Nearly every state has enhanced penalties for armed robbery compared to your standard, garden-variety robbery. In Nebraska statute, for instance, to be considered armed, waiving a toy or replica gun isn’t enough.   If the robber can show that what he used during a hold-up wasn’t a real gun, then the enhanced penalty for the use of a firearm doesn’t apply. From ketv.com . . .

“It looks like a real gun. You know it acts like a real gun,” Kleine said. He made the comments while showing KETV NewsWatch 7 a fake gun used by a teen to commit a robbery. 

But under state law, the fake gun isn’t a firearm, even if it’s used to commit a crime.

The current law gives robbers an incentive to use fake or toy guns in the commission of their crimes. That may actually be a good thing. I’d rather have robbers used fake, toy, or ineffective guns instead of the real, deadly variety.

 Nebraska senators have yet to sign off on toughening the law about using toy or replica guns in crimes. It hasn’t yet come out of committee. There’s talk of adding it as an amendment to other legislation.

Many robbers never believe that anything is going to go wrong when they are in the process of committing crimes, so they’re comfortable using toy or fake guns. A surprising number of robbers use guns that aren’t loaded, guns loaded with the wrong ammo, or loaded with much less than full capacity.  In one of the few studies to consider how criminals are armed, Greg Ellifritz, from a small midwestern police department found this:

Out of 85 weapons seized:
– 24 are not loaded
– 2 are not loaded with the correct ammunition
– 9 are completely broken

Combine those facts and you will see that 41% of the weapons we seize from criminals are completely non-functional!

No one has developed a national database on this, so there could very well be considerable variation. Still, it is interesting information.

It might be wise to encourage this trend. If a criminal’s gun is fake or doesn’t work, their victims can’t be shot with them. The downside for the perp, of course, is that a person who can’t tell if their attacker’s gun is fake would be justified in assuming that the gun is real and loaded, thus increasing the chance of the bad guy catching some lead. Should we make the penalties for using a toy gun as severe as they are for the real thing?

©2014 by Dean Weingarten: Permission to share is granted when this notice is included. Gun Watch

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75 Responses to Question of the Day: Should Toy Guns Bring the Same Penalties as Real Guns?

  1. Do NOT make the penalties for using a fake gun the same as for a real one – I much prefer the criminal element to carry toy guns. However, I would agree with a law that defines the act as “justifiable homicide” for anyone who shoots a criminal who is using a toy gun to commit a felony. None of that “justice system” second guessing about how the honest citizen “should have known it was only a toy gun.”

    • Thats stupid, it totally should be the same penalty if someone uses a toy gun to commit a crime. There is no difference for the victim, its still assault, and they deserve to be ventilated for the sheer stupidity of it.

      • In most states, “simulating” a weapon is the same as actually having one. In states with Castle Doctrine laws making it legal for the victim of an attack to fight back rather than retreat, bad guys with fake guns ARE going to get shot by their intended victims. If one commits a robbery using a fake weapon, he SHOULD be charged with armed robbery – simply because the victim can’t be expected to be able to know the weapon is fake.

    • I have to agree with Pete. It is much better for the victims if the criminals are encouraged to use fake firearms, and it is MUCH better for the armed citizen during a DGU if the Bad Guy can’t actually shoot back. It is also much more likely that the BG will run like hell as soon as confronted with armed opposition.

      As for the little orange piece – how hard is it to remove that thing? And how hard would it be to add one to a real gun if you thought it was necessary to fool people?

      The penalty for armed robbery or assault should be the same, whether or not the weapon was real, but there should be no enhanced penalty for the use of a weapon, real or not. It is the crime we should be prosecuting, not the tool being use by the criminal.

      • It’s not removable. Airsoft guns have the entire barrel made out of orange plastic to differentiate them from real ones.

        Of course, nothing stops anyone from just painting the damn things black.

  2. A pointing a fake gun at someone can get you shot just as fast as pointing a real one.

    That’s a pretty severe penalty.

