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Criminals tend to be optimists, at least when it comes to carrying out their crimes. They often envision only one scenario, and assume that everything will always go as planned. It’s one of the reasons that many criminals depend on imitation, toy, or replica firearms. They never expect to actually have to use one. Plus their cheap and easy to get. A number of states treat the use of a replica or imitation gun the same as the use of a real gun in a crime. No state requires a victim to determine if a gun pointed at them is real or imitation. If the defender reasonably believes that they are under deadly threat, it doesn’t matter if the perpetrator was using a real gun or a fake one.

Some Texas police officers believe that the use of imitation guns for criminal purposes is on the rise. From

DALLAS (AP) — Police in Texas say more crimes are being committed with imitation weapons such as BB guns, likely because they’re cheap, easy to obtain and criminals may believe — mistakenly — that if they’re caught, they’ll avoid the severe punishment that can come with illegally possessing a real one.

California law differentiates between real and imitation guns in their laws on brandishing. From

  1. Brandishing  a  pistol, revolver, or other firearm capable of being concealed upon the person… in a rude, angry, or threatening manner… in a public place:
    • a minimum three (3) month, to a maximum one (1) year, jail sentence, and/or
    • a maximum $1,000 fine.92
  1. Brandishing any other firearm… or brandishing a firearm in other than a public place… in the same manner:  not less than three (3) months in county jail.93
  2. Brandishing an imitation firearm: not less than 30 days in county jail.94

Should the use of imitation firearms in crimes be subject to the same penalties as real firearms? I submit that penalties for the use of imitation firearms in crime should be less. The criminal is putting the victim(s) at lower risk, while putting themselves at higher risk. This is behavior that should be encouraged.

It’s good public policy to reward this behavior with lower penalties, just as non-confrontational crimes carry lower penaties than crimes that occur in direct confrontation, such as robbery. I would prefer to confront a robber armed with an imitation gun instead of a real one. And I’d rather confront a robber with an imitation gun than a knife or club.

Of course, many criminals are ignorant of the law, so incentives don’t always have a significant effect. In this case, the law would reinforce an existing belief, so the chance of success is greater.

Replace criminals’ guns with fakes? We should encourage this trend.

©2016 by Dean Weingarten: Permission to share is granted when this notice and link are included.
Gun Watch

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  1. In Texas if you use a fake gun, you’re gonna get killed by a real gun. There’s your sign……

  2. Real gun, fake gun, at the end of the day the good guys will shoot their stupid asses all the same.

    • This all assumes that the criminal will confront a “victim” who is armed. Since there (not their) are only about 12 million “permission slips” in America and well over 300 million Americans the odds are still in the favor of the criminals and so to encourage them to attempt their crimes with an imitation firearm they can purchase almost anywhere seems counter-productive.

      • There (not they’re) is more upside than just confrontations with armed citizens. The chance of a negligent discharge is eliminated. The chance of a purposeful discharge is eliminated.
        You seem to imply that due to the ease in which they can obtain imitation guns will increase the number of robbery attempts. That variable already exists so reducing penalties for such a crime won’t, can’t make things worse for the good people.

  3. “My gun has desert eagle point five oh written on the side and yours has replica on it….”

  4. Need to better define what is a “fake” gun. Some pneumatic pistols can push a .22 lead pellet down range at up to 1000 fps. And at the Federal level and in some states, because pneumatic weapons are not firearms, convicted felons who possess and use them for lawful purposes are totally legal.

  5. Totally disagree with the premise of the article.

    Having a “gun” (whether real or fake) changes the dynamics of the situation and drastically raises the stakes. A girl who might fight and even get away from a wannabe rapist with a knife, might not fight back if a (real or fake) gun is put to her forehead. An armed defender who might walk away from a thug with brass knuckles, may have to raise the stakes to a fatal confrontation if confronted with a (potentially) fake gun. A robber with a baseball bat might be subdued by a customer behind him; a robber with a gun (fake or not) will much more likely succeed, and may also rob the other customers, and may also do something worse, since he has “the power”.

