BB & Other “Fake” Guns Lead to Very Real Deaths

Posted January 18, 2012 in Criminal Law by


Why would anyone carrying what appears to be a weapon ignore a police officer’s commands to freeze and drop the weapon and advance on the officer? It sounds too strange to be true, doesn’t it? It happens, though, and all too frequently as of late.


  • A Texas teenager armed with a pellet gun was shot and killed by police
  • There have been similar shootings in Ohio and California recently
  • How to prevent these shootings may be just as important a question to answer as “Why?” the shootings happen


Showdown in a Texas Middle School

It wasn’t an ordinary day for 15-year-old Jamie Gonzalez, Jr., or the other students at Cummings Middle School in Brownsville, Texas. Early that morning, Gonzalez punched another student in the face for no apparent reason. School officials intervened, took him out into the hallway and tried to sort things out. The officials noticed a gun tucked into Gonzalez’s pants. After he confirmed it was a gun, the officials locked-down the school and called 911.

Two officers responded. In recordings of the 911 call the officers are heard ordering Gonzalez to drop the gun several times. He refused. There are reports he briefly turned away from the officers, but then turned to face them again and raised the gun. The two officers fired three times. Gonzalez was hit twice in the chest and abdomen. He was pronounced dead later that morning at a hospital.

Gonzalez was indeed carrying a gun, but it was a pellet gun. One made to look like a real Glock semiautomatic handgun.


Not an Isolated Incident

You’d be amazed at how many shooting like this take place, and they don’t always involve kids.

Just before the New Year, police in Cincinnati shot and killed Ronnie Pittman. Neighbors called police saying Pittman, who had just celebrated his 54th birthday, had a gun, was acting strangely and had said he wanted to kill someone.

When police arrived, Pittman pulled the gun from his pants and motioned as if he was going to shoot at the officers. An officer fired at and struck Pittman, but Pittman charged at the officer. The officer fired and hit Pittman again. Pittman ran into his apartment where he was later found dead after a two-hour standoff with police.

Pittman was armed with a BB gun – again one made to look exactly like a real handgun.

Bernie “Chino” Villegas met a similar fate this past weekend in Anaheim. Police responded to several calls from neighbors that Villegas was armed with a gun, possibly a shotgun, outside his apartment building late Saturday night. Details are sketchy, and it’s unknown if Villegas pointed his gun at the officers or threatened them. Ultimately, they shot him twice, killing him.

It turned out that Villegas was carrying a BB gun rifle.


Can You Tell the Difference

9mm airsoft gunreal 9mm gun

The gun on the left is an “airsoft” pistol. It shoots plastic BBs but it’s designed to look like a real 9mm handgun, similar to the one on the right. Except for the orange tip on the barrel and some other minor differences, they both look like real guns, don’t they?

The orange tip is supposed to let law enforcement officials know that it’s not a real gun. Federal laws require manufacturers and importers of “look alike” toy guns, including airsoft guns, to have this orange tip. The law does not, however, apply to BB and pellet guns, like the ones used by Gonzalez, Pittman and Villegas. After exhaustive research, no Texas law could be found requiring an orange tip, either. So, it’s no surprise Gonzalez’s gun had no orange markings.

Put yourself in the shoes of the cop who’s looking down the barrel of a pellet or BB gun that looks like the real thing. The cop has the right to defend himself, and the responsibility of protecting others – like students and staff in Gonzalez’s school and Pittman and Villegas’ neighbors. What would you do?


“Why?” Must Take a Backseat

It may never be known why Gonzalez and Pittman (and likely Villegas, too) didn’t drop their weapons when told to do so. The phenomenon of suicide by cop may be an answer. Psychological problems or drug or alcohol use may also explain some shootings.

Possible solutions to the problem are:

  • Changing the federal law to require orange tips on BB, pellet and other non-lethal, look-alike weapons
  • State or federal laws requiring all non-lethal guns to be a solid color, such as orange or blue
  • Tougher laws on age restricted sales and use of non-lethal guns, like the laws in California and Delaware. BB, pellet and other non-lethal guns are regulated the same as any other firearm in New Jersey (PDF)

It’s worth noting that California lawmakers tried in 2011 to change its laws and require airsoft, BB and pellet guns to be a single solid color, other than black, or completely see-through or translucent. That law didn’t pass, primarily because of pressure from manufacturers.

Perhaps a similar Texas law would have saved Gonzalez’s life.


Responsibility & Accountability

Without diminishing or downplaying the loss and tragedy, Gonzalez and the two adult victims must be held accountable for their conduct.  The zero-tolerance policy at Gonzalez’s school (PDF) wasn’t enough to deter him from bringing a weapon (real or not) to school. Perhaps the school district needs to examine its safety measures.


Police May Be At Fault, Too

No one’s perfect, and while it doesn’t appear that the police acted improperly in either the Gonzalez case or the other two recent incidences, it’s quite possible officers may not be justified in cases like these. Local prosecutors may file criminal charges against an officer for using excessive force. For instance, the circumstances may have called for the use of non-lethal force, such as using a taser, making the officer’s use of lethal force a case of manslaughter or even murder.

The FBI released a publication last year providing guidance on school violence cases, suggesting threat assessment be based on the following principles:

  • Violence is not unpredictable or spontaneous; therefore, information about the student, as well as the pupil’s behavior, can prevent violence.
  • Information should include knowledge about the student, environment, specific situation, and target of the violence.
  • All information should be verifiable and reliable.
  • Authorities should leave out assumptions or subjective impressions about the student’s personality or other characteristics and instead base evaluations on facts and observable behaviors. The warning signs should be used more as guidelines than absolutes.
  • Multiple sources of information (e.g., other students, teachers, faculty, and parents) should be obtained.
  • Conclusions should support the facts as to whether the student poses a threat, not necessarily whether the individual made a threat. Also, assessments should include considerations of whether the subject has the means and intent to carry it out.


Wrongful Death?

Attorney Bonner Walsh

The victim’s family may have a wrongful death lawsuit against the officer and perhaps the police department.”Many different theories have been advanced in the past that would be on point here,” says Bonner Walsh, an attorney at Weinstein Law in Athens, Texas.  “There could be claims based upon failure to adequately train law enforcement personnel, negligent training,  excessive use of force, failing to accommodate people suffering mental health issues, failing to equip SWAT or emergency personnel with less-than lethal alternatives,  or failure to adequately train in weapons identification.”

When a suspect is carrying a gun, or what appears to be a gun, the situation it obviously tense and volatile.  “One must weigh one’s duty to protect and serve against self-preservation, and officer preservation,” Walsh says. “I don’t think anyone would say that police can never shoot unless fired upon, just that when it comes to the citizenry in general, and minors in particular that there should be hard and fast guidelines.”

Wrongful death suits against police and other municipal actors have succeeded in the past in Texas; however, the precedent is far from settled. “I think the true bench mark may come in a yet undecided case,” Walsh says.

Winning the suit and recovering money damages won’t bring back the victim, of course. However, a successful suit not only gives a family closure, but should help to make sure the same officer or police department doesn’t make the same mistake in the future. It should also prompt other law enforcement agencies to examine their policies and training so they can avoid such tragedies all together.

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