On The Front Lines


VICTORY: Florida Officials Drop Prosecution of Mom Arrested, Handcuffed, Searched & Jailed for Allowing Her 7-Year-Old Son to Visit Playground Alone



September 17, 2014

PORT ST. LUCIE, Fla. —Florida officials have agreed not to pursue the prosecution of a Florida mother who was arrested and charged with child neglect for allowing her 7-year-old son to visit a neighborhood playground located a half mile from their house. In doing so, the state has effectively put an end to the criminal case against Nicole Gainey. Attorneys for The Rutherford Institute, along with Miami-based criminal defense lawyer Brian H. Bieber, a partner at GrayRobinson, P.A., worked with state prosecutors to achieve a mutually agreeable resolution of the matter that resulted in the charges against Gainey being dropped. In addition to being charged with a third-degree criminal felony charge that carries with it a fine of up to $5,000 and 5 years in jail, Gainey was interrogated, arrested and handcuffed in front of her son, and transported to the local jail where she was physically searched, fingerprinted, photographed and held for seven hours. 

“What this incident shows is that keeping young people safe and a parent’s ability to know what’s appropriate for their children are not mutually exclusive goals,” said John W. Whitehead, president of The Rutherford Institute and author of A Government of Wolves: The Emerging American Police State. “All is not lost as long as there are government officials willing to work through issues in a reasonable manner, exhibiting compassion and common sense and recognizing that there are better ways to deal with concerns about child safety than criminalizing parents. When all is said and done, however, what we really need is for the government to stop acting as if it can do a better job of managing our lives than we can, and that holds true whether you’re talking about child rearing, health care or the surveillance state.”

Nicole Gainey, a resident of Port St. Lucie, Fla., was arrested on Saturday, July 26, 2014, after allowing her 7-year-old son Dominic to walk by himself from their house to a popular neighborhood playground located a half mile away. According to Gainey, Dominic normally rides his bike (which was out of commission that day due to a flat tire) to Sportsmans’ Park, which is located along the same stretch of road as a fire station, community pool, library, church and a daycare. Dominic also rides his bike along that same route when going to school, which is two miles away, without anyone raising any concerns. As usual, Dominic carried a cell phone with him in order to check in with his mom. According to the 7-year-old, someone asked him where his mom was when he was walking past the pool. Police officers were called, went to the park, questioned Dominic, and then drove him home in their car, without alerting his mother that there was a concern or that they had picked up her son. Upon arriving at Gainey’s home, officers questioned the single mother about her son’s whereabouts, without informing her that they had picked him up. The police then arrested Gainey, charged her with neglect, and took her to the local jail, where she was physically searched, fingerprinted, photographed and held for seven hours and then forced to pay almost $4000 in bond in order to return to her family. Gainey’s son was allowed to stay with her boyfriend in lieu of going to foster care.

In coming to Gainey’s defense, Rutherford Institute attorneys argued that parents have every right to make their own determinations about when their children are mature enough and responsible enough to be permitted to safely play outside by themselves, wait in the car by themselves or walk to a neighborhood park unsupervised. Affiliate attorneys Brian H. Bieber of GrayRobinson, P.A., and Robert A. McGlynn, Jr., P.A. assisted The Rutherford Institute in its defense of Gainey.

Press Contact

Nisha Whitehead
(434) 978-3888 ext. 604
nisha@rutherford.org