    If one of those bastards pulls a gun out (real or fake), they should be treated as if it’s real by the victim, and they should be treated as if it’s real by the law. Use a gun to commit a crime, go to jail for the rest of your life. Doesn’t matter if it was real or fake, because the victims don’t know, and that changes everything.

    • And that’s the law at least in Michigan. It it looks like a gun, it’s treated like a gun in criminal court.

    • Agree 100%. It is about what the criminal did to the victim. If the victim, being a reasonable person, believed that the criminal had a gun, it is a gun.

    • The pragmatic argument here is that if the penalty is the same for real gun vs fake gun, criminals will use real guns more – and it does put the victim at more risk (even if they are not aware of it).

      It’s kinda like why death penalty for kidnapping is not the best idea – if the penalty is the same as for murder, there’s no incentive for the kidnapper to keep the victim alive.

      • Maybe we are looking at the question in two different ways. Let me explain. Assault is the threat of violence. Battery is the making contact. So, a charge of assault and battery is threatening violence and taking action on that threat. Aggravated Assault is a threat to cause serious injury or death. So, use a fake gum, it is still aggravated assault. Of course, the judge may be lenient if a fake gun is used.

  6. The argument for a lesser penalty is silly. The reasons are:
    1. The criminal’s intent is the same -to inspire fear.
    2. A reasonable person under threat of harm would not know the gun was a replica.

    In fact, instead of harassing the law-abiding, were I king I would mandate that using either a lethal weapon or replica to commit a felony would require on conviction that the sentences run consequetively.

    Keeping perps like this off the street is better for public safety than encouraging them to be clever.

    • And that’s the law in Michigan. Possession of a firearm during the commission of a felony is a mandatory 2 year sentence consecutive to the underlying felony . And possession of a pneumatic weapon used in the commission of a felony is also a consecutive mandatory sentence. Second offense is 5 years and third or subsequent is 10. And this time must be done before any other sentence begins to run

      • Yes, but how often are these “mandatory” sentences actually applied? And how often are they only used as plea bargain fodder as in “We’ll drop the weapons charge if you plead guilty on this other offense rather than forcing us to take this to trial”?

      • how do we even get to “third offense”?? if that happens, clearly the penalties are not severe enough.

    • In Texas, if you use a “deadly weapon” in the course of a felony the crime is upgraded to “aggravated” and you face much greater penalties. It sounds like these criminals are trying to leaving wiggle room for a defense attorney to argue a toy gun is not a deadly weapon. Despite what the police in the article said, Texas case law seems to have gone both ways on what is a deadly weapon so I suppose it’s not completely ridiculous strategy. This only helps if the criminal actually makes it to the trial, though.

  7. I think it should be encouraged.
    I don’t think it should be rewarded.
    Especially by reduced penalties.

  8. Try it in some states or municipalities and see how it goes. Trying different things in different places still seems like a good idea to me.

  9. Of course. In fact I think we should give out free fake guns in communities with high criminal populations. And, as we do that, we should also encourage neighboring, law abiding communities, to arm themselves with real guns.

  10. What if they bite a poptart into the shape of a gun and use that on a teacher, since teachers don’t appear to know the difference?

  11. Encourage the thugs to use fake guns, that way we can cull the herd with fewer worries about return fire.

    • Gang bangers, who appear to be responsible for the majority of actual homicides in this country, are unlikely to switch to imitation guns. The only people who would be affected by this are petty criminals who are sticking up convenience stores or mugging people to get a little cash to buy more drugs from those same gang bangers.

      No need to encourage additional stupid behavior by making the tools cheaper and easier to acquire. As commented above, criminals with fake guns, when not opposed by citizens with real guns, are much more likely to succeed than those some idiots with knives or bludgeons or just fists and bravado.

  12. Replace criminals’ guns with fakes? We should encourage this trend.
    I think a criminal armed with a Star Trek Phaser Rifle would be terrifying.
    Even more awesome would be a criminal armed with a Star Wars Light Saber.
    Nobody would ever know it was not the real thing.

