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Fatal Texas shooting highlights struggle to regulate replica guns

Toys, BB guns and pellet guns subject to a confusing patchwork of laws

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The fatal police shooting earlier this month of a Texas middle school student clutching a BB gun — the latest in a series of incidents involving imitation firearms — spotlights how localities and states have struggled to identify and control both look-alike toys and guns that fire something other than bullets.  

Like virtually every issue involving firearms, this one is complex and fraught with political peril.

While real school shootings are rare, children show up at schools with imitation guns often enough to raise concerns, especially among law enforcement personnel.  In California, for example, about 1,330 school suspensions were issued to students for bringing imitation firearms to school during the 2010-11 academic year, according to state data analyzed by the Center for Public Integrity. Seventy California students were expelled for this offense during the same year.

And, even though some U.S. cities and states forbid it, kids regularly play with increasingly real-looking guns in neighborhood streets, parks or forests and in their own yards, sometimes attracting police attention that ends in children’s deaths.

Regulation of imitation guns exists but is limited at the federal level.  Instead, a confusing patchwork of laws to regulate the sale, use, and color of replicas has developed among states and communities.  But whenever proposals to restrict imitation guns come up, controversy and opposition are sure to follow.

The state of California was the scene of such a high-stakes battle over an attempt at “look-alike” gun control last year. A measure to impose mandatory bright color requirements on all BB and pellet guns — so that police could easily identify them as imitation — failed under a heavy campaign of criticism from gun rights groups and others that it was misguided.

A troubling history

Reports of deaths, injuries and close calls involving imitation firearms have been frequent in recent years.  In 2007, a 12-year-old boy in West Memphis, Ark., was shot dead by a police officer who was on a stakeout and reportedly fired at the boy because he made an “evasive” movement and appeared to have a gun he didn’t drop. Police later said the boy had a toy closely resembling a real handgun.

In 2007, a San Diego, Calif., police officers reportedly shot and killed a teenager who had an imitation revolver on the passenger side of a car seat. That same year, a police officer reportedly nearly opened fire on one of three teens who were playing with real-looking guns on a school playground in Azusa, Calif.

On Jan. 4,  in Brownsville, Texas, a panicked assistant principal called 911 and reported that a student was in a hallway brandishing a black gun. Police entered and later said that they repeatedly warned Jaime Gonzalez Jr. to drop his weapon before an officer fatally shot him. It turned out the boy, 15, had a black “nonpowder” BB gun that closely resembled a high-powered Glock firearm, according to police.

Since 1989, federal law has required that “look-alike or imitation” toy firearms be manufactured or imported with a permanent bright orange plug at the end of a non-shooting barrel or a body that’s brightly colored. So-called “airsoft” guns that shoot lower-speed plastic pellets are also subject to federal color requirements that they have an orange collar on the muzzle or transparent or neon-colored bodies.  Some states have enacted their own laws governing appearances. In California, for example, non-firing toy guns are supposed to always be brightly colored.

The imitation firearm in the Brownsville case, though, had no special markings. The 1989 federal law excludes traditional BB guns and pellet guns whose “muzzle velocity is too high for them to be considered mere toys,” said Henry Wixon, chief counsel for the Commerce Department’s National Institute of Standards and Technology, which regulates the fake firearms. Yet, these types of “airguns”  are not firearms either, Wixon said, so they are not subject to government rules regulating real guns.

The Brownsville boy’s parents said they didn’t know how he got the BB gun, which minors are barred from purchasing. Public reaction to the Gonzalez boy’s shooting has focused heavily on the difficulties police face when in the heat of the moment and on parental responsibility to ensure that kids don’t play carelessly with imitation firearms, and never take them to school.

Efforts to regulate

But communities have discovered that kids have avenues to get toy guns without parents‘ knowledge. And they’ve also discovered that existing state laws are often violated, including some states’ requirements that toy guns be of a loud color only.

In 2007 and 2008 the city councils of San Diego and Dallas, Texas, both approved, with police backing, local ordinances to block ice cream trucks from selling cheap toy guns to kids. Schools in both cities were alarmed that children were buying the toy guns, and that many lacked the federally required bright orange muzzle markings. Trucks selling the guns were often parked near schools.

A number of cities scattered around the country have taken other steps, including enacting bans on sales or the firing of BB or pellet guns inside city limits, but more often clamping down on public display of any replicas.

Farmers Branch, Texas, among other Texas municipalities, banned the public brandishing of all imitation guns in a manner that could incite alarm after local police officers had close calls; in one instance, officers reportedly aimed their firearms at a child who was pointing his cap gun at other kids.

Gun rights groups have often objected to local restrictions, though, insisting that federal law largely pre-empts states and cities from regulating  the manufacture, sale or distribution of traditional BB and pellet guns excluded from the 1989 law.