    • The penalty should also apply to the criminal for anyone that is injured accidently when a DGU is employed against a toy gun as though he was the shooter. Much like murder charges when an accomplice is shot by a robbery victim.

      • The criminal is considered the cause, even if its the cops that end up shooting the citizens. So if the cops shoot their partner and the 5 people behind them, he gets charged with 6 counts of murder and not them.

    • That isn’t a “penalty”

      You need to bear in mind the distinction between penal punishment and self-defnse. You have NO authority whatsoever in any way, shape or form to punish a criminal as a private citizen. You have every right to defend yourself against a threat which you reasonably believe to be happening.

      It is fully possible for an innocent to be killed by someone defending himself lawfully, for example. Not just in transferred intent (I shoot at bad guy miss and hit bystander) but in being mistaken about the threat, though in circumstances where my belief was reasonable.

      Nowhere do you judge guilt. And when guilt is evaluated, especially the mens rea, it is manifest that one who robs with a toy gun is not as guilty as one who robs with the real thing and, paribus ceteribus, does not deserve the same punishment

  3. If somebody points a gun at me, I will assume they desire to be in a gunfight and accomidate them.

    If you are pointing a toy gun at me, it is because you intend for me to believe it is a real gun. You have made your intentions clear. You are trying to get me to do something that I wouldn’t normally do unless the gun was in the equation.

    Play stupid games, win stupid prides.

    The penalty should be the same.

  4. The difference between Assault and Battery. Whether the assailant connects with his punch. Next time ask your mugger to shoot you to make sure its a real gun. Then he is really in trouble.

    What if a thief breaks into your home in the middle of the night with a toy gun. He threatens to shoot your kids and you blow him away. The police discover he is carrying a fake gun and now you are in trouble because you met his force with unequal deadly force because he was just carrying a fake gun. I don’t like that slope we are one. It feels slippery.

    • Find me one example where a DA prosecuted someone for shooting someone who had a fake gun who though it was real. The reason there are penalties for toy guns is exactly because a gun owner or the police may not be able to tell the difference. Many kids cut the orange tip off of airsoft guns. Hell, the NYC police shoot if you have a subway card in your hand.

  5. Short answer: No

    Somewhat longer answer: All you have to do is look at NYC or any “zero tolerance” policy to see the logical conclusion to these laws.

  6. “The current law gives robbers an incentive to use fake or toy guns in the commission of their crimes.”

    “Many robbers never believe that anything is going to go wrong when they are in the process of committing crimes”

    So which is it? Do robbers use toy guns because they think they might get caught and know about the additional penalty or do they not think anything is going to go wrong? Additionally, what exactly makes you think someone who is committing armed robbery is going to care about the additional penalty of a firearm law? Maybe we should put some “no guns allowed” signs up with that logic.

    Criminals generally use replica guns because they’re easier/cheaper to get.

      • Flashbacks to first year Criminal Law. Would Reasonable Man (not the superhero) believe the gun was real and comply with the perp’s demands? The bad guy’s intent is that RM believe so. Hell yeah, it’s an armed robbery and the punishment meted out should reflect that.

  7. Short answer: yes.

    Long answer: The person using the fake gun is using it to intimidate you into comply with his demands. As many posters have already pointed out you don’t know if it live or Memorex so you act accordingly. You only know ex post if at all that it was a fake. You will find out if it’s fake when you pull out your 44 magnum and blow his head clean off. Oops you shot an unarmed man. Fair is far, if the fact that the gun was a toy and does not carry an armed robbery charged with enhanced penalties than your oops ought to get you prosecuted for manslaughter since you shot an unarmed man who posed limited in any direct threat to your life.

  8. To avoid law abiding citizens being prosecuted by publicity seeking D.A.s or criminals trying another way to steal your money, the law needs to protect citizens by responding with deadly force if the “weapon” being used by the perpetrator is a fake.

