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Monday, November 16, 2015

We Ask the SFPD: Can You Tell A Real Gun From a Replica?

Posted By on Mon, Nov 16, 2015 at 3:20 PM

click to enlarge XROPER7/FLICKR
  • xroper7/Flickr

Here’s a recipe for a bad night: Police officers fatally shoot a suspect they believe to be armed, only to find out moments later they’ve just killed someone who was brandishing a toy.

That's what happened Sunday night in Oakland, when a still-unidentified man approached cops while allegedly holding what appeared to be a gun. The officers, who had arrived to roust an illegal street racing and stunt driving huddle, only realized later that the gun was a replica.

It’s a nightmare for the department and a blood-chilling scenario for the public, so we may wonder, isn’t there a way to avoid this? Cops are trained to differentiate dangerous situations in ways that civilians can’t, right? Surely a police officer can employ his keen deductive skills and 21st century technology to distinguish a deadly weapon from a plaything?

It’s a nice idea, but if you actually ask cops, they say no.

“People believe we have some kind of extra training,” says SFPD spokesperson Albie Esparza, but a cop has to decide what is and isn’t a gun the same way anyone else would: by looking at it. Which can be an awful lot of pressure in the heat of the moment.

The San Diego Police Department website offers a test for trying to visually distinguish real and fake guns. I got 11 out of 12 right when I guessed, so it’s not necessarily that bad. But closely examining the objects on a screen with all the time in the world to make up your mind isn’t the most practical simulation, and most of the fakes are disturbingly convincing.

Last year, California passed the Imitation Firearm Safety Act, mandating that almost all commercially sold “non-powder guns” (as BB guns and airsoft rifles are dubbed; the law includes an exception for prop guns used in theater and movies) have bright visual indicators specifically to avoid this problem. This after several high-profile incidents of children shot by California police officers while hauling around toys, such as the case of 13-year-old Andy Lopez in Santa Rosa, who was killed by police in October 2013 after officers mistook his airsoft gun for an AK-47.

But police (including SFPD) argue that the law doesn’t help much, since real guns may just as easily be painted to look like toy guns. It’s probably embarrassing to hold up a liquor store with a Colt you’ve spray-painted hot pink, but that doesn’t mean someone might not try it anyway.

(SFPD cited a famous incident of a shotgun being disguised as a Super Soaker. Snopes, the online myth buster, says that‘s actually an Internet hoax, but does confirm one similar incident with a different kind of gun.) 

And the non-gun that led to Sunday’s fatal confrontation did not conform to the legal requirements anyway.

Police departments are naturally going to frame the issue this way, but Michael Whelan, a San Francisco defense attorney who specializes in police misconduct, says they‘re not just covering for themselves.

“In any specific case I’d want to take a look at the thing, of course,“ says Whelan, “but I’ve seen pictures of the replica guns used by clients I’ve defended, and I couldn’t tell. And I’m not looking at pictures in the heat of battle, so yeah, what they say makes sense.”

Oakland attorney Micha Star Liberty agrees. "Having represented people brutalized by police, I have my own biases," she says. "I represented a woman once who was shot holding a vegetable peeler. But with anything that actually looks like a gun, it's reasonable for police to assume."

So the (possibly unfortunate) rule remains: If it’s even kind of gun-shaped, a cop probably has to assume it’s a gun. SFPD’s Officer Grace Gatpandan adds that common sense also applies: Kids playing in the street where there’s been no call are probably not a danger. Although, she notes, “a situation can always become bigger.” It’s a scary job, after all.

Maybe a better question is why anyone would tempt fate by walking around in public with an authentic-looking fake in the first place?

“I can’t even speculate,” Whelan says. Officer Gatpandan points out that sometimes a fake gun is a cost-effective substitute for a criminal on a budget “if you just can’t get a real gun.” And then, of course, there’s the possibility of someone attempting a “blue suicide,” as "death by cop" is sometimes called.

It’s enough to make an ordinary, law-abiding citizen worry about reaching for his cell phone at the wrong moment. (Another nightmare scenario for cops.) Michael Whelan’s advice: “If a cop tells you to drop what you’re holding, you do two things: First, you drop it. Second, you keep your mouth shut.”

Good advice.

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Adam Brinklow

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