The weapon 13-year-old Andy Lopez was carrying when he encountered Sonoma County sheriff’s deputies in Santa Rosa, Calif., on Oct. 22, certainly looked like an AK-47 assault rifle. It had the AK-47’s distinctive brown stock, pistol grip and curved magazine clip. According to a police statement, Lopez “appeared to be an armed male.”
But appearances — tragically — were deceiving. After one of the deputies, Erick Gelhaus, fatally shot Lopez, they discovered the eighth-grader’s weapon was actually an electric airsoft gun that imitates the AK-47 shape and design but fires only low-velocity plastic projectiles and is available online for as little as $44.95. Andy Lopez, in other words, was killed over a toy.
The shooting has sparked an uproar in genteel Santa Rosa, where residents have held daily protests and nightly candlelight vigils, as well as calls for statewide legislation requiring distinctive markings on imitation firearms. Under federal law, manufacturers must insert a “blaze orange plug” in every toy, look-alike or imitation firearm. But in this case, the plug had apparently been removed from the airsoft rifle Lopez had borrowed from a friend.
According to a 1990 Justice Department report, police departments around the country reported 1,128 incidents between January 1985 and September 1989 where an officer warned or threatened to use force, and 252 cases where actual force was used based on the officer’s belief that an imitation gun was real.
Legislative solutions hard to pass
“It makes sense that [imitation] guns are made in such a way that the average person would not think of it as being a real gun,” said Jack Scott, a former California state legislator who introduced several gun-control bills during his time in office.
In 2011, a bill that would have required manufacturers to paint the exteriors of BB and airsoft guns with bright colors failed in the California Legislature after the National Rifle Association and manufacturers lobbied vigorously against it. State Sen. Kevin de León (D-Los Angeles) had introduced the bill at the request of Los Angeles Police Chief Charlie Beck after a 13-year-old boy carrying an airsoft pistol was shot by an police officer. The NRA called the legislation an “anti-gun bill” that would ultimately lead to a ban on all air, BB and airsoft guns.
Sen. de León has announced he will reintroduce his Imitation Firearms Safety Act early next year. He and others are hoping the outcry over Lopez’s death will be enough to finally overcome the NRA’s lobbying muscle. “It’s one more tragic incident of someone being killed because a police officer was not able to make the decision in a split second whether he had a real gun or not,” said Karin Caves, the senator’s spokeswoman.
The day after Lopez was shot, a Santa Rosa police lieutenant displayed a real AK-47 side by side the airsoft Lopez had been carrying. Apart from the airsoft’s barrel being shorter, it was almost impossible to distinguish the fake from the real. The airsoft apparently was made by CYMA, a Chinese firm that, according to the website of online retailer HobbyTron, “produces some of the most popular, high-quality airsoft guns available out of China.” CYMA’s AK-47s, the site says, are particularly popular because they shoot projectiles at more than 400 feet per second and some “even use real wood and metal to make them as realistic as possible.” Police say Lopez’s airsoft certainly looked realistic to Deputy Gelhaus.
On Oct. 22, the boy was returning the gun to his friend when the two sheriff’s deputies spotted him. “One of the deputies immediately recognized that the subject was carrying what appeared to be an assault-style rifle, similar to an AK-47 assault rifle,” the police news release said. According to a police timeline, the officers alerted dispatch to a “suspicious person” at just after 3:14 p.m. Only 10 seconds later, they reported shots had been fired.
What happened during those critical moments is still unclear. Police said the deputies exited their vehicle, which was behind Lopez, and one of them shouted at Lopez to “put the gun down.” As the boy turned toward Gelhaus, “the barrel of the assault rifle was rising up and turning in his direction.” Fearing Lopez was going to shoot, Gelhaus “fired several rounds from his service weapon at the subject, striking him at least one time.”
But in a wrongful-death suit they have filed against Gelhaus and Sonoma County, Lopez’s parents alleged the shooting was “absolutely unjustified” and “a senseless and unwarranted act of police abuse.” They said the deputies never identified themselves as police officers and Lopez never pointed the gun at them. Struck by the first bullet Gelhaus fired, the boy fell to the ground immediately, but Gelhaus continued firing as he lay on the ground, the suit said.
More than 1,000 people attended the funeral services for Lopez, who has been described as fun-loving, dynamic and vibrant. “This has been tragic and devastating,” a Sonoma County supervisor said. The FBI has launched an investigation into the shooting and protesters have met with Sonoma County’s district attorney, demanding that she file criminal charges against Gelhaus. Around the state, activists also want the Legislature to finally do something to prevent similar tragedies from happening in future.
“Who on earth would want a kid to be shot and killed by a law enforcement officer?” Caves asked. “It’s tragic for both parties.”
Virtually identical replicas
The Justice Department explored the dangers of imitation guns in 1990 after Congress passed the federal law establishing the “blaze orange” marking standard. The report found that in every incident of police use of force where an officer mistook a fake for a real gun, “the shape or design of the gun was a paramount factor in the officer’s decision to shoot. Many of the imitation guns are modeled after real weapons. Even those made of plastic and with some degree of coloration are frequently indistinguishable from real guns, particularly under low-light conditions.”
“Airsoft guns are manufactured to look virtually identical to many real guns, notably ‘assault’ weapons,” the DOJ observed.
California law requires that the exterior of “imitation firearms” be painted in white or other non-black colors, but does not cover any gun, such as a BB device that “expels a projectile … through the force of air pressure, gas pressure, or spring action.” In seeking to plug that loophole in 2011, Sen. de León said BB guns “illicit the same threats and dangers as real guns” and cited the December 2010 shooting of Rohayent “Ryan” Gomez in the Glassell Park neighborhood of Los Angeles. Gomez had been playing with a pellet gun that looked like a Beretta 92F when Officer Victor Abarca shot him, causing injuries that left him paralyzed. “We have seen far too much heartbreak involving these types of realistic-looking guns that are labeled as toys,” L.A. Police Chief Beck said at the time.
Senate Bill 798 passed the state Senate but stalled in the Assembly, never making it out of the Committee on Public Safety. The NRA had mobilized its members against the bill, and the National Shooting Sports Foundation, which represents toy gun makers, has argued that if BB guns had to be colored like toys, “a dangerous risk of injury will be created because users could view them as toys and treat them accordingly. In fact, SB 798 could unintentionally promote the use of BB devices as if they are toys.”
Critics believe the manufacturers’ true motivation for opposing the bill was to protect their sales, which have been estimated at about $300 million a year in the U.S. “They want [their products] to look like real guns because it makes them more attractive” to consumers, Caves said. “They don’t want them to look like toys.” To heighten the realism, many manufacturers include the names of real guns in the names of their products. CYMA, for examples, produces the CM022 AK-47 Rifle FPS-200 Electric Airsoft Gun; UK Arms, a competitor, offers the M306S TEC-9 Spring Airsoft Shotgun BB Rifle.
After the failure of SB 978, the Legislature passed another bill by Sen. de León that authorized the City of Los Angeles to regulate imitation firearms. But Caves said statewide legislation is needed because “you need something consistent for law enforcement to recognize.”
Former state Sen. Scott has doubts that any new bill requiring more differentiation of imitation guns can get past the NRA gauntlet. “No matter what [gun-control] legislation people come up with, they’re against it,” he said. The DOJ report questioned whether coloring an imitation gun a certain way was sufficient, quoting a police chief as saying, “As long as the item in question has the general shape and appearance of a gun, any type of gun, it should be considered and handled as a real gun.”
But Sen. de León is hoping the Lopez tragedy is the tipping point for life-saving change. “You never know what can happen,” Caves said. “Timing is everything in politics.”