By the time he appears in court on Friday, 12-year-old Gerald McNeal will have been in custody for 10 days for doing what he thought a big brother should do.

His little brother, Isaac, 9, meanwhile, has been racked with guilt and feels responsible for the serious criminal charges that his brother faces because of Isaac's toy gun.

"Mostly, I was crying because if I never would have bring it this would have never happened," said Isaac.

On May 8, the brothers and a friend were walking from their home in the city's Summerdale section to the Carnell School, at Devereaux and Summerdale avenues, when Isaac pulled out what he said was a plastic toy gun that he had borrowed from a friend.

"That's when — my mom don't like us having guns — so my brother took it and put it in his school bag," Isaac said.

A 12-year-old girl, who Isaac says has a crush on Gerald, then slapped Gerald in his head and opened his bag, exposing the toy.

The other boy they were walking with grabbed it. Isaac said that as his brother wrested the gun away from the other boy it went off and a pellet struck the girl in the chin. She wasn't injured and didn't seek medical attention, police and school officials said.

Gerald put the toy back in his bag and the group walked to school. According to Isaac and a school district spokeswoman, the girl did not report the incident, but told a friend about it and that friend reported it to the school.

Gerald was taken out of class and the plastic gun was found in his backpack. Police were called and Gerald was taken to the Second District, at Harbison Avenue and Levick Street, where he was held for 10 hours in a cell, according to his mother, Tina Vasquez.

"He cried like a baby in the cell," said Vasquez, 42. "I was hard with him because I didn't know what happened at that point. I came aggressive at my son because that's the kind of mom I am."

Police would not show Vasquez the toy gun, so she had Isaac and the kids in the neighborhood take her to the corner market that sells them for $2.59 and she bought one. She had one of the kids shoot her to see how it felt. "It's a tickle," she said.

Meanwhile, police labeled the toy as a BB gun and charged Gerald with aggravated assault — a felony — as well as possessing instruments of a crime, possession of a weapon on school property, simple assault and recklessly endangering another person. Police contend that Gerald purposefully shot the girl in the face, and they labeled the gun as a "deadly weapon" in court documents.

After 10 hours, Gerald was transported from the Second District to the Youth Study Center before he was taken to the Juvenile Justice Center, on Thomas Avenue, where he's been since.

Vasquez, a single mother who drives a SETPA bus, is mortified.

"I can see a suspension, or scaring him straight in prison for a couple hours, but it went way too far," she said.

Gerald receives good grades and plays sports, Vasquez said. He frequents the Oxford Circle Police Athletic League, where a supervisor said that he knows the McNeals to be "good kids."

Vasquez worries what 10 days — or more — in juvenile detention will do to her son.

"I seen the fear in his eyes," she said. "You can tell his world is upside down. You're taking a good kid and putting him around other kids who are not so good."

Vasquez said that she filed a complaint with Internal Affairs.

Lt. Ray Evers, police spokesman, said that the department takes school violence "very seriously." Although he hasn't seen the toy, he referred to it as a BB gun, as it's listed in court documents.

"Even though it was a BB gun, he pointed it at a student and pulled the trigger — that's aggravated assault," he said. "That's what we're going to charge and we'll charge that every time."

However, Mary Catherine Roper, staff attorney with the Philadelphia chapter of the ACLU, argued that police had no basis for the aggravated-assault charge.

"Charging this boy with aggravated assault, that's insane," she said. "In. Sane."

She said that Gerald should be disciplined, but to be treated as a felon is unconscionable.

"The reason that the grownups are in charge of the system is that the grownups are supposed to be able to exercise some discretion," she said. "There is nothing to justify the expense and the trauma to this boy of keeping him in placement."

Vasquez said that her sons are learning a hard lesson a bad way.

"Kids can't even make a mistake now. They make a mistake now and they're done," she said. "It's so easy to get in trouble and so hard to get out of it." n

Reach Stephanie Farr at or 215-854-4225. You can also follow her on Twitter @FarFarrAway.