A fight that erupted during a Cape High football scrimmage before the school year began has had long-lasting implications for one high school senior.
A 17-year-old Cape student was charged with felony riot in connection with the fight that her mother said was started by Sussex Central students. The case has not gone to trial, but on Oct. 26, Cape Henlopen school board expelled the student, said Amie Flowers, the girl's mother.
Although the fight happened Aug. 25 – more than a week before Cape High's school year began – the girl was suspended for two months while expulsion hearings were held before school officials, then district administrators, and finally before school board members.
In a transcript of the district expulsion meeting provided to the Cape Gazette, a school official admits that the girl was at first incorrectly accused of spraying mace. A district official then testified that the girl violated the school's Code of Conduct by fighting, emphasizing notification by the Attorney General's Office that she had been charged with felony riot – a charge Flowers disputes.
Officials with the public defender's office and one Cape Henlopen school board member question the process of overcharging juveniles.
After a month at home, Flowers said, her daughter finally received a call from the district giving her some school assignments.
“My daughter wants to be back in school,” said Flowers, who also has a ninth-grade boy attending Cape. She said he had been kept off the football team for weeks after the fight, even though he had nothing to do with it. “They are putting too much pressure on my kids,” Flowers said.
Flowers said her family went to the scrimmage to watch her ninth-grader play football for Cape. Flowers attended the game with her boyfriend, Robert L. Jones, her daughter Brandy Deshields and son Brandon Deshields, both 21, and her 17-year-old daughter. A fast talker who freely states her opinion, Flowers said several Sussex Central boys instigated the fight by flashing gang signs in the stands and threatening her son. Flowers said she recognized some of the boys from a shooting that happened in July at her Milton home when her son Brandon was shot in the chest. Delaware State Police continue investigating the shooting.
Flowers admits she cursed at the Sussex Central boys. Court records describe how the father of one of the boys eventually showed up at the game and fists started flying. A 9-year-old girl in the stands was inadvertently maced during the fight.
Two weeks after the fight, five adults were charged with felony riot and other charges. Flowers' daughter, 16 at the time, and another 17-year-old were also charged with felony riot. Flowers said her daughter is scheduled for Family Court on Dec. 5.
But in August, before school began, Flowers' daughter had already been suspended from school. On Sept. 6 – the second day of school – a school review team recommended expulsion.
“They said she is a safety threat,” Flowers said.
In a letter written to Flowers, Principal Nikki Miller said, “Due to the gravity of this particular offense which posed a threat to the orderly functioning of a school-based activity … the School Review Team recommended expulsion.” They also recommended the girl, an honor student with a 93 average after her junior year, attend an alternative school for 180 days – the entire school year.
Both Human Resources Director Ed Waples and Superintendent Robert Fulton agreed in writing with the expulsion recommendation.
A video of the fight reviewed by the Cape Gazette shows Flowers' daughter mostly standing nearby while others fight near her. When her brother – who has limited motion in his arm from the gunshot wound – is punched by another teen, the girl tries to help him, swatting a couple of times with an open hand as the group converged on her brother. Whether she makes physical contact is unclear from the video; whatever contact there is appears minimal.
“She should be allowed to defend her brother,” Flowers said.
Flowers appealed both the school and district decisions to expel her daughter.
But on Oct. 26, the school board voted to expel her from Cape High, recommending her for Sussex County Opportunity Program, an alternative school run by the Woodbridge School District.
Flowers said she has retained a lawyer to represent her daughter so that she can return to school and finish her senior year. “I don't see how they can charge her with felony riot,” Flowers said, noting her daughter is presumed innocent until proven guilty. The girl’s school discipline record shared with the Cape Gazette shows minor, nonviolent infractions.
Flowers said a felony riot charge goes far beyond what her daughter did during the fight. In comparison, 18 men now face felony riot charges for a prison siege in February. The siege resulted in the death of a correctional officer and injuries to three prison employees.
Delaware code defines felony riot in part as participation by two or more persons in a course of disorderly conduct. Disorderly conduct includes causing public inconvenience, annoyance or alarm, and engaging in fighting or violent, tumultuous or threatening behavior.
“They harshly overcharged us,” Flowers said. “It should've been a disorderly conduct charge.”
When her daughter appears in Family Court in December, the felony riot charge could be dismissed or reduced to misdemeanor offensive touching or disorderly conduct – charges that could be expunged from her record.
But that doesn't matter to Cape High officials.
Cape High's Code of Conduct is clear that if the district is notified by the Attorney General's Office that a student has been arrested for committing a misdemeanor or felony – even if it has nothing to do with school or occurred off school property – the district may take disciplinary action.