    Though manufacturers are now required to put an orange insert in the end of the barrels to designate it is a fake, the orange insert can easily be cut off and black shoe polish used to color any remains. Also, in the shock of the moment, a citizen may miss the small orange insert, even if it is there.

    Criminals that are so dumb as to use dis-functional guns, fake guns, toy guns, guns without ammunition or improper ammunition may be just as dead if they try to rob any of my neighbors, family, or myself.

  9. Not a good idea. I doubt criminalizing the use of toy guns will have any deterring effect on robbers. There is a lot of potential for downside. The definition of “gun” is already being twisted by the small minded into just about anything. Imagine what they could do with “toy gun.” We already see the pearl clutching school administrators getting police involved when a kid brings the wrong toy, food (pop tarts?!), makes the wrong gesture at school. We can expect police being called and hauling off kids for playing cops and robbers, etc. The TSA won’t just make your kid throw away his G.I. Joe, they will call the cops who will arrest you at the airport checkpoint, because “toy gun” will become “real threat.” Halloween is going to be an authoritarian’s wet dream.

      • Certainly. I am sure the lawmakers are sincere about punishing criminals. But doesn’t all bad legislation always begin with the premise that it will only be used in very specific situations and not be abused? In reality a toy gun is not equal to a real gun. If the law treats them as the same, inevitably perceived questionable uses will be prosecuted. When you get right down to it, they are trying to criminalize a thought. From the article: “”His intent obviously is to scare somebody, to terrorize somebody, to put somebody in fear to take their property,” Kleine said.” Why not amend the robbery law to add an additional penalty for the criminal being excessively scary without adding more stigma to toy guns.

        • This is not criminalizing thought. It is criminalizing action. As I said before if you shoot someone who is basically unarmed because you “thought” the gun was real but it wasn’t then you should subject to prosecution. How is being threatened with a toy gun an imminent danger of death or grievous bodily harm?

        • td, a person who uses lethal force when threatened by a toy gun will be judged under a reasonability standard, not a standard of omniscience. The rule would be the same if the defender was threatened with a real but unloaded gun.

          If the toy gun looked like a gun and not a Super Soaker, the defender will be judged as if the gun was real and loaded.

        • Ralph:

          All of a sudden you have faith the system?

          But to the original point, if the use a toy in criminal act makes someone have a resaonable fear for his life then it should be penalized as if the gun were real.

    • The definition of guns can be quite liberal.
      It used to be extortion when the bully threatened a kid for his lunch money or his desert Twinkie, but now it is being defined as armed robbery whenever a Pop Tart gun is used.

  10. I would take the position that everyone should be equal.
    While performing their duties, if the police are not charged for shooting (in self defense) a child or adult that points a toy gun, tv remote control, fork…etc in their direction, the regular peasantry should be treated with the same consideration when deadly force is used in their own self defense as well.

    As to the question, no they shouldn’t bring the same penalties. Nobody should spend 10 years in prison for taking a toy gun into a GFZ

  11. The downside for the perp, of course, is that a person who can’t tell if their attacker’s gun is fake would be justified in assuming that the gun is real and loaded, thus increasing the chance of the bad guy catching some lead.

    I’m okay with this, provided that “I thought it was real” is a valid defense.

    Should we make the penalties for using a toy gun as severe as they are for the real thing?

    ….and eliminate the incentive to use a toy gun, which increases the chance of injury to the victim?

    Nah.

    • I’m okay with this, provided that “I thought it was real” is a valid defense.

      If the belief is reasonable, then “I thought it was real” is a valid defense. The belief might not be reasonable if the gun looked like a colorful water pistol or a Pop Tart.

  12. Hmmm. How about increasing the penalties of robberies conducted without real guns (fakes or nothing at all), to match penalties with a real gun.

    Then put in safeguards such that a criminal carrying and wielding anything intended to look like a gun who gets shot during the robbery, can’t sue the people who shot him.

    Call it Saddam’s Law – if you try to convince people you’re dangerous, you have no right to be upset or surprised when they react accordingly.

