A gun isn’t a toy, except when it is. And when it is, sometimes it’s hard to tell that it isn’t. And when you can’t tell that it isn’t, you naturally assume that it is. And when you’re a cop who assumes that it is, you tend to respond by drawing your own gun and firing it. That’s how a fake gun can lead to people getting real hurt—or real dead.
On Jan. 10, a Los Angeles police officer shot 15-year-old Jamar Nicholson in the back after mistakenly assuming that the toy gun with which the boy and his friends were playing was real. Nicholson lived, and in the aftermath of the shooting, Los Angeles Police Department Chief Charlie Beck rested the blame neither on the teenage victim or his own officers, but on the toy-gun industry. The problem wasn’t that the officer shot too soon, but that the fake gun looked too real. The solution, Beck argued, is for manufacturers to take steps to make these guns look less real. “How about not configuring them to have the exact dimensions and machining as a real gun?” Beck told the Los Angeles Times on Thursday.
Beck believes that fake guns too closely resemble real ones, a safety hazard that imperils officers and civilians alike. Why? Well, a police officer approaching someone holding a gun can’t be expected to presume the gun is a replica. That’s why the officer may respond by firing.
This sort of thing doesn’t happen often, but it still happens too often. It happened in Cleveland last year, when a rookie cop shot and killed 12-year-old Tamir Rice after mistaking the boy’s nonlethal Airsoft gun—a modern take on the classic BB gun—for a real one. It happened in Santa Rosa, California, in October 2013, when a sheriff’s deputy shot and killed 13-year-old Andy Lopez after mistakenly assuming that Lopez’s replica AK-47 rifle was real. The deputy claimed he had acted in self-defense, and the Sonoma County district attorney agreed. When this happens, the aftermath is usually the same: The shootings are deemed tragic but unavoidable, and the officers are absolved.
It’s worth acknowledging that Beck has a good point about toy weapons. Legislators have tried to address it by passing laws that make it easy to distinguish real guns from fake ones, but their solutions have been imperfect. Since 1989, federal law has required toy guns to have bright orange caps at the tips of their barrels. But the caps are easily removed. And even when the caps remain, they can be easy to miss: The orange cap was still affixed to the fake gun that precipitated the Nicholson shooting. In 2014, California passed a state law mandating that all fake guns sold in the state come in bright, nonmenacing colors. Sen. Barbara Boxer has introduced a similar bill into the U.S. Senate. But real guns can come in gaudy colors, too, and, anyway, you can paint over the fake guns.
So, yes, it can be hard to tell a fake gun from a real one. And, yes, it’s good to have laws that make it easier for police officers to immediately distinguish replica guns from real ones. But that doesn’t mean that the police are blameless in situations like these. Beck has good reason to criticize the fake-gun industry, not least because doing so helps deflect criticism of his own officers. LAPD officials claim that the officers issued multiple orders to drop the gun before opening fire. Nicholson, his friend, and another witness dispute this, saying that the officer fired immediately after yelling “Freeze.”
Whatever actually happened, the police establishment is defending the officer’s decision to shoot. “We train these officers to make split-second, life-or-death decisions,” the president of the Los Angeles Police Commission told the Times. “When they have a gun pointed at them, there is no time to think, ‘Is that real or a toy? Is the guy 15 or is he 25?’ ”
Is this right? What can we reasonably expect from police officers in the heat of the moment? What sorts of calculations can they be expected to make? If you’re a cop, and if someone is pointing a gun at you, then it’s only prudent to assume that the gun is real, absent definitive evidence to the contrary. But what if the suspect isn’t pointing a gun at you? Jamar Nicholson was shot in the back. He wasn’t even holding the fake gun. Tamir Rice wasn’t pointing a gun at Officer Timothy Loehmann when Loehmann shot and killed him last November within seconds of arriving on the scene. Loehmann had previously washed out of the Independence, Ohio, police department thanks to “a pattern of a lack of maturity, indiscretion, and not following instructions.” Andy Lopez was turning toward Deputy Erick Gelhaus when Gelhaus shot him seven times in October 2013. Two months earlier, according to the San Francisco Chronicle, Gelhaus allegedly pulled a gun on a motorist during a routine traffic stop; the incident “troubled the driver so much that he recalled asking Gelhaus at one point, ‘Sir, is there something wrong with you?’ ”
The bill that Boxer introduced earlier this year would require replica guns to be either brightly colored or transparent. But reforms shouldn’t end there. The LAPD hasn’t released any background information on the officer who shot Jamar Nicholson. It should. Police departments should make public the employment and disciplinary histories of officers involved in fake-gun shootings so that we can see what, if anything, these officers and incidents have in common. Are these officers identifying themselves as such when they arrive on the scene? What sort of training have they had in how to evaluate and respond to potentially dangerous situations? How long have they been on the force? Should they have been hired at all? Departments could then perhaps use that data to identify flaws in their hiring practices or training procedures.
Fake guns that look real are a problem. But the “shoot first, ask questions later” mentality is a problem, too. “Cops have no choice but to shoot” is an inadequate defense, one that discourages actual examination of these sorts of incidents and why they happen. If there’s anybody who should be able to exercise discretion in the moment, it’s a police officer.