“The district will not wait for adjudication of said misdemeanor or felony to proceed with alternative placement or expulsion procedures. A finding of ‘not guilty,’ nolle prosequi or dismissal of charges is not binding on the school district,” reads Cape High's Code of Conduct.
School board President Andy Lewis said there has been no discussion on revising the Code of Conduct or whether it is too severe.
He said he was at the football game when the fight broke out, and he watched it from the stands. But, Lewis said, he does not know enough about what constitutes felony riot to comment as to whether the participants should have been charged.
“It was a fight that shouldn't have occurred,” he said.
He said he would not comment about the 17-year-old girl's case because of student confidentiality.
Board Vice President Jessica Tyndall said she recused herself from the proceeding because of previous knowledge of the incident and had not seen the video.
Board members Alison Myers, Julie Derrick, Jason Bradley and Roni Posner said they could not comment on information shared with them during executive session. Board member Janis Hanwell could not be reached for comment.
“My initial reaction was it sounds like a harsh charge, but I didn't see what happened,” Posner said.
Myers said the district hearing officer provides written and audio transcripts for board members to consider during student discipline hearings.
Bradley said he did not witness the fight in person, and he relied on secondhand information provided to the board. “I'm entrusting that police are doing their due diligence in filing charges,” he said.
All Oct. 26 student discipline cases were unanimous decisions, Lewis said.
Flowers said her daughter continues to receive classwork despite her expulsion. One administrator said her daughter could possibly be reinstated in January, but Flowers isn't holding out hope.
Flowers said she considers Cape's disciplinary process draconian.
“The punishment has not fit the crime,” she said. “This is her senior year. She has missed so much. Of all my children, she's the one who enjoys going to school the most.”
Attorney general's letter
Under Delaware law, when a juvenile is charged with a crime – no matter how minor – the Delaware Attorney General's Office immediately sends a letter to inform the juvenile's school of the charge.
Carl Kanefsky, spokesman for the Attorney General's Office, said the office has sent letters for about three decades “out of a concern from schools that they were often not aware when a student was charged with a crime, a situation that could cause obvious issues for school officials based on lack of information.”
Once a school receives the AG's letter, Kanefsky said, officials can proceed with their own discipline policies as they do for student conduct that is not criminal.
Asked whether the attorney general’s letter deprives a student of due process by allowing a school to treat a student guilty as charged, Attorney General Matt Denn declined to comment.
Kanefsky said the AG's letter was revised in 2016 to clarify that it is simply a charge: “Please note that the charge(s) detailed in this notice is/are based on probable cause which means that law enforcement had reasonable grounds to suspect that the defendant committed a crime. The charge(s) may ultimately result in an adjudication of delinquency, diversion program downgrade to lesser charge(s), and/or dismissal.”
Delaware Department of Education Secretary Susan Bunting said the state recognizes and respects local school board decisions on discipline. “Districts and charter schools have the authority to take action for violations of their codes of conduct at any time,” she said.
Asked whether the Attorney General's letter deprives a student of due process when a student can be suspended or expelled for a charge that could be dropped or dismissed, Bunting declined to comment. She also had no comment about whether Cape's disciplinary policy promotes education.
As executive secretary of the Delaware State Board of Education, Bunting declined to comment on the specific case involving the 17-year-old girl because the case could eventually be appealed to the state board.
Chief Juvenile Defender Kathryn Lunger said the Public Defender's Office opposes the AG's letter and the punitive measures a school is allowed to take based on the AG's letter.
“We do have an issue with the letter, and we wish they would stop sending letters to schools,” she said.
“It's very frustrating, because if a youth is wrongfully arrested and the case is nolle prossed, the school could have already expelled the youth or suspended the youth. It's pretty scary and troubling.”
Based on the attorney general's letter, a school has carte blanche to punish a student.
“Oftentimes, parents and students don't know how to fight suspension or expulsion,” she said, adding serious consequences can follow every day a youth is not in school.
Yet, she said, she knows of no movement to stop the Attorney General's Office from sending letters to schools.
“It's my belief that schools like these letters, and they don't want these letters to stop,” she said.
Wide interpretation of charges
Law enforcement decides how to charge a suspect, and those charges can be upgraded in the prosecutor's office.
“Our office doesn't have any say in what charges are filed. We can only defend our clients against those charges,” Lunger said.
During the summer, the Public Defender's Office held expungement clinics for youth across the state, which they continue to offer. Hundreds of young people participated to erase charges against them – charges with lingering effects as they tried to move forward with job and college applications, officials said.
While expungement clinics had success on the back end of the judicial process, Lunger said, there is still no discussion about fixing the system on the front end. That includes the wide latitude law enforcement has when filing charges.