  13. Why should there be any difference in penalty between an assault/robbery with a gun or without, toy or otherwise?

    • I am with you. I never really understood why many laws vary depending on the tools the criminal uses. Shouldn’t it boil down to the damage and cost to the victims? And now even the identity of the victim is creeping into the law.

  14. This discussion might also bring up the same question concerning a robber who hands a note to a clerk, stating that he has a gun, but no gun is shown.

    The poor clerk might be the type of person who scares very easily, and may have a heart attack on the spot!

    Even if a gun is not real, or no gun is shown, If the intent is the same as if the assailant had a gun, and puts this thought into the mind of a victim, there should be no leniency.

    Is the criminal any less guilty when he robs you, just because his gun was not real?

  15. The easy solution as far as I see it is to take the middle road. After the fact, when you have evidence about the weapon being real or not, you can make the decision to treat it as an additional charge, similar to making a threat that you have no capability of carrying out. Mostly the issue is intent. The robber intended to alarm the victim by implying the presence of a real deadly weapon. There’s no reason you can’t treat that as an additional charge. It would NOT imply that a victim has a responsibility to determine if a gun is real or not before using deadly force (except in an obvious case of someone using a red/yellow squirt gun, for example) because there wouldn’t be a reliable way to determine that. Not that an overzealous prosecutor couldn’t try.

  16. Apropos of nothing, I went through Connecticut yesterday and there are signs hanging all over the place that state: “Connecticut. Still Revolutionary.” Is that a giant joke or a sign of things to come?

    • It is a “new” ad campaign promoting CT tourism that’s been going for a year or two. And regardless of what the governor thinks, everybody else in the state very much thinks it’s a joke.

      • Ahh. I didn’t know that it’s been around a while. It’s almost like a middle finger from their Dept. of Tourism or whatever. I was tempted to deface that sign in some hilarious fashion.

  17. “Should Toy Guns Bring the Same Penalties as Real Guns?’

    No. It would lead to needlessly banning toy guns.

  18. in Alabama, as long as the victim “reasonably believes” that the robber is armed with a weapon, it doesn’t matter if it’s a magic marker in a pocket; it’s still Robbery 1st Degree.
    In AL, deadly force can be used by the victim in any degree of robbery (even third degree, which is unarmed,,but by force or threat of force).
    Good law.
    If you make toys an exception, I’ll guarantee every robber will produce the toy gun he used at trial. (Which his family bought at WalMart that morning.).

  19. Robber uses toy gun, innocent folks don’t get shot. Good guy sees toy gun, shoots robber.

    Assuming there is no legal penalty for the good guy and it’s treated as a legitimate DGU I’m not seeing the downside.

  20. “Question of the Day: Should Toy Guns Bring the Same Penalties as Real Guns?”

    This is an incomplete question because it’s missing context and usage of said tools.

    The article then delves into scenarios of armed robbery which gives us the context to the question. Well yes, regardless of the tool used, if you’re committing a robbery or have the intent to do so, you should be charged for the full extent of the law for the crime you were committing regardless of what tool you were using. It could be your finger in your pocket for all I care, a robbery is a robbery. It’s still a crime. Doesn’t matter if you were using a toy gun or a real gun to initiate the robbery.

    As far as playing with toy guns on the street, well that’s a matter of common sense and upbringing. Depends on the “style” of toy gun being used. I certainly would recommend that children play with “realistic” guns on the street as that is liable to get the police called on them and potentially shot.

    Thirty years ago, you would be relatively safe playing on the street with toy guns (if you were a child anyway). No police officer would question a child holding a “gun” because they would assume it was fake, even if it looked fairly realistic. I had a host of “realistic” toy guns growing up overseas and never had a problem. Fast forward 30 years and X amount of school shootings by insane people of various age, that’s no longer the case — particularly in America.

    I certainly wouldn’t recommend that any child play with toy guns on the street unless they were fluorescent colored or obviously toys (ie. nerf guns, etc.).

