Santa Rosa shooting sparks debate on realistic airsoft guns
Published: Monday, November 11, 2013 at 2:59 p.m.
Last Modified: Monday, November 11, 2013 at 2:59 p.m.
The shooting death of a 13-year-old Santa Rosa boy has reignited a national debate on the wisdom of manufacturing BB, pellet and airsoft guns to look like firearms, and whether new laws or bans are needed to prevent future tragedy.
Critics have long argued that statutes governing what are variously described as “look-alike” or “imitation” firearms sow confusion and do little to protect the public and police.
Lawmakers and gun control advocates across California are now focusing on the death of Andy Lopez as they weigh whether to renew their push for more stringent regulations. Lopez was shot and killed Oct. 22 by a Sonoma County sheriff's deputy who reportedly mistook the teen's BB-style gun for an assault rifle.
“The tragic reality is that there will be more Andy Lopezes as long as these guns are manufactured to look like the real thing,” said state Sen. Kevin de León, D-Los Angeles.
De León said in a recent interview that he wanted to consult with fellow lawmakers, including state Sen. Noreen Evans, D-Santa Rosa, before he decides whether to introduce new legislation in January.
The senator's previous attempt to get passage of a law requiring BB guns to be painted a certain color was opposed by gun manufacturers and the gun lobby on the grounds that the state law would violate federal statutes and be akin to a ban.
Ryan Podesta, who owns Thirty First Outfitters and Playland in Cotati, said kids want BB guns that look like the real thing, and that they'll simply modify the weapons if the law changes.
“John Wayne didn't have a pink rifle. Arnold Schwarzenegger doesn't carry an orange machine gun,” Podesta said. “Our military and heroes and our troops that we're supporting and who kids look up to ... they're not carrying around Day-Glo weapons.”
He called the response to Lopez's death a “knee-jerk reaction” to a “terrible incident.”
But Sonoma County officials, including Sheriff Steve Freitas, signaled support for the color changes. “Anything that can help prevent things like this from happening I would support,” Freitas said in reference to Lopez's death.
Evans, whose Senate district includes the southwest Santa Rosa neighborhood where the Lopez family lives, declined several interview requests for this story.
From 2008 to 2011, 354 Californians visited emergency rooms for injuries related to BB or pellet guns, according to state Department of Public Health records. However, no state agency tracks how many people have been wounded or killed by law enforcement in incidents involving such weapons.
There have been a handful of such cases reported around the country. That includes a 15-year-old Texas boy who was fatally shot in 2012 in the hallway at his middle school and a 12-year-old Arkansas boy who was shot dead in a darkened lot.
The 2010 shooting of a 13-year-old boy in Los Angeles sparked the most recent efforts to enact BB-gun legislation in California. The boy was paralyzed from the neck down as a result of being shot by a police officer, whose life also was changed by the event.
“You definitely don't want the shooting of a 13-year-old boy on your conscience for the rest of your life, even if you were trained to respond to the situation,” said Los Angeles Police Detective Richard Tompkins, who oversees the agency's gun unit.
Santa Rosa police, who are investigating Andy Lopez's death, said the teen was carrying a replica AK-47 assault rifle that fired plastic BBs. However, police did not specifically call it an airsoft gun. The Press Democrat's request for more specifics on the make and model of the weapon was rebuffed by police on the grounds that the gun already has been booked into evidence and thus is not readily available.
Lopez was shot and killed by Sonoma County Sheriff's Deputy Erick Gelhaus, reportedly after the 24-year veteran, weapons expert and military veteran mistook the weapon the teen carried for a real assault rifle. Police said Gelhaus, who was with a trainee, fired after Lopez turned and the barrel of the gun rose toward the deputies. Gelhaus fired eight shots at the boy, hitting him seven times.
Minors under 18 are prohibited from purchasing a BB, pellet or airsoft gun in California, but they are allowed to possess one with permission from their parent or legal guardian.
Federal law requiring “look-alike firearms” to be affixed with bright orange tips applies to airsoft guns, which expel plastic BB's, but not to “traditional BB” guns, which fire metal projectiles. Paint-ball and pellet-firing air guns also are excluded from federal restrictions.
Police said there was no orange tip on the gun Lopez was carrying, leading to speculation that it had been broken off or removed. The gun did, however, have a translucent center.
California bans the manufacture and sale of “imitation firearms.” “BB devices,” defined as those that expel a projectile no larger than six millimeters through the force of air pressure, gas pressure or spring action, are exempted from the ban, as are “spot marker guns.”
However, state law defines BB devices as imitation firearms for the purposes of regulating their use.
The law prohibits people from displaying imitation firearms in public unless the entire body of the gun is colored a certain way, or constructed entirely out of transparent or translucent materials. Exceptions also are made for certain activities, such as for hunting or theatrical productions. A first violation is punishable with a $100 fine.
Lopez appears to have been violating both state and federal statutes by openly carrying an airsoft gun that did not have an orange tip and was not entirely colored a certain way or translucent. He also had a clear plastic replica handgun with an orange tip at the end of the barrel tucked in his waistband.
