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You all have read about 16 year old Kiera Wilmot, a Florida student who mixed toilet bowl cleaner and aluminum foil in a small plastic bottle on school grounds.  The chemical reaction from mixing these two items created a hydrogen gas which expanded and created a small explosion, releasing some gas and smoke.  No one was injured.  Here's a video of someone who did the same experiment Kiera performed:

Kiera admitted she did this because she was curious to see what the reaction would be from mixing these ingredients together.  Perhaps she had seen a video like the one above or read about how to create this reaction online.  The high school expelled her and local police were called in to arrest her.  She faces third degree felony charges of "possession and discharge of a weapon on school property and discharging a destructive device."  If convicted she faces up to fifteen years in prison pursuant to Section 775.082 4.a(c) and Section 790.115 2(d) of the Florida Statutes.  Possession alone of a weapon is a 3rd degree felony with a maximum sentence of up to five years.

By all accounts, Kiera has a good academic record, no prior criminal record, and no prior record of misbehavior at school.  She is what we sometimes refer to as a "model student" or more colloquially "a good kid."  So why was she arrested and   charged with Class 2 and Class 3 felonies for a science experiment gone bad?  Well, I've looked at the Florida Criminal Statutes which form the basis for her arrest.  Follow me below the squiggle for a discussion of the relevant Florida criminal laws Kiera is charged with violating that could land her in prison for up to 15 years.

Here are the laws that make it a felony in Florida to possess and discharge a weapon and/or an explosive device on school property:

790.115 Possessing or discharging weapons or firearms at a school-sponsored event or on school property prohibited; penalties; exceptions. [...]

(2)(a) A person shall not possess any firearm, electric weapon or device, destructive device, or other weapon as defined in s. 790.001(13), including a razor blade or box cutter, except as authorized in support of school-sanctioned activities, at a school-sponsored event or on the property of any school, school bus, or school bus stop; [deleted text about firearms]

(b) A person who willfully and knowingly possesses any electric weapon or device, destructive device, or other weapon as defined in s. 790.001(13), including a razor blade or box cutter, except as authorized in support of school-sanctioned activities, in violation of this subsection commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

[Deleted text regarding firearms]

(d) A person who discharges any weapon or firearm while in violation of paragraph (a), unless discharged for lawful defense of himself or herself or another or for a lawful purpose, commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

The Florida statute that deals with discharging a destructive device is found here:

790.161 Making, possessing, throwing, projecting, placing, or discharging any destructive device or attempt so to do, felony; penalties.—A person who willfully and unlawfully makes, possesses, throws, projects, places, discharges, or attempts to make, possess, throw, project, place, or discharge any destructive device:

(1) Commits a felony of the third degree, punishable as provided in s. 775.082 or s. 775.084.

(2) If the act is perpetrated with the intent to do bodily harm to any person, or with the intent to do property damage, or if the act results in a disruption of governmental operations, commerce, or the private affairs of another person, commits a felony of the second degree, punishable as provided in s. 775.082 or s. 775.084.

First some caveats.  I am a retired lawyer who was admitted to the bars in Colorado and New York, but not Florida.  My interpretation of these laws, therefore is my own and should not be considered legal advice.  That stated, lets consider the facts as we know them regarding this incident, and the language of the statutes under which Kiera faces felony charges.

There is no question Kiera brought the toilet bowl cleaner, aluminum foil and the water bottle in which she placed those ingredients onto the Bartow High school grounds.  She also admitted mixing them together and that a small explosion occurred.  So the real question to whether she "knowingly and willingly" possessed and discharged a weapon or, in the case of a "destructive device," "willfully and unlawfully makes, possesses, throws, projects, places, discharges, or attempts to make, possess, throw, project, place, or discharge" said "destructive device."