  21. setting aside the ridiculousness of gun free zones for a moment and just responding to the question given the state of things as they are now, a toy gun does not pose a credible threat to anyone’s life or safety, so simply bringing a toy gun into one should not be a crime. however, actually attempting to commit a crime with one is different. i think it is pretty irresponsible to place the burden of differentiating between toy gun and real gun on the potential victim of a crime.

    using the example of robbery, in Texas, if a person intentionally or knowingly threatens or causes me fear of bodily injury or death, i am legally justified to use deadly force to stop them. at least, that is my understanding. pointing a toy gun at a person and making demands of them seems to me to be a very intentional threat of bodily injury or death. i think the implement used is of far less importance than the intention communicated.

    all this being said, im not a lawyer or legal expert, and i would surely appreciate corrections if necessary.

  22. Fake guns should not be treated like deadly weapons, whether it’s in the criminal code or school policy. Pretending to endanger someone’s life is not the same as endangering someone’s life.

    Self-defense laws are based on whether the self-defender “reasonably believed” he was in imminent danger. If someone threatens you with a gun (real or fake) and you shoot him, it’s your responsibility to convince the authorities that your fear for your life was reasonable.

    This is not a slippery slope. The burden of proof in a self-defense case has always been on the self-defender.

    • That’s right, Paul.
      When you knowingly and willfully endanger someone’s life by pointing an honest-to-god gun at them, you display a wanton disregard for human life that makes you much worse than a common thief.

      Robberies that involve merely the threat, “I have a gun. Give me the cash,” are certainly serious felonies that demand stiff penalties. But when you knowingly endanger human life you are a different kind of criminal.

  23. Nope. For the obvious reason you stated, of course, but beyond that, penalties for using toy guns in crimes will cause stupid people to equate “toy gun” with “dangerous firearms”. My greatest passions in life are video games, shooting (firearms), and the sport of airsoft. Beyond making idiots afraid of airsoft guns (or I should say even more idiots, life those thieving customs officials a few years ago who seized a shipment of high end airsoft guns from Taiwan claiming that they could be modified to be fully automatic firearms with “minimal effort”), it’s a slippery slope. How long until replicas are restricted as well? Or they pull a Germany, and ban all fully-automatic airsoft guns?

    Not to mention that schools already blow a damn gasket when someone bites a pop-tart into a gun, and a criminalization of the use of toy guns would only legitimize their reactions. After all, “it wouldn’t be banned/restricted if it wasn’t dangerous!”

  24. Doesn’t the statute for robbery state “use of force or threat of force to compel another to hand over property” or something to that effect? Doesn’t seem like the weapon itself matters much, as long as the threat was there. At least in Maine, I believe using a classic finger gun hidden in the pocket of your hoody will get you the same sentence as pointing a functioning gun.

    • Most states have a category of “aggravated robbery” which like aggravated assault, or assault with a deadly weapon, is elevated in some cases. They are still guilty of robbery (please read the law people), but the enhanced penalty doesn’t apply

      28-324. Robbery; penalty.

      (1) A person commits robbery if, with the intent to steal, he forcibly and by violence, or by putting in fear, takes from the person of another any money or personal property of any value whatever.

      (2) Robbery is a Class II felony.

      In fact, in Nebraska law this has nothing to do with robbery. He is guilty of robbery, fine. It is a distinct offense to possess a deadly weapon while committing a felony

      28-1205. Use of a deadly weapon to commit a felony; possession of a deadly weapon during the commission of a felony; penalty; separate and distinct offense; proof of possession.

      (1)(a) Any person who uses a firearm, a knife, brass or iron knuckles, or any other deadly weapon to commit any felony which may be prosecuted in a court of this state commits the offense of use of a deadly weapon to commit a felony.

      (b) Use of a deadly weapon, other than a firearm, to commit a felony is a Class II felony.

      (c) Use of a deadly weapon, which is a firearm, to commit a felony is a Class IC felony.

