In the wake of the Boston Bombings, the last thing anyone would want to be associated with, much less accused of is possessing or discharging a bomb.
And unfortunately for a young girl named Kiera Wilmot of Lakeland, Florida, she has found herself in just such a tragic situation.
But because her “chemistry experiment” was not school sanctioned, she was instead arrested and charged with Possession of a Destructive Device (i.e. a bomb) and Possession of a Destructive Device on School Property, both are third degree felonies.
Her school is also trying to expel her!
But as explained below, not only did she not commit a felony, she did not commit any crime.
Her arrest was wrongful and her expulsion unwarranted (although a suspension might have been appropriate).
The “Chemistry Experiment”
The experiment works by mixing aluminum foil with the toilet bowl cleaner. The hydrochloric acid strips the coating of the aluminum foil away, exposing the aluminum.
At this point the Hydrochloric acid reacts rapidly with aluminum and produces Aluminum Chloride (soluble) and Hydrogen gas.
This rapid production of gas pressurizes the bottle until it bursts, creating a very loud bang. The stronger the bottle, the louder the bang. Importantly, absent the container, the chemical reaction does very little.’
The chemical formula for the reaction is: 6HCl(aq) + 2Al(s) –> 2AlCl3(aq) + 3H2(g).
Not All Bombs are Bombs
Ms. Wilmot was arrested for Possession or Discharge of a Destructive Device in violation of Florida Statute 790.161(1) and with Possession of a Destructive Device on School Property in violation of Florida Statute 790.115.
However, Florida Statute 790.001(4)(a) provides a safe harbor provision, which states that a “Destructive Device” does not include: “A device which is not designed, redesigned, used, or intended for use as a weapon.”
What this Safe Harbor provision means is that something is not a “bomb” just because it is called a bomb. Moreover, and as explained in more detail below, just because a device “explodes,” it is not transformed into a destructive device (i.e. bomb) because it exploded.
Otherwise, the mere possession of a firecracker would constitute the felony offense of Possession of a Destructive Device.
Rather, before anyone can be prosecuted for Possession of Destructive Device, the State must have some evidence that the device was designed, redesigned, used, or intended to be used, as a weapon.
Absent any such evidence, not only can a person not be prosecuted for the crime, they should not even be arrested for the crime (I hope Ms. Wilmot’s attorney is thinking of a wrongful arrest suit.
Not all Explosive Devices are “Destructive Devices”
While I believe Ms. Wilmot should never have been arrested because of the Safe Harbor provision found in Florida Statute 790.001(4)(a), even if the Safe Harbor provision did not exist (or apply) I believe her “chemistry experiment” still was not a felony under Florida law.
The reason is that while all destructive devices are explosive devices, not all explosive devices are destructive devices.
This is because the “key characteristic in the definition of both ‘firearm” and ‘destructive device’ appears to be ‘explosive,’” the specific definition of which is found in Florida Statute 790.001(5). See Stacey v. State, 660 So. 2d 1083 (Fla. 5th DCA 1995) (Sharp dissenting, reversed on other grounds.)
Judge Sharp goes on to point out that for a device to be a Destructive Device, it must employ an explosion caused by combustion or oxidation upon application of heat, flame or shock. But if the device simply “explodes” due to the buildup of air, the device does not fall under the definition of a destructive device.
As explained earlier, the “Works Bonb” and the “Drano Bomb” are caused not by heat, but by “the rapid production of gas, which pressurizes the plastic bottle until it bursts, creating a very loud bang.”
It follows, based on Judge Sharp’s opinion, that Ms. Wilmot’s device does not meet the legal definition of a Destructive Device because the chemical reaction that caused the explosion does not result from the application of heat, flame, or shock; rather it results from the gas pressure causing the plastic bottle to burst.
Did She Commit Any Crime?
As I indicated above, I do not think Ms. Wilmot’s conduct constituted any crime.
If either of my arguments are incorrect regarding the applicability of charging her with Possession of Destructive Device, then the question begs; did she commit any crime? If so, what crime would that be?
As best as I can determine, the only crime that might be applicable is Criminal Mischief. Criminal Mischief occurs when a person willfully and maliciously injures or damages another person’s property.
While it is unclear if Ms. Wilmot damaged any property, it seems abundantly clear that her conduct was not malicious, which has been described as an offense committed out of “ill will or hatred toward the owner of the property.” Sanchez v. State, 909 So. 2d 981, 985 (Fla. 5th DCA 2005).
Consequently, a person cannot be convicted of criminal mischief if they did not maliciously destroy another person’s property. JG v. State, 655 So. 2d 1284 (Fla. 4th DCA 1995).
Free Kiera Wilmot
The most recent news reports indicate that a diversion resolution is in the works, which is a shame, because Kiera Wilmot should never have been arrested, much less charged with a felony.