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Irresponsible Teenager or Criminal Mischief-Maker?

Denver residents recently witnessed a unique example of risky and potentially self-destructive teenaged behavior when a young man jumped about thirty feet from an upper bridge into a fish tank in the center of the Bass Pro Shops location at Northfield Stapleton while his friends recorded video footage of the jump.[1] He injured his head, but was not taken to the hospital, and appeared not to have caused damage to the aquarium itself.[2] Bass Pro Shops retained an animal care team to assess the fishes’ health after the incident,[3] and a company spokesperson indicated that the fish “were doing okay.”[4] At the time, Denver police said the teenager could potentially face criminal charges for the jump if the aquarium or the fish had been damaged,[5] and that the young man would be asked to go to a police station and meet with detectives in the subsequent week.[6]

While jumping thirty feet into a fish tank was a newsworthy spectacle and garnered the young man some amount of social media attention, this was not the first incident of its kind. “A handful” of attempts to take a dip in Bass Pro Shops’ aquariums have occurred at various store locations over the years.[7] The appeal of such prank-type behavior to attention- and thrill-seekers, however, belies its potential for substantial negative consequences. Leaving aside the considerable risk of personal injury in such incidents, even unscathed jumpers could potentially face criminal charges if their conduct results in property damage. So when does misguided teenaged prank behavior become criminal?

In Colorado, a common charge for behavior that affects the property of others or of the public is criminal mischief, defined in section 18-4-501 of the Colorado Revised Statutes as “knowingly damag[ing] the real or personal property of one or more other persons.” Standard (adult) penalties range from a fifty dollar fine (the minimum sentence for a class 3 misdemeanor, which occurs when the property damage is valued at less than $300)[8] to twenty-four years’ imprisonment and five years of probation (the maximum sentence for a class 2 felony, occurring when “the aggregate damage to the real or personal property is one million dollars or more”).[9]

Criminal mischief is often used to charge obvious and intentional cases of wrecking someone else’s things. This case is different. The young Bass Pro Shops diver was lucky, in that his jump appears to have resulted in minimal injury and little or no damage to the aquarium. But even if the aquarium had cracked or broken upon impact, the criminal mischief statute still might not apply because it requires the individual to have acted “knowingly.”[10] One acts “knowingly” only if he or she “is aware that his [or her] conduct is practically certain to cause the result.”[11] In other words, to be convicted for property damage at Bass Pro Shops, the teenager would have to have known that his jump was “practically certain” to damage the aquarium, the fish, or some other aspect of Bass Pro Shops property. He could also be charged with criminal mischief if any resulting property damage was intentional, meaning that damaging the property was his “conscious objective” when jumping.[12] Thus a teenager who acts foolishly without thinking is just that – foolish, but not criminal – unless he either consciously means to damage property, or he knows that his behavior is “practically certain” to do so. Here it seems unlikely that the diver was thinking about the chances of aquarium damage at all. His focus was more likely consumed by his hopes for laughs and attention, and any resulting property damage was a mere uncertain side effect.

What about the fact that our young diver was a juvenile? Would that have changed his potential charges or sentencing? A teenager under eighteen years old is both a “child” and a “juvenile” for Colorado law purposes,[13] placing him under the jurisdiction of the Colorado juvenile justice system.[14] Juvenile delinquency adjudications have their own adjudicative process (separate and apart from standard criminal proceedings)[15] and an entirely separate sentencing schedule from the potential adult penalties proscribed by statute. Juvenile judges have a great deal of leeway to determine “the proper disposition best serving the interests of the juvenile and the public,”[16] and potential juvenile sentencing can involve, among other consequences, commitment to the department of human services, confinement in the county jail, juvenile detention, placement with a relative or in a hospital, probation, imposition of a fine, payment of restitution, and completion of various treatment programs.[17] Additionally, juvenile delinquency adjudications have substantially more forgiving long-term effects than adult criminal convictions.[18] So yes, things are different – and in most cases easier – for young pranksters like this one than for property-damaging adults.