The replica rifle reportedly had been passed around by neighborhood kids. Unlike firearms, air guns sold in California are not stamped with serial numbers, which limits tracing them to the original point of purchase and subsequent changes in ownership. Some, but not all, air gun manufacturers stamp a lot number on their products, which can only be used to trace the gun to the point of sale, according to a 2005 state Senate Office of Research Report titled “Pellet Guns and BB Guns: Dangerous Playthings in the Open Market.”
Among the report's recommendations were that “non-powder guns” be incorporated into laws governing access to and possession of firearms, such as requiring that they be registered at the point of purchase.
Those recommendations were never implemented, even as the sale of BB devices and similar weapons that look like real firearms has proliferated. AK-47-style guns similar to the one Lopez apparently borrowed from a friend can be found at numerous retailers in Sonoma County or online.
At Sports Authority on Santa Rosa Avenue, a model retailing for $139.99 has a magazine capacity of 600 BBs that exit the muzzle at speeds of up to 400 feet per second. It is advertised as a “nonreplica rifle,” though the image on the box depicted a product designed for realism.
State law requires packaging on airsoft guns to carry a warning stating that the weapon could be mistaken for a firearm by law enforcement and that altering or brandishing it in public could be dangerous and illegal.
Some lawmakers say the current guidelines aren't enough to stem tragedy.
“What purpose do these imitation firearms serve?” said Assemblywoman Mariko Yamada, D-Davis, whose district includes part of Sonoma Valley and the city of Rohnert Park. “Do we need to manufacture them?”
Assemblyman Marc Levine, D-San Rafael, said the law requiring airsoft guns to be equipped with an orange tip “isn't working” as a prevention for what he labeled “senseless tragedies.”
Assemblyman Wes Chesbro, an Arcata Democrat whose district includes northern Sonoma County, declined several requests for an interview.
De León's effort in 2011 to get color changes for BB guns passed the Senate but failed to make it out of the Assembly's Public Safety Committee.
The trade association for America's firearms industry argued in opposition to the bill that color requirements for BB guns would lead to the unintended consequence of the weapons being viewed as toys, and thus increase the risk of injury.
The National Rifle Association claimed that the coloring requirements and civil penalty for selling non-compliant BB and pellet guns would amount to an extra expense for manufacturers and represent a step toward a ban.
Ed Worley, the NRA's Northern California representative, did not return a message seeking comment. Neither did Kathy Lynch, a Sacramento lobbyist for the Airsoft Safety Foundation.
De León succeeded with a more narrow approach in 2012 with SB1315, which was signed by Gov. Jerry Brown and gives Los Angeles County the authority to enact new guidelines for BB guns and similar weapons. The city is drafting an ordinance.
The Los Angeles Police Department and the city's mayor requested the legislation after the 2010 incident in which an officer shot and wounded 13-year-old Rohayent Gomez. The boy had been playing cops and robbers in the street when two police officers on routine night patrol stopped to investigate. Police said the teen defied orders to surrender and produced a gun, which turned out to be a replica Beretta 92F handgun that shot pellets.
Attorney Arnoldo Casillas, who won a $24 million jury verdict against LAPD on behalf of the Gomez family, is now representing the Lopez family. Casillas did not return a message seeking comment.
Los Angeles's draft ordinance likely will include a provision that BB guns and similar weapons sold in the city be brightly colored, said Tompkins, the LAPD detective.
He said orange tips on these weapons aren't enough because such markings are easily concealed in a waistband or pocket, or removed or colored over.
“It's a common-sense thing,” he said. “We've reached a point where we have toy guns looking like real guns, and real guns looking like toy guns. I don't see the reason for that.”
A spokesman for the city attorney's office did not return a phone call last week.
Los Angeles's ordinance could be subject to legal challenge. Such was the case when New York City passed an ordinance prohibiting look-alike or imitation firearms unless the entire exterior of the device is colored brightly or made entirely of transparent or translucent materials.
The New York State Court of Appeal upheld the ordinance on the grounds that additional regulations at the local level “complement” federal law.
Santa Rosa Mayor Scott Bartley, who supports new regulations, said it “upsets” him that manufacturers make toy guns to look like the real thing. He said his preference is for those regulations to apply statewide.
“What does it really do if Santa Rosa could say, 'You can't sell them here?' It makes us feel good, but you can go to San Francisco or Oakland and buy one and bring it back here,” the mayor said.
David Rabbitt, chairman of the Sonoma County Board of Supervisors, said he supports new regulations that would result in “strong, strong differentiation” between firearms and fake or toy guns. He also questions whether manufacturers could make BB or airsoft guns that would stop working if the orange tips were removed or altered.
Rabbitt said he, too, prefers new laws to apply evenly statewide. But he said he'd support new regulations just in Sonoma County if that's all advocates can get.
(You can reach Staff Writer Derek Moore at 521-5336 or email@example.com. On Twitter @deadlinederek.)
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