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Court TV

A toy gun, a real crime

By Matt Bean
Court TV

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NEW YORK (Court TV) -- Alan Newsome never thought his BB gun would kill anyone.  When he brandished it in the hallway of his Harlem apartment building, it was just something to help scare some cash out of a burger joint deliveryman. But the deliveryman turned out to be a cop, and when Newsome pulled the fake gun, the cop's partner shot the 17-year-old three times in the chest, killing him.

Though it was just a prop to Newsome, the BB gun could look just like a 9-mm handgun to a frightened deliveryman or a detective faced with a life-or-death decision. Deaths caused by toy guns passing for real ones are rare, but often high profile. In 2000, budding actor Anthony Dwain Lee (who had roles in "Liar, Liar" and "ER") was shot while holding a rubber toy gun by an LAPD officer at a Beverly Hills, Calif., Halloween party.  In January 1997, a 26-year-old Long Island woman was shot and killed by an officer who mistook a toy gun she carried for a real one.

The problem is nowhere more prevalent than in New York, where Newsome's death was just one of a number of prominent New York shootings involving toy guns. In April 2000, two suspected gang members were shot dead by undercover NYPD narcotics officers after they used fake handguns to rob them.  In August 1998, a 16-year-old New York boy bearing a submachine gun water pistol was shot six times in the legs by police.  Another boy, this one 13, was shot and killed in 1994 by a police officer who mistook his toy gun for the real thing.

Although federal law already places some restrictions on toy guns, a pair of New York lawmakers plan to go further. Citing the prevalence of crimes committed in New York using replicas -- 1,400 in 1987, the last available statistic -- they want to ban toy guns from the city altogether

"We have to go to the source," says Brooklyn councilman Albert Vann, one of two authors of the proposed ban.  "There have been more deaths in New York City due to toy guns than any other city in the nation.  It seems to me that we have no other alternative than to make them unlawful."

Vann and the bill's co-author, Queens councilman David Weprin, have seized upon Newsome's death to generate support for their bill, which was introduced last October.  But the controversial measure has been decried by some, including the toy industry and, not surprisingly, gun rights groups, as a quick fix that ignores the real problem, criminal intent.  It's not the toy guns that cause deaths, they say, it's the people who use them to commit crimes.

A toy gun culture

Makeshift toy guns have been around almost as long as firearms themselves, but the modern history begins with the cap gun, invented by shotgun manufacturers who retrofitted their factories in the settling smoke of the Civil War.  In 1886, the first BB gun was created, scaring parents because it actually worked.  Cheap, non-functional replicas, called penny guns, sprang up then as well, riding the coattails of improved manufacturing techniques.

In the 1950s, the toy gun vaulted into the mainstream when the swashbuckling, dual-holstered cowboy of the Wild West boosted sales to almost $300 million dollars over the decade. (Think Ralphie Parker, boy protagonist of "A Christmas Story" and his quest for the Red Ryder BB gun.)  Westerns waned eventually, but the rise of the toy gun continued in the following decades.

In the 1980s, anti-gun activists leveled their sights on BB guns.  The pared-down pistols and rifles, they noted, could do just what mothers had cautioned they would for years: "put your eye out." One study found that almost all BB guns were able to achieve the 39 meters per second required to penetrate the eyeball. 

Toy guns didn't become a target of federal lawmakers until the late 1980s, when the Federal Imitation Gun Law was passed, requiring manufacturers to modify their toy guns to make them appear less realistic. In October 1992, the U.S. Department of Commerce issued regulations governing the "Marking of Toy Look-Alike and Imitation Firearms."  Under the new specifications, toy guns were required to bear a solid, "blaze-orange" plug at the tip of their barrel, or be colored entirely white, bright red, orange, yellow, green, blue, pink or purple.

Paint it black

The problem with the existing toy gun regulations, says the Queens councilman leading the fight, is that they're easily defeated.  "These guns, you can spray paint 'em.  It defeats the purpose," Weprin said.  "I have a [toy] gun that I bought myself. I spray painted it black and it looks identical to the gun that's on the front page of the newspapers."

Weprin is worried that juveniles with a criminal bent will use toy guns when they can't get the real thing.  Buying a gun isn't particularly difficult for those with connections, but for the younger crowd, a toy is easier to come by.

The councilman, a father of five, also says kids won't be missing much without a toy that encourages violence.

"People ask me, 'When you were a kid didn't you play with toy guns?'" said Weprin.  "The answer was, yes, I played cops and robbers, but I also used to play with toy cigarettes.  I wouldn't want my kids using those either."

Lawmakers across the country are also addressing the issue. In November 2002, the Carrollton, Texas, city council amended its firearms ordinance to outlaw the possession of toy guns by minors and to make it illegal to use toy guns in public in any manner that would cause alarm.  And laws curbing the accessibility of BB and pellet guns have been strengthened in Chicago and Baltimore.

On a national level, New York congressman Edolphus Towns plans to reintroduce a bill on Jan. 7 that would "ban toys which in size, shape or overall appearance resemble real handguns."  Towns' measure does not go as far as the proposed New York City ban. The bill, whose first rendition died in committee last session, seeks to tighten restrictions to prevent replicas from being too similar to real guns (and thereby easily modified) while allowing individuals to continue enjoying toys they already have.

It's a necessary compromise, says Brenda Pillors, congressman Towns' chief of staff. "When you start talking about a total ban it becomes something quite difficult to do," said Pillors.  "One would theoretically like to do that, but the reality of it is nonexistent.  The question becomes, how do you define what a toy gun is?  Is it a stage prop? Is it a water gun?"

A spokesman for the Toy Industry of America likens the proposed New York ban to "The Grinch Who Stole Christmas."

"It would be ridiculous to eliminate products like Nerf guns, Star Trek phasers, and translucent water guns that aren't used in criminal activity," said Rick Locker, the association's counsel, who plans to argue his point to the New York City Council on February 6.

"To blame toys when the real issue is criminal intent is a red herring.  It's a quick fix," he said.  "Police officers don't react to a toy, they react to the situation.  And you could easily create out of wood or a flashlight something that could fool them just as easily as a toy gun." 

Instead of a ban, Locker suggests strengthening penalties for the use of decoy weapons. One motivation for using a prop weapon, admits Brooklyn councilman Vann, is the chance of getting less jail time if caught with a water pistol, say, instead of a Desert Eagle .45-caliber handgun with the serial numbers filed off.

The two New York City lawmakers also hope that a strong showing in the city council will spur the state legislature to boost penalties for selling toy gun replicas, which now top off at a year in prison and a $1,000 fine.

The debate has made curious bedfellows of the toy industry, concerned about loss of profits, and gun rights groups, who object to the implication such a ban could have on real guns.

"We don't think that the government has any business regulating toys, especially guns," said Angel Shamaya, executive director of the guns rights organization Keep and Bear Arms. "Banning toy guns is just another feel-good anti-gun maneuver, and we oppose it."

But for supporters of the ban, that's partly the point. Beyond preventing crimes committed using gun replicas, the councilmen simply want to keep guns of any sort out of the hands of youngsters.  Said Vann, "If they use toy guns there's a greater chance they'll graduate to the real thing when they grow up."

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