A North Carolina High School student faces expulsion and felony charges even though he was only a few weeks away from graduation, Fox News' Todd Starnes and multiple other sources report. The facts are not in dispute. Cole Winthrow, an Eagle Scout, from a high school in Johnson County, NC, had been skeet shooting and carelessly left his gun in his truck before beginning school that morning. Winthrow then realized his mistake and called his mother asking her to come to school and get the gun. However, he was overheard by a school official and expelled from the school for 365 days. The school then referred him for prosecution, where he faces felony charges. It is against the law to carry a gun to school property.
The law in question is the Gun Free School Zones Act of 1990, which was struck down by the Supreme Court. However, in 1996, Attorney General Janet Reno circumvented the ruling by inserting a clause requiring that the firearm in question has moved in or has otherwise affected interstate commerce. The law states as follows:
(A) It shall be unlawful for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone.
(B) Subparagraph (A) does not apply to the possession of a firearm—
(i) on private property not part of school grounds;
(ii) if the individual possessing the firearm is licensed to do so by the State in which the school zone is located or a political subdivision of the State, and the law of the State or political subdivision requires that, before an individual obtains such a license, the law enforcement authorities of the State or political subdivision verify that the individual is qualified under law to receive the license;
(iii) that is— (I) not loaded; and (II) in a locked container, or a locked firearms rack that is on a motor vehicle;
(iv) by an individual for use in a program approved by a school in the school zone;
(v) by an individual in accordance with a contract entered into between a school in the school zone and the individual or an employer of the individual;
(vi) by a law enforcement officer acting in his or her official capacity; or
(vii) that is unloaded and is possessed by an individual while traversing school premises for the purpose of gaining access to public or private lands open to hunting, if the entry on school premises is authorized by school authorities.
(3) (A) Except as provided in subparagraph (B), it shall be unlawful for any person, knowingly or with reckless disregard for the safety of another, to discharge or attempt to discharge a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the person knows is a school zone. (B) Subparagraph (A) does not apply to the discharge of a firearm—
(i) on private property not part of school grounds;
(ii) as part of a program approved by a school in the school zone, by an individual who is participating in the program;
(iii) by an individual in accordance with a contract entered into between a school in a school zone and the individual or an employer of the individual; or
(iv) by a law enforcement officer acting in his or her official capacity.
(4) Nothing in this subsection shall be construed as preempting or preventing a State or local government from enacting a statute establishing gun free school zones as provided in this subsection.
Definitions
Pursuant to 18 U.S.C. § 921(a)(25) the term "school zone" means—
(A) in, or on the grounds of, a public, parochial or private school; or
(B) within a distance of 1,000 feet from the grounds of a public, parochial or private school.
Pursuant to 18 U.S.C. § 921(a)(26) the term "school" means a school which provides elementary or secondary education, as determined under State law.
Penalty
18 U.S.C. § 924(a)(4) establishes the penalty for violating GFSZA:
Whoever violates the Act shall be fined not more than $5,000, imprisoned for not more than 5 years, or both. Notwithstanding any other provision of law, the term of imprisonment imposed under this paragraph shall not run concurrently with any other term of imprisonment imposed under any other provision of law.
The amended act has been upheld by lower federal courts; however, it has never reached the Supreme Court. A conviction under the GFSZA will cause an individual to become a "prohibited person" under the Gun Control Act of 1968. This will bar them from legally owning firearms for the rest of their life.
Kimberly Boykin, a family friend, quoted by Starnes, talks about the harm done:
“He didn’t know what to do,” Boykin, whose son is friends with Withrow, told Fox News. “If you jump in the truck and leave, then they get you for skipping school. Once you are there you have to say.
“I think it’s an injustice for this young man,” she added. “He’s a good guy. He’s loved by his classmates and his teachers. You don’t become an Eagle Scout by being a bad seed.”
She said the school district is sending a very bad message to students.
Cole Withrow with his sister.
“You teach your kids if you’re in trouble or if you see you’ve done something wrong, go ahead and admit it,” she said. “Be a man and it’ll be fixed. In this case, that’s what he did and he’s being punished for it. That’s not the lesson we need to teach our kids.”
But the school defends their decision to expel Cole. From Starnes, here is the school's side of the story:
“The law is very clear when a person knowingly and willingly brings a weapon onto educational property,” spokesperson Tracey Peedin Jones said. “The situation was turned over to law enforcement immediately.”
“Administration reacted promptly and the proper procedures and protocol were followed,” Jones said. “The situation was turned over to law enforcement immediately. As a result of our investigation, it is our best determination that students and staff were safe at all times.”
“Please know that with student and personnel issues, we carefully balance all factors to arrive at a fair and just outcome,” she said in a statement Wednesday. “Certain items are mandated and we have no choice but to follow the law.”
But the question is whether the state can prove that Cole Winthrow acted knowingly and willingly. And another question is whether the state can prove that the weapon has somehow affected interstate commerce. Without both elements established, the state will have a hard time establishing guilt beyond a reasonable doubt under this statute.
The website Global Dispatch says that the student body has come to Winthrow's defense and that the story has gone viral. The #freecole hashtag is here.
Supporters of the Free Cole movement are jumping on what they see as a double standard being enforced by the school. Global Dispatch reports that an assistant principal was caught doing the same thing and was only suspended for three days and was never fired or charged even though the law still applies. The Global Dispatch link also reports that a teacher at another high school within the district was cited for it and resigned; the article makes no mention of any charges being filed.
The perceived double standard will likely lead to problems by the school district in disciplining students; students are very likely to pick up on perceived double standards and favoritism shown by administrators, teachers, and coaches. Global Dispatch quoted one student who noted the different standard being applied.