘likes.’  

Unfortunately, “speaking” without thinking in the digital realm can have a larger audience and a more permanent record than most kids recognize in the moment, and saying I didn’t mean it that way later can’t erase it.   Kids love the power to connect with hundreds of their peers with one swipe or click, but they may not understand the attendant risks.  What would have been in our day a note written on binder paper or an incident witnessed by only a few can now spread like wildfire and be snapped and geofiltered and shared and posted and screen-shotted and reposted, ultimately viewed by hundreds who may not even personally know the target.  

The Texas Legislature responded just last year with “David’s Law” (S.B. 179, amending Texas Penal Code Section 42.07), which went into effect September 1, 2017, and honors David Molak, a San Antonio teenager who committed suicide in 2016 after years of horrible bullying. David’s law criminalizes cyberbullying, making it a class B misdemeanor (previously cyberbullying was subject to school discipline, but was not a separate crime).  Penalties for cyberbullying increase for repeat offenses or if the bullying was designed to get the victim to commit suicide or otherwise harm himself.  

 So those horrible words like you should die or you know you’re a slut, if texted from school repeatedly, or shared widely at school, or sent from home but discussed profusely among other students at school, will get our children arrested and transported to juvenile court to face the consequences.  Many juniors and seniors in high school, because they are 17 or over, would actually get arrested and processed through adult jail and face adult penalties.

And even apart from cyberbullying, parents are repeatedly shocked by the multitude of other criminal charges their children can face for the stupid, unthinking things they do with their phones.  For example, 10th grader Grant and his girlfriend Nicki had recently broken up. In the past, they had kept up a steady stream of texts and snaps and messages throughout the day – sometimes multiple messages every hour.  Once they had broken up, Grant continued to text Nicki at the rate they had before, asking her what she was doing, telling her he wanted to get back with her, begging her to respond.  When he was arrested for Harassment (Texas Penal Code Section 42.07) and Stalking (Section 42.072), Grant told his parents, but I wasn’t trying to upset her -- I just wanted her back!

Fourteen-year-old Marco really wanted Sofia to go out with him.  She didn’t seem to notice him, so he created a fake online profile that he attributed to one of his friends, and used it to pretend to be someone else to chat with Sofia and try to persuade her to get together “with Marco.”  When facing Online Impersonation charges (Texas Penal Code Section 33.07), Marco’s response was, I just wanted her to like me…

Katie, an 8th grader, was chatting online with a guy she liked but didn’t know very well from another school.  In the course of the back and forth, he asked her to send him a “pic,” which she took to mean a nude photo of herself.  While some kids she knew would do that, she was outraged because she hardly knew him.  She shot back, no! you send one yourself!  Which he promptly proceeded to do.  When Katie received the nude photo, she was shocked, and forwarded it to her friend with a message, oh my god, can you believe he just sent this?  Faced with two criminal sexting charges (Texas Penal Code Sections 43.261 and 21.15) – one for possessing the photo, and one for sharing it – Katie protested, but I didn’t mean for him to actually send me one!

▪           ▪           ▪

The mom with the ammo no doubt wishes now she’d just pitched those bullets like her husband had suggested.  Or that she’d noticed them in the suitcase before they ever left for vacation.  Such a quick, seemingly small decision -- with such huge consequences. 

We live in a sphere where context and intent matters; however, the law – so black and white – sometimes doesn’t seem to care.

So what can we parents do to help our kids avoid similar regrets?

o  Monitor.  Review what your kids are writing, posting, messaging.  Know their social media accounts and have all passwords to all accounts and devices.  If they try to tell you it’s “private,” buy them an old-fashioned diary in which to write their truly private thoughts – and explain that nothing on social media or a smartphone is actually private.   

Please understand: legally, kids do not have privacy.  Schools don’t give privacy rights to kids.  Police don’t give them privacy.  The State doesn’t give them privacy.  Parents should not find themselves the last to know what their kids are involved in because of a misguided sense that they shouldn’t “invade their children’s privacy.”

o   Educate.  Get to know the laws that govern your children’s communications, and educate your children as well. Know that under the Texas “Law of Parties,” everyone involved in a crime is guilty of that crime, regardless of a major or minor role – so warn them to be especially cautious about group texts or messaging threads: they can find themselves in trouble for someone else’s post or image if they were a part of the group. Explain to them the permanency of their actions.  Explain the potential consequences.  Explain that their smartphones make incredible evidence-gathering tools for the police, making all crimes involving technology very easy to prove.

Share some good rules of thumb with your child: 

1)  If you wouldn’t say it in front of your mom, don’t say it to anyone else from your smartphone.  

2)  If you wouldn’t take your clothes off in front of your whole school, then don’t take your clothes off and snap a picture. 

3)  If you see (or read) something concerning, say something… if someone posts about hurting others or themselves or you receive something inappropriate from someone, take it seriously and immediately report it to an adult.  

4)  Nothing “disappears”… nothing is private and everything is permanent.  There is a whole industry devoted to recovering information and images from devices… even if you think you deleted it or some app says it “goes away.” Police and prosecutors love to send devices off for forensic examination.

5)  If you think you might be in trouble for something related to your phone, don’t try to talk your way out of it… stop talking and immediately ask for your parent (and if necessary ask for a lawyer). It is far better to be in trouble with your parents than in trouble with the law.

o  Wait.  Delay giving your child a smartphone until you feel they are mature enough to make smart decisions.  Join with other parents through organizations like Wait Until 8th.  And when you do give your child a smartphone, control what, if any, social media accounts your child has and take an incremental, baby-step approach.  

Consider this: To drive a car, kids have to be a certain age, take a class, obtain their parents’ permission, apply for permission from the State, drive with supervision of an adult for an extended time, and then pass a test given by the State.  And even when we finally allow our kids to legally drive, they can lose their license for the most minor infractions, and their license is generally restricted for two years. It is a privilege, not a right.  We don’t just hand them the keys without taking all of these precautions because we recognize that a car has its freedoms, but can also be a lethal weapon.  

It’s time we parents realize that the computers in our children’s pockets can be just as dangerous.


*All names and identifying information have been changed to protect privacy and client confidentiality.

Corinne Sumpter and David Gonzalez have been speaking to teenagers about their legal risks and rights for more than 20 years.  They began as second-year Stanford Law School students co-teaching "Street Law" to incarcerated teenage gang members at the California Youth Authority.  Corinne continued in juvenile law while still at Stanford, representing teenagers at the San Francisco Public Defender's Office as an intern, and David interned in adult criminal law in Stanford's prosecution clinic.  

Their criminal and juvenile law practice in Austin grew from there, and now includes three other lawyers and two social workers in a team that focuses on addressing not just the legal issue at hand, but the whole client.  As lawyers, Sumpter & Gonzalez has defended accusations of all kinds, as minor as traffic tickets and as serious as capital murder, in federal courts and state courts around Texas, helping clients as young as 10 and as old as 79.  They've worked with many families dealing with alcohol and substance abuse, mental illness, and school disciplinary processes, and the legal ramifications that result.   

Their own family grew too: their four children range from 10th grade to 3rd grade.  What they see every day in their work provides a continual source of not-your-average-dinner-table-conversations and plenty of very convincing reasons to limit technology with their children. Corinne and David welcome any chance to be right back where they started: teaching kids (and now even more often – their parents) about the law.


Please consider delaying the smartphone for your child with the Wait Until 8th pledge. There are so many reasons to wait. Currently the average age a child receives a smartphone is 10 years old despite the many distractions and dangers that comes with this technology. Join more than 13,000 parents by signing the pledge today.

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