      (2)(a) Any person who possesses a firearm, a knife, brass or iron knuckles, or a destructive device during the commission of any felony which may be prosecuted in a court of this state commits the offense of possession of a deadly weapon during the commission of a felony.

      (b) Possession of a deadly weapon, other than a firearm, during the commission of a felony is a Class III felony.

      (c) Possession of a deadly weapon, which is a firearm, during the commission of a felony is a Class II felony.

      (3) The crimes defined in this section shall be treated as separate and distinct offenses from the felony being committed, and sentences imposed under this section shall be consecutive to any other sentence imposed.

      (4) Possession of a deadly weapon may be proved through evidence demonstrating either actual or constructive possession of a firearm, a knife, brass or iron knuckles, or a destructive device during, immediately prior to, or immediately after the commission of a felony.

      (5) For purposes of this section:

      (a) Destructive device has the same meaning as in section 28-1213; and

      (b) Use of a deadly weapon includes the discharge, employment, or visible display of any part of a firearm, a knife, brass or iron knuckles, any other deadly weapon, or a destructive device during, immediately prior to, or immediately after the commission of a felony or communication to another indicating the presence of a firearm, a knife, brass or iron knuckles, any other deadly weapon, or a destructive device during, immediately prior to, or immediately after the commission of a felony, regardless of whether such firearm, knife, brass or iron knuckles, deadly weapon, or destructive device was discharged, actively employed, or displayed.

  25. Semantics…the penalty for robbery should be X regardless of method or intent. Steal meat from store or brandishing a gun for coin. More evidence legislators are trolling for business and the judicial is accommodating.

  26. Not a well formed question: my first instinct was yes, none! But see I live in Marylandstan where just about everything surrounding guns is criminalized.

    Oh, you mean for armed robbery? Of course. I think incentives work and we should incentivize failed robberies. Knives and toys, same penalty.

    I tend to discount studies of siezed weapons. Robberies with functional weapons are likely more successful, so there’s a selection bias. And, you can’t have a database of successful robberies, by definition. If you catch them days later you have the word of a soon to be convicted criminal dumb enough to put the wrong ammo in, in the first place.

  27. I am frightened by people bringing up self-defense here. That has NOTHING to do with it. You are not punishing anyone in such a case, and what matters there is the reasonableness of your belief.

    When, after the fact, the perp was found to be using a toy gun, that supports a mitigating claim, namely that while he is certainly guilty of threatening violence (and hence merits punishment), he had a clear intention not to use violence, and that has colorable support.

    The court of law and the penal system is operated on a different standard. Self-defense does not deal with categories of guilt and innocence. Merely reasonable action in response to what reasonably believes to be his situation.

  28. Armed robbery is a very serious crime. If you choose to approximate it with a fake gun, then we’re going to assist you by replicating the consequences and charging you as if you’d used an actual firearm. Criminals think they’re being cutesy and clever by using fake or inoperable real guns. Well.

    When you initiate a robbery which others are reasonably expected to interpret as an armed robbery, then you’re setting a whole host of potential actions in motion, same as if you’d used a real gun. Those potential consequences include you getting shot, bystanders getting shot by a cop, clerk or customer, someone having a heart attack, responding cops getting into a vehicle accident, other emergencies being delayed in response this “armed” robbery is addressed, and so forth.

    It is you having disturbed the peace, with whatever implement, that drives up the probabilities of all of these negative outcomes. You shouldn’t get away with that offense because the gun was fake.

    For those of you declaring you’d at least prefer robbers to use toy guns, so that at least the reality is nobody would get shot, you’re wrong. The opposite would happen and such a difference in penalties would actually encourage the use of real guns and increase the chance of someone getting shot.