And how about civil liability for taking such risky action? Many a lawsuit has been filed seeking to recover the amount of loss associated with property damage caused by irresponsible or inappropriate behavior. Practically speaking, however, it would probably be difficult to recover the cost of a 20,000-gallon fish tank or its resident fish species from a teenager, who – regardless of his or her culpability – is unlikely to possess such substantial sums of money. In Colorado, however, the parents of a minor who maliciously or willfully damages or destroys property can be held liable for the amount of actual damages up to $3500, as well as court costs and attorney’s fees.[19] “Maliciously or willfully” in this context is similar to the intent requirement for criminal property damage. Specifically, “willful” describes “an action done for the purpose of causing” the damage or “with knowledge” that the damage is “substantially certain to follow.”[20] “Malicious” conduct would involve “intentionally damag[ing] the property,” with a “design to injure.” So once again, making a case for liability of our young diving prankster (had the tank or the fish been hurt) could be challenging, as his intention appears to have been more closely related to drawing personal and social media attention than any amount of certainty of or design to damage the tank or the fish.

The Stapleton aquarium diver’s behavior was a dangerous prank and, by most standards, a lapse in judgment. His actions could have resulted in significant injury to himself or others, the fish, or the tank. Luckily for him, they don’t appear to have done so. He is doubly fortunate that in Colorado, the criminal and civil consequences of such foolhardy behavior only attach to knowing or intentional damage, and not to merely reckless behavior. No harm, no foul, or so it would seem.

It might appear that greater consequences should attach in these types of situations in order to deter risky action. But many of us can call to mind our own irresponsible teenaged decisions and can relate to the need for a forgiving response. Let’s hope that the attention the young diver received doesn’t encourage similar future action with potentially less fortunate results.

By Chelsy Weber, Esq., Consulting Counsel to the Eichner Law Firm, licensed to practice in the District of Columbia, New York, and Connecticut

[1] Tom McGhee, Teen Diver Causes No Damage to Denver’s Bass Pro Shops Aquarium, Denv. Post, May 1, 2017, available at http://www.denverpost.com/2017/05/01/teen-diver-bass-pro-shop-aquarium/; Melissa Garcia, Charges Possible: Teen Hits Head Jumping Into Bass Pro Aquarium, CBS News Denv., Apr. 30, 2017, available at http://denver.cbslocal.com/2017/04/30/bass-pro-shops-teen-aquarium-jump/.

[2] McGhee, supra note 1; Tom McGhee, Teen Who Jumped into a Fish Tank at Bass Pro Shops Could Face Charges, Denv. Post, Apr. 30, 2017, available at http://www.denverpost.com/2017/04/30/teen-jumped-f....

[3] Garcia, supra note 1.

[4] Teen Faces Charges After Jumping into Aquarium in Denver Store, CBS News Denv., May 1, 2017, available at http://www.cbsnews.com/news/teen-hits-head-jumping-into-aquarium-in-denver-bass-pro-shops/.

[5] McGhee, supra note 1.

[6] CBS News Denv., supra note 4.

[7] McGhee, supra note 1.

[8] Colo. Rev. Stat. §§ 18-1.3-501(1)(a), 18-4-501(4)(a).

[9] Colo. Rev. Stat. § 18-4-501(4); Colo. Rev. Stat. § 18-1.3-401(1)(a)(V)(A) (defining penalties for a class 2 felony).

[10] Colo. Rev. Stat. § 18-4-501.

[11] Colo. Rev. Stat. § 18-1-501(6).

[12] Colo. Rev. Stat. § 18-1-501(5); see Colo. Rev. Stat. § 18-1-503(3).

[13] Colo. Rev. Stat. §§ 19-1-103(68), 19-1-103(18).

[14] Colo. Rev. Stat. § 19-2-104.

[15] Colo. Rev. Stat. §§ 19-2-801 to -805.

[16] Colo. Rev. Stat. § 19-2-906(1)(a); see Colo. Rev. Stat. § 19-2-907.

[17] Colo. Rev. Stat. § 19-2-907.

[18] See, e.g., Colo. Rev. Stat. § 19-2-111 (“No adjudication or proceeding under this article shall impose any civil disability upon a juvenile or disqualify him or her from holding any position under the state personnel system or submitting any governmental or military service application or receiving any governmental or military service appointment or from holding public office.”); Colo. Rev. Stat. § 19-1-306 (expungement of juvenile delinquent records).

[19] Colo. Rev. Stat. § 13-21-107(1).

[20] Crum v. Groce, 556. P.2d 1223 (Colo. 1976).

Disclaimer: The information in this blog is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this blog should be construed as legal advice from The Eichner Law Firm or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this blog should act or refrain from acting on the basis of any information included in, or accessible through, this blog without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country, or other appropriate licensing jurisdiction.