  13. What a silly headline…
    No, criminals should not be encouraged to use fake guns. They should be encouraged to not be criminals. Counselling if it works, hot lead treatments if it doesn’t….

  14. I would rate this question as “tough”.

    On the one hand there is a certain logic to the idea that a criminal who’s encouraged to try to rob people with a starter pistol can’t shoot them and therefore the risk to the victim is decreased while the risk to the criminal is increased if the citizen has their own gun that’s real.

    However I think there may be a larger issue here dealing with race. We’ve already seen the outrage a minority with a fake gun getting killed can cause among that community where they reason that the CCW holder/store owner/cop should have know it was fake. Is that sort of faulty logic something we want to encourage in minority communities by encouraging minority criminals to get shot while wielding fake firearms?

    It strikes me that given the current racial tensions in this country the last thing we want is a string of people shot while using fake guns that other members of the criminal’s community will reason the defensive shooter should have known was fake and not used a real gun to respond to. It just sounds to me like a great way to agitate people in an already explosive situation and spark even more race problems that could lead to race riots or worse.

    • “…..given the current racial tensions in this country the last thing we want is a string of people shot while using fake guns…..”?

      Got “White Guilt”?

      Don’t be a cuck, those illiterate, dysfunctional. parasites will complain no matter who “makes good” their genetically deficient offspring.

      • I have no white guilt whatsoever. I merely believe that public policy shouldn’t invite more tension between various segments of the population. Divide, rile up and send off in X direction is what the Left does.

        Also, when you use the term “cuck” you look like an ass.

        • The only “ass” is the “cuck” who thinks in “racial” terms.

          You are now officially a member of Obama’s “community” and I bet like his grandmother you clutch your purse tightly and cross the street every time you see a gaggle of teenage black youth headed your way.

  15. Unbelievable that it even matters. Criminals should not have their friggin 2A rights infringed by the friggin fascist nanny state.

  16. “Should Criminals be Encouraged to Use Fake Guns?”

    Really? Do you really have to ask?

    Of course criminals should be encouraged to use “fake firearms” in the commission of a crime it’s a “win-win” for everyone. By employing “imitation firearms” when committing crimes more criminals will be wounded or killed and fewer innocents will be killed or wounded it’s that simple.

    Th-Th-Th-THAT’S ALL Folks!

  17. “Plus their cheap and easy to get”
    Should be
    “Plus they are cheap and easy to get”

  18. I am fine with giving them a break when a fake gun is used to commit a crime. That is because they won’t be able to shoot back, but shooting them will still likely qualify as a legal use of lethal force in self defense. Unless they still have the orange tip on their fake gun.

  19. My problem with your premise is that the media already puts the “good guys” on the defensive when a criminal uses a fake gun and loses their life for it. Reducing the penalty just because it was a fake gun and not a real one capitulates to what’s “popular” and not what’s right. So now you’ve got criminals more likely to use fake guns. And fake gun carrying perps start getting shot in greater numbers because there are more of them and less of criminals with real ones. How do you think the media’s gonna spin that? You start getting more Tamir Rices. They break into a home with airsoft ARs, the owner defends themselves and now you’ve got a “dead kid who just made a stupid decision and didn’t mean any harm,” and they lambast the homeowner for overreacting.

    No. No good can come of it. If you want people to think you’ve got a legit firearm in the course of committing a crime, you get to suffer the full weight of the law as if you had actually carried a real firearm.

  20. Of course, there are other ways in which fake and real guns carry the same risks. Case in point: a couple decades ago, the Reverend Accelyne Williams had his Boston apartment SWATted by mistake (wrong address). No shots were fired, but Williams is just as dead — he had a heart attack and died of fright. Fake gun, real gun, doesn’t matter — real panic, real death.

  21. Yes, and the law already discriminates by type of weapon, in many cases. Maybe it should not, but it does. There are enhanced penalties for using firearms.
    At The Law Offices of Raoul Severo, our criminal defense lawyers are committed to ensuring that our clients’ constitutional rights are protected.

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