The first thing I would want to determine is whether Kiera's little science experiment constituted a weapon and/or a "destructive device" under Florida law.  To determine that we have to examine the language of the Florida statute that defines those terms, section 791.01, the relevant subsections of which are provided below:

(4) “Destructive device” means any bomb, grenade, mine, rocket, missile, pipebomb, or similar device containing an explosive, incendiary, or poison gas and includes any frangible container filled with an explosive, incendiary, explosive gas, or expanding gas, which is designed or so constructed as to explode by such filler and is capable of causing bodily harm or property damage; any combination of parts either designed or intended for use in converting any device into a destructive device and from which a destructive device may be readily assembled; any device declared a destructive device by the Bureau of Alcohol, Tobacco, and Firearms; any type of weapon which will, is designed to, or may readily be converted to expel a projectile by the action of any explosive and which has a barrel with a bore of one-half inch or more in diameter; and ammunition for such destructive devices, but not including shotgun shells or any other ammunition designed for use in a firearm other than a destructive device. “Destructive device” does not include:

(a) A device which is not designed, redesigned, used, or intended for use as a weapon;

(b) Any device, although originally designed as a weapon, which is redesigned so that it may be used solely as a signaling, line-throwing, safety, or similar device;

(c) Any shotgun other than a short-barreled shotgun; or

(d) Any nonautomatic rifle (other than a short-barreled rifle) generally recognized or particularly suitable for use for the hunting of big game.

(5) “Explosive” means any chemical compound or mixture that has the property of yielding readily to combustion or oxidation upon application of heat, flame, or shock, including but not limited to dynamite, nitroglycerin, trinitrotoluene, or ammonium nitrate when combined with other ingredients to form an explosive mixture, blasting caps, and detonators; but not including:

(a) Shotgun shells, cartridges, or ammunition for firearms;

(b) Fireworks as defined in s. 791.01;

(c) Smokeless propellant powder or small arms ammunition primers, if possessed, purchased, sold, transported, or used in compliance with s. 552.241;

(d) Black powder in quantities not to exceed that authorized by chapter 552, or by any rules adopted thereunder by the Department of Financial Services, when used for, or intended to be used for, the manufacture of target and sporting ammunition or for use in muzzle-loading flint or percussion weapons. [...]

(13) “Weapon” means any dirk, knife, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon except a firearm or a common pocketknife, plastic knife, or blunt-bladed table knife.

Was Kiera's science experiment a "weapon" that she knowingly and willingly possessed?"

Let's focus on the definition of weapon first since it is shorter.  The language indicates that the term "weapon" includes what we usually consider to be an object capable of causing grave injury or death, except, oddly enough, firearms and pocketknives.  Based on this language alone, without reference to any of the case law involved, I think that the issue of whether Kiera's small plastic bottle filled with toilet bowl cleaner and aluminum foil strips constitutes a weapon is not clear cut.  Is it a chemical weapon or device?  Arguably that depends on its intended use.  Kiera has stated she did not intend to use her experiment as a weapon, only that she was curious as to what would happen if she mixed the toilet bowl cleaner and aluminum strips together.

Also important here is the catchall language above which states "or other deadly weapon." That strongly suggests that for Kiera's science experiment to be considered a "weapon,"  it must have been capable of killing someone.  That's a factual determination yet to be made, but the reports I've seen don't suggest that the explosion that resulted was large enough to pose a threat of death to anyone.  Injury yes, and possibly even a significant injury, but not death.  Of course, as a legal matter, the judge must first rule on whether the "device" Kiera made is a weapon under the statute, or whether "weapons" are limited to those devices that can cause death.  If he or she does restrict the definition of weapon in that manner, the question of whether Kiera's little explosive science experiment constitutes a "weapon" capable of killing someone must be determined by a jury should this case go to trial.