The Cape High student charged with felony riot – the same as inmates who killed a correctional officer – is one example. In an unrelated, separate incident involving a 17-year-old girl, the student was charged with offensive touching for an incident that resulted in no injury or marks, according to the police report. In both cases, the extent of physical contact, if any, is unclear from police reports.
In a videotaped fight that happened in Caesar Rodney High School cafeteria, a boy lands a dozen hard punches on another student. According to a published report of the fight, the boy now faces offensive touching charges for his punches.
Lunger said school resource officers sometimes consult with prosecutors about charges against juveniles, but the prosecutor's office has broad discretion to determine charges.
Diversionary programs and civil citations are options Lunger would prefer.
“Community service in lieu of an arrest would be better for a child rather than to come through the criminal justice system,” she said.
Jon Offredo, spokesman for the Public Defender's Office, said the civil citation program is one option. But it's offered for only a few charges: disorderly conduct, loitering, shoplifting, alcohol offenses, possession of marijuana and third-degree criminal trespass. Through the program, a first-time misdemeanor offender is given a 90-day program in which they are assessed and given community service. “The young person would not go through the traditional criminal justice system nor be subject to a criminal record,” as defined by the Department of Services for Children, Youth and Their Families.
“Unfortunately, it's only limited to a handful of charges,” Lunger said.
Lunger said she would like to see more charges added to the list of those considered under the civil citation program.
Still, law enforcement can decide whether to offer a diversionary program.
“Any police officer in the state has the option to offer a civil option,” said Offredo.
Why the diversionary program wasn't offered for the teen girl remains a mystery.
“The school district is not involved in determining the charges filed for any incident involving our students,” said Superintendent Fulton. “The charges are based on an investigation by the police, and it is not our position to comment on charges they file.”
Attorney General's Office spokesman Kanefsky said prosecutors also were not involved in charges filed following the fight.
Delaware State Police Sgt. Bernard Miller, youth aid supervisor in charge of all Sussex County student resource officers, attended court proceedings in September for the adults charged with felony riot related to the fight at the stadium. Flowers said Miller was involved with filing the felony riot charge against her daughter. Miller could not be reached for comment.
Speaking on her own behalf, the 17-year-old girl said there is a chance her felony riot charge may be dismissed in Family Court. But as the case moves slowly through the judicial system, her senior year is slipping away. The honor student said she definitely does not want to go to an alternative school.
“I'd like to be back in school working on my college applications,” she said. “This whole thing has been too much.”
Charges filed following scrimmage fight
Five adults, two teens charged with felony riot
By Melissa Steele
On Aug. 25, a fight broke out in the stands of Cape High's Legends Stadium. The pre-season game between Cape Henlopen and Middletown came to a halt; video of the fight shows uniformed Cape High football players moving toward the fight, taking off their gear as if ready to join in.
A football coach hops the spectator fence and a few bystanders step in to separate two groups of people fighting. On Sept. 8 – two weeks after the fight – Amie Flowers and Robert Jones were charged with felony riot and third-degree assault. Flowers' 21-year-old twins, Brandon Deshields and Brandy Deshields, were both charged – Brandy with felony riot and two counts of third-degree assault, Brandon with felony riot.
The father of a Sussex Central football player, Juan D. Pettyjohn, 35, of Georgetown, was charged with felony riot, offensive touching, disorderly conduct and third-degree conspiracy. Also charged with felony riot were Flowers' daughter who was 16 at the time, and a 17-year-old – identified in court as Pettyjohn's son who was a football player for Sussex Central.
During a Sept. 14 court proceeding in Sussex County Court of Common Pleas, Flowers, Jones and Brandon Deshields waived preliminary hearings on their charges. Flowers and Jones are scheduled for Sussex County Superior Court on Dec. 5; Brandon is scheduled for Dec. 12.
Brandy Deshields took probation before judgement for third-degree assault and disorderly conduct, and is barred from attending Cape Henlopen school activities for a year.
“She wasn't actually scuffling with [Pettyjohn], but she was part of the fight,” said Deputy Attorney General Melanie Withers during the court proceeding.
Pettyjohn pleaded guilty to disorderly conduct, and his other charges were dropped. He is barred from contact with the Cape Henlopen School District for a year. Flowers said she, Jones and Brandon are also barred from Cape Henlopen School District property.
Shortly after Pettyjohn arrived at the scrimmage, the fight broke out. Withers said it was “absolute mayhem.” Withers said she wasn't sure which students were fighting, but was clear the adults involved were the ones who acted out. “This was an extremely violent event,” she said. “The video is shocking, and we're very fortunate more people weren't injured.”