Another reason cities have adopted restrictions is the growth in people using real-looking fake weapons, sometimes with orange markings removed or painted over, to commit serious crimes. In many jurisdictions, using a fake gun is considered, legally, just as serious a crime as using a real one to commit a robbery, for instance, or to intimidate someone.

At the state level, New York, since the 1980s, has banned the sale of any imitation gun that can reasonably be perceived as a real firearm unless it is a color other than the standard black, blue or silver colors of real guns, or clearly marked with a bright orange stripe over the entire barrel.

When he was attorney general, current Gov. Andrew Cuomo complained of widespread violations and sent warning letters in 2009 to 100 companies demanding that they stop manufacturing toy guns that violated the state’s law. New York City, for its part, has banned special paint used to color parts of real guns in a bright coating, as well as almost all consumer purchases, possession and unlicensed casual use of BB and pellet guns within city limits.

Pellet gun companies warn customers who shop online that local prohibitions bar them from shipping to New York City, Chicago, San Francisco, Philadelphia and a few other jurisdictions.

There have also been short-lived attempts to modify federal laws dealing with imitation guns.

Between 1995 and 2007, Rep. Edolphus Towns, D-N.Y., introduced federal legislation seven times that would have banned or limited the manufacture and sale of any toy handgun that had the shape or size of a real firearm. The proposals didn’t make it out of committees. Towns’ staff said he was motivated to act by the death of a young boy in his Brooklyn district who was holding a toy gun in dim light in his apartment building and was shot by a police officer.

The Golden state debate

The California legislative struggle was rooted in a December 2010 incident in Los Angeles, where a 13-year-old was shot and paralyzed by a city police officer when officers investigating burglaries came across three youths playing with dark-colored pellet guns in a street at twilight. Since 2005, California law has prohibited most public brandishing of imitation guns on streets and front yards.

Officers said two boys halted and dropped their guns. One failed to comply with a command, officers said, and was shot and grievously injured. The paralyzed boy’s mother said her son was trying to pull out his replica gun to drop it when he was shot, according to Dan Reeves, chief of staff for California state Sen. Kevin de Leon of Los Angeles. Whatever the reality, Los Angeles Police Chief Charlie Beck said the wounded boy’s imitation gun closely resembled his own Beretta service revolver, Reeves said.

And while the paralyzed boy’s pellet gun did have an orange mark around the tip of the barrel, police said, the officer who shot the boy said he didn’t see it.  

Beck then came out in support of action to increase bright color markings to distinguish between firearms and “nonpowder” pellet guns.

So de Leon sponsored a bill last year that would have imposed a sweeping new state requirement on pellet and BB guns. The measure would have required that any BB or pellet gun sold in California be manufactured only with transparent bodies or in certain neon colors, a mandate similar to the state’s color requirement for toys. Backers said the measure was designed to try to prevent shootings of innocent young people by police officers who have to make split-second decisions.

But the legislation was vigorously opposed by the National Rifle Association and makers and vendors of replica firearms. One of the main arguments pellet-gun industry representatives put forth was that parts of real guns are now being painted neon colors — including pink — and that police would be endangered by confusion. Reeves, de Leon’s staffer, said opponents organized an effective campaign. “It seemed that every teenage boy between here and Kentucky was writing to us against this,” he said.

Opponents also argued that the proposal was pre-empted by federal law excluding higher velocity airguns from color requirements. They additionally said it could create a false sense of security by implying that BB and pellet guns were entirely safe, when in reality those weapons could be lethal in certain circumstances. Reeves also noted that said some legislators faced stiff opposition from manufacturers and vendors in their districts, and police chiefs were divided.

In spite of the California Legislature’s reputation for liberalism on gun control, the measure ultimately failed. The bill passed the Democratic-controlled state Senate, where de Leon introduced it, on a 21-16 vote.  

But when the bill went to the Democratic-controlled Assembly, it faltered, as key committee members yielded to pressure from pellet-gun vendors and paintball businesses, Reeves said. De Leon amended the bill to exclude paintball guns from the proposed color requirement, but the measure still failed in the Assembly’s public safety committee.

To salvage his end goal, Reeves said, de Leon ultimately performed a “gut and amend” on the bill, changing it to give cities in California the right to impose restrictions such as the color requirements. That version passed the committee, but when the bill was returned again for another adjustment, the same committee killed it, with some members changing their votes.

Some of the members’ reversal was designed to snub de Leon because he didn’t back other Democrats’ proposals in the Assembly last year, Reeves said, or to show the gun lobby that they don’t always vote against it.  But others, Reeves said, were not convinced the problem was widespread, and “they made the calculation: ‘I’ve got a lot of people who sell these things in my district, so why do I want to upset the apple cart?’ ”

Reeves said Los Angeles police chief Beck made a personal, powerful appeal  to legislators at the state Capitol last year, and that he’d like to push the proposal again. In the wake of the Gonzalez boy’s death in Texas, Reeves said, “I think we need to have better documentation to show that this is a growing trend, and that as these guns get more popular, kids are getting shot because of them.”