Mimesis Law
3 April 2020

What’s A Guy Gotta Do To Get a Toy Gun Around Here?

Aug. 6, 2015 (Mimesis Law) — I grew up in New York City. A Jewish kid. We didn’t have guns in the house. Neither did any of my relatives. Or my friends. Nobody hunted. Nobody thought about self-defense. There were 175 apartments in our building. Surely, I now realize, there were a few people who had guns. But I sure didn’t know it then, and I’d have been shocked to have heard it. And, frankly, horrified.

I knew there were guns out on the streets, of course. The cops had them. And the bad guys. Hell, there were shootings in the neighborhood. But we didn’t do guns.

Real ones, that is. I had an arsenal of toy guns. So did my friends. So did all the kids. Mostly cap guns. Loud. Smelled of gunpowder (or so we told ourselves) when they shot. Pistols, rifles, tommy guns f’rgodssake (no violin cases, though). Faux muzzle-loaders and Winchesters. Revolvers and what we thought were Lugers and Derringers. (There was this one in a belt buckle and if you had the belt tight enough and exhaled just right it would turn out and fire.)

We played cops and robbers on the streets and cowboys and Indians and WWII war games in Central Park and Riverside Park. And Davy Crockett at the Alamo in the living room.

We practiced fast draws and had shootouts in the hallways. We wore gunbelts with sixguns when walking down Broadway going to visit a friend or heading for the park.

And the more realistic the better, since the whole point was that we really did believe.

I’m no fan of the Second Amendment and the right to bear arms. As a matter of policy, I favor strict gun control. I’d rather there were no guns at all. But we have the Second Amendment which really does provide for a right to bear arms. Not so much for self-defense from random street thugs and bad guys, but for defense from the government. To ensure that the government doesn’t overreach, and to provide the means of revolution when it does. (The courts aren’t prepared to go that far, which I understand, since it follows that people then would need to have the right to nuclear weapons and nobody’s really going to approve that.)

So you can have, as the courts have been (often grudgingly) making clear since SCOTUS decided District of Columbia v. Heller, and then McDonald v. City of Chicago, guns. Concealed carry is becoming normative. And then there’s open carry.

In Northrup v. City of Toledo Police Department, the Sixth Circuit held that a Toledo cop did not have qualified immunity from a civil suit when he handcuffed Northrup, put him in his squad car for 30 minutes or so, and temporarily took away the handgun he had in a holster on his hip. The gun plus a 911 call from a nervous citizen gave him cause, he argued. No, said the court. Not cause to take the gun or detain Northrup who was doing nothing that looked illegal.

One hudred miles to the east, in Cleveland, 12-year-old Tamir Rice had a toy gun. He was killed by a cop who feared that the toy gun was real and neither tried to find out nor tried to disarm Tamir.

In New York, meanwhile, maybe I could get a real gun. But it seems I can’t get, at least not legally, a toy gun that looks real. Hence, a December press release from New York Attorney General Eric Schneiderman.

The Attorney General’s investigation is focusing on ensuring compliance with state law to prevent the purchase of prohibited toy guns both in stores and online. State law prohibits the sale of imitation guns in realistic colors such as black, blue, silver, or aluminum, unless it has a non-removable one-inch-wide orange stripe running down both sides of the barrel and the front end of the barrel.

And now five big retailers, including Wal-Mart, Sears, and Amazon have agreed to stop selling toy guns that don’t look like toys. And to pony up $300,000 in fines.

Because, NPR reports, Tamir Rice. And because, Schneiderman says in the press release, real-looking toy guns are dangerous.

“When toy guns are mistaken for real guns, there can be tragic consequences,” said Attorney General Schneiderman“New York State law is clear: retailers cannot put children and law enforcement at risk by selling toy guns that are virtually indistinguishable from the real thing.”

Wait, what’s that again?

[R]etailers cannot put children and law enforcement at risk.

The risk for kids? I get that. Cops will shoot the kid because they’re too scared to (1) back away, (2) investigate, or (3) ask the kid to drop the gun. And because cops are allowed to kill anyone who makes them nervous.

But the risk for law enforcement? Being shot with a toy gun? No, can’t be that.

Ah, got it. Cop might kill innocent kid and be put on paid leave for a few weeks before everyone concludes it was justified. Because after all, it was theoretically possible that the kid had a real gun and that the kid was going to shoot the cop with it.

Sure, the theoretical possibility certainly made the cop nervous and therefore gave him an excuse legal basis to kill the kid. Even so, the killing might take the cop off the street for a few days. Which would be, of course, a major risk for the cop, whose protection from the psychic trauma of embarrassment is at least as important as the kid’s protection from being killed.

And that’s why I can’t buy a realistic toy gun anymore in New York.  Damn that Tamir kid. What an inconvenience his killing causes innocent kids growing up in New York.

Main image via Flickr/Joe Loong

4 Comments on this post.

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  • Peter Orlowicz
    6 August 2015 at 1:20 pm - Reply

    Unfortunately, I think the law enforcement perception of risk from a toy gun comes from the possibility of an officer getting shot with a real gun when he hesitates, knowing that the black thing in the other guy’s hand might be a toy gun rather than a real one. At least that’s what I dimly recall from training when I was a police dispatcher. Under the same reasoning, of course, retailers shouldn’t be permitted to carry Nintendo Wii remotes or cell phones…

    • Jeff Gamso
      6 August 2015 at 1:38 pm - Reply

      And that risk would be greater if there were evidence that officers hesitate. Tamir Rice (2 seconds) leaps to mind as evidence that they don’t.

      • Greg Prickett
        6 August 2015 at 10:35 pm - Reply

        The rookie was put in that position by the senior officer, who drove (like an idiot) right up to Rice.

        In that position, I probably would have shot Rice too.

    • shg
      6 August 2015 at 1:47 pm - Reply