Chief Jay Varney’s statement about the incident was exactly the type of statement that demonstrates his qualifications as a leader:
“If you saw someone holding it, you wouldn’t have any idea whether it was real or not, unless you were standing real close. It appeared to be a real gun, and she would not listen to the officers demanding that she drop the weapon.”
Eight days retired
It is nearly impossible in most situations for an officer to fully view a replica firearm, let alone a partially obscured one in low light, and determine if it is the real thing. Dan Gray, a retired police sergeant and primary instructor at Trident Firearms Academy (actually my retired sergeant and my former shift supervisor) shared a story about his armed encounter after being retired only eight days.
Dan was walking back to his hotel in Santa Ana, Calif. from dinner a half-block away. It was 2115 hours and, true to form, he was operating in Condition Yellow. He passed a man talking on a cell phone wearing business casual, evidently talking business.
From the bushes nearby two men stepped out, one with his hand on the butt of a gun in his armpit. They were wearing the usual uniforms for this type of profession: hoodies and bandannas. While looking at the gun, Dan told me he was thinking “Wow, that’s a Beretta Cougar,” for a short moment. Dan Gray gave up his wallet (which was a dummy wallet—not the one with a badge and credentials).
When the bad guys demanded his cell phone, Dan maneuvered himself between Guy-with-the-gun and Guy-without-the-gun. The latter got Dan’s cell phone, smashed decisively in his face. All my verbal harassment to try to get Dan to switch to a smartphone ended the moment after someone else’s DNA adorned his flip phone. Both now faced The Real Gun, business end first.
Dan told me that when he drew his real gun, the fake gun suspect’s arm was already in motion to jettison his replica bullet magnet, which flew to the ground. Dan got the attention of Business Casual, who dialed 911. Dan held the suspects at gunpoint, now arguably two of the luckiest criminals in the world.
Since there are a half dozen morals to this story (Operate in Condition Yellow, always carry a gun, flip phones work well on cartilage, one wallet for LE creds, the other for credit cards, and many more), I have deliberately left out a great bit of detail, especially the part about the first arriving unit flying rotary wing and illuminating the entire scene.
To get back to the point of this story: Dan didn’t suspect it was a replica gun until the suspect was willing to dump it when facing a real one, which could have been post-shooting. He didn’t confirm it was a replica gun until he saw it up close.
Dan is a firearms instructor with over 30 years of experience. He teaches hundreds of law enforcement and civilian students annually and has seen more guns in more configurations than most of us. He cannot distinguish a real one from a fake one at contact difference, simply because they were not designed to be distinguished from one another.
In most states, owning a replica firearm is perfectly legal, but brandishing is a crime. In NYC, possessing an Airsoft gun is a crime without a firearms license, unless it is brightly painted or clear, which actually makes it a greater liability for officers. This actually originates in federal law, by the way. Consider this: What if officers lowered their muzzles every time they saw a brightly painted muzzle? Any guesses who will begin painting their muzzles? Secondly, if owning a toy is illegal to a civilian and they were knowingly transporting it in their possession, wouldn’t they be inclined to run, fight, act suspiciously if they had one, and therefore the law itself places the public in danger? This will make sense when one reviews some of the subjective arguments against the 3 Strikes law in California.