Now we have to go back and consider Kiera's intent.  The statute clearly states that Kiera must have knowingly and willingly possessed a weapon on school grounds.  I'm going to play defense attorney here for a moment.  From the statements made by Kiera and documented in the police report, it seems pretty clear she did not consider her "experiment' to be a weapon, at least not in the normal sense of the word.  Based on her statements, I do not see evidence that she knew what she was doing constituted possession of a weapon, nor any intent on her part to use her "science experiment in a plastic bottle" as a weapon, and I see no reason yet to question her credibility.  She didn't throw it at anyone, threaten anyone with it, or otherwise act in a manner to indicate that she knowingly possessed a weapon capable of harming herself or others.  Perhaps the police have discovered other evidence that shows an intent to employ her experiment as a "bomb" but so far there has been no disclosure of any such evidence.

This is not to say that she didn't make a mistake by performing her "experiment" without informing a teacher or getting permission, but that seems more a question for the school to handle, not the legal system.  If I were the prosecutor, I wouldn't feel particularly sanguine about prosecuting Kiera for possessing and discharging a weapon, unless I had case law that clearly supported my position.  The statute that defines what is a "weapon" for purposes of charging her with a crime is rather vague.  In addition, the question of her intent (i.e., did she knowingly possess and discharge a "weapon?") is clearly an issue I would be reluctant to attempt to prove at trial beyond a reasonable doubt. It just isn't clear to me that charging her with possession and discharging a weapon on school grounds is an appropriate use of prosecutorial discretion.  Kiera is clearly guilty of having acted foolishly in this instance, but that is no crime.

Was Kiera's science experiment a "destructive device" that she willingly made, possessed and intended to use as such?

In Florida, a person commits a felony when he or she "willfully and unlawfully makes, possesses, throws, projects, places, discharges, or attempts to make, possess, throw, project, place, or discharge any destructive device."

So what is a "destructive device?"  That statute gives us a very long list of specific items that are destructive devices including some very dangerous items such as "any bomb, grenade, mine, rocket, missile, pipebomb, or similar device containing an explosive, incendiary, or poison gas and includes any frangible container filled with an explosive, incendiary, explosive gas, or expanding gas, which is designed or so constructed as to explode by such filler and is capable of causing bodily harm or property damage."  Kiera's "experiment seems to fall into the category of a device "containing an explosive, incendiary, or poison gas and includes any frangible container filled with an explosive, incendiary, explosive gas, or expanding gas ...'  However, such devices must be "designed or constructed to explode" and must be "capable of causing bodily harm or property damage."

No report I've seen suggests that her the result of her "experiment" caused any bodily harm to anyone or any property damage.  However, for the sake for argument let's concede that her science experiment was a destructive device.  That doesn't end the inquiry, however, regarding her guilt.  You see the law clearly states that for Kiera to be guilty of a felony, she must have both constructed her "destructive device," and used it, willfully and unlawfully.  In short, the issue of her intent again appears, and it should give any prosecutor pause before pursuing felony charges against this young woman.  Why?  Because she herself has stated she just wanted to see what would happen when she mixed the aluminum foil strips with the chemicals in her toilet cleaner.  She herself did not know if it would explode.  Her actions support that interpretation of her state of mind.  She did not throw her bottle at anyone or place it so as to injure other people.  

"Knowingly" here means that she must have had the specific intent to create and discharge a "destructive device."  So far, I don't see enough evidence to indicate she had that requisite intent.  From what we know, she only had the intent to perform a science experiment, not to create a bomb that would injure people or damage property.  The bottle she used was small - only an 8 ounce water bottle.  She did not place her chemicals in a metal container or place nails and ball bearings around the outside.  She just wanted to see if mixing those chemicals with the foil would cause a small boom or not.  Again, absent more evidence to show she had an "unlawful" intent and acted knowingly to carry out that intent, I fail to see any crime here, at least not a felony for which she could go to prison.

Then again, I am not the Florida prosecutor in this case.  He may view this from a far different light than I do, and he no doubt is a better judge of how a Bartow, Florida jury might decide the case should he choose to bring it.  I can only hope for his sake that he understands how ludicrous, petty and malicious he and his community would appear to many people across the country should he seek to pursue the charges against Kiera for this essentially harmless bit of tomfoolery on her part.  

Ps.  If you support Kiera, sign this petition seeking to have the charges against her dropped.

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