    You see, allowing this two tiered punishment would impose a duty on the prosecution to prove that a weapon was real or loaded. That may be impossible from grainy store video and and shaky eyewitness accounts from those unfamiliar with guns. Those who *do* use real guns, therefore, would figure they could commit armed robbery and, even if caught, get away with the lighter sentence. Essentially, you’re reducing the perceived price of the action, which would encourage greater engagement in it. Once you’re inadvertently promoting authentic armed robbery through loophole lighter sentences, then the inevitable shots fired, deaths and injuries that go along with armed robbery will increase.

    It’s the law of unintended consequences, my friends, and it cannot be repealed.

    • ok, this is a good point: Every defendant will claim innocence and the prosecutor will have to prove the gun was real.

      However, isn’t this a problem in general? Doesn’t a good ski mask and a grainy video hinder the prosecution from proving the identity of the robber, let alone whether the gun was real? What if I rob you and there is no video? Or the weapon is not visible on the video?

      Seems to me we already have a tiered system with plea bargaining – shaky eyewitness testimony and grainy video might mean its hard to prove its you. If your buddy pleads, and rolls on you, they get a better deal, and maybe some corroborating evidence like where the actual gun and ammo is.

      I mean you do have a point. But sometimes juries are unwilling to convict because a lesser charge is not included. So, instead they acquit. I don’t like when people are convicted of lesser charges when I thought greater charges were deserved. But, I hate when people go free. I’d rather a jury send a guy to prison for robbery with a toy gun than acquit on robbery altogether because hey, it was a toy, just a joke dude!

  29. Many “fake” guns look only too real, down to weight,fit & finish. If you rob people be prepared for real consequences. Like getting your dumbass shot. Yeah I remember being a kid 50years ago & having extremely realistic toys. That time was “long ago & far away”.

  30. NOPE. I agree with the sentiment that I’d rather the criminal element only have fake or otherwise non-functional guns, or any weapon for that matter.

    What would be interesting to see is whether or not a punk trying to use a fake gun to commit a crime getting shot still being a justifiable homicide. Even with that orange tip on the front, assuming our enterprising thug hadn’t either yanked it off or simply painted over it, it could easily be missed during the Mother of All Adrenaline Dumps.

    • Depending on the gun and caliber, some may be able to fire even when loaded with the wrong ammunition. Some may be able to be loaded incorrectly and not fire a bullet, but the cartridge itself could be fired within the firearm and cause serious injury.

      Others handguns may seem to be broken, and in fact they do have some malfunctioning component, but they may still be able to fire. How about an old revolver with a worn or poorly adjusted firing pin? You may get light strike after light strike without firing and conclude that the handgun is “broken.” However, if you get the right cartridge in the cylinder, combined with a robber’s twitchy trigger finger, and it could well fire and kill someone.

      So I reject the entire “it’s a real gun, but……” ex use, too. It’s all armed robbery and you’re going down hard for it, in Texas, at least.

  31. I agree that we shouldn’t apply harsher charges for some urchin commiting a crime with a fake gun. I however do believe they should get some form of punishment for using a BB/ Pellet/ Airsoft gun. Because ya know, could shoot an eye out.

  32. The fake gun or weapon in a robbery should have the same penalty as the victim would not know the difference. When a gun is stuck in your ribs you don’t have the luxury to check to see if it is a high point, a revolver, a be pistol, or a short piece of pipe. The same with the finger in the pocket “I got a gun” style robberies.

    I took a robbery call a few years back where a Crossman BB pistol was used. The vic swore it a Smith 5900 series…. we didn’t know it was a BB gun until we recovered it.

  33. My head hurt before I read the title, and I was prepared to lie down in a dark room after clicking on it, but it’s actually a good question in that context. I’m really sitting on the fence. On one hand, I’d rather be held up by some punk with a toy gun and have him face less charges if arrested, (If I haven’t slotted him by then), than someone with a real gun. But if they’re discouraged from using firearms altogether, I know I have a better chance of living.

  34. I haven’t read any other comments so what I have to say lay have been staid already. But I believe it should be treated the same as a real gun because say someone is being robbed and they shoot at the bad guy for fear of thei lives and accidentally hit a bystander.

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