By Christine Show
The Orlando Sentinel
ORANGE COUNTY, Fla. — When Orange County deputy sheriffs made arrests in the recent armed robbery of a Metro PCS cell-phone store, one of the two suspects knew he would avoid a harsh penalty.
The man told deputies they couldn't charge him with robbery with a firearm — a first-degree felony punishable by up to life in prison — because the weapon he used was actually a BB gun.
Under Florida law, so-called "hoax guns" — which include BB, soft-air, string and paint guns — aren't considered firearms. The loophole presents a challenge to law officials and an opportunity for criminals, who use the weapons to commit violent crimes, including robberies, carjackings and home invasions.
To Orange County Sheriff Kevin Beary, it makes no sense.
"There's no difference," Beary said. "A robbery is a robbery, and when you use devices like this, it ought to be a first-degree robbery."
Currently, criminals who use hoax guns can be charged with a third-degree felony, which carries a maximum penalty of five years in prison. The Sheriff's Office is pushing to change the law so criminals who use hoax guns in robberies, home invasions and carjackings will be treated the same as those who use real weapons.
Florida House Rep. William Snyder, R-Stuart, is sponsoring a bill that would change the language of the state's carjacking, robbery and home-invasion laws to include hoax guns. For example, the robbery statute would read: "If in the course of committing the robbery the offender carried a firearm, or hoax firearm, or other deadly weapon, then the robbery is a felony of the first degree."
If the Legislature gets behind the measure, the proposal could reach the governor's desk by May.
Snyder said the changes are needed because of the dangers to victims and to law-enforcement officials who are trained to take weapons threats seriously.
"The risk to the public is just as real if the gun is a toy. I don't really believe there needs to be a distinction," he said. "If somebody goes into a bank and produces a firearm, the element of fear is there."
Under his legislation, any fake gun would be considered a deadly weapon if it's used to commit a crime, Snyder said.
'A deadly force issue'
The guns use ammunition ranging from small white pellets that barely penetrate paper to BBs and paintballs that can leave welts on a person's body. They can look almost identical to real handguns and assault rifles.
Although they are toys, the weight and color of some hoax guns are so similar to the real thing that deputies have trouble distinguishing them from lethal firearms, said Frank Fabrizio, uniform patrol chief for the Sheriff's Office.
"If you have reason to believe that your life is in danger, you have the right to use deadly force," he said of the Sheriff's Office protocol for firing at a criminal suspect.
"I'm telling you right now, if you pointed a gun like this at a deputy sheriff, it is a deadly force issue."
In Seminole County, a Sheriff's Office SWAT-team member fatally shot a 15-year-old student at Milwee Middle School in January 2006 when the eighth-grader pulled out an air gun. The SWAT member was responding to a report of a gun on campus.
State-police organizations are in favor of the proposed legislation.
"For a person being robbed, for them it's not a replica, it's a real gun," said Florida Sheriff's Association lobbyist Frank Messersmith. "They go through the same stress and tension as someone who's a victim of a real gun."
Messersmith said the FSA supported similar legislation proposed in 2005 that never passed. The Florida Police Chiefs Association, which also supported the 2005 initiative, is in favor of laws meant to protect anyone who could be harmed during a potential crime, said Amy Mercer, the association's executive director.
"It protects the citizens, and it also protects the officers," she said of the proposed legislation.
Easy to buy and own
Orlando Police Department detectives noticed an increase in crimes being committed using fake guns because of the loophole, said spokeswoman Sgt. Barbara Jones.
"Fake guns are easy to buy and own," she said. "Unfortunately they are being used for a purpose that they were not designed to be used, and that is to victimize innocent people and place them in fear for their lives."
Such guns are available at a variety of local retail stores including Wal-Mart, flea markets and sporting-goods stores.
Al's Army Navy Store in Orlando carries about 30 to 50 different styles of air guns, said general manager Fred Meltzer. They are meant to be used for recreational activities, and anyone who abuses this intention should face serious consequences, Meltzer said.
"If a person is using an air gun and committing a crime, they should be charged the same way," he said. "I really would not want a criminal to buy my gun anyway."
The guns are regulated to have orange tips so they are easily identified as play guns, but owners typically paint the tips black to make them look real, Meltzer said. With painted guns, young people often play "gun wars" in parking lots, confusing officers who may think there is a real shooting, he said.
This is a problem Beary said his officers face as they patrol the streets.
"They think it's all in fun," Beary said of the teenagers. "What about a cop who thinks guns are going off and they pull up? They're going to be pulling down [their own weapons] on these teenagers with air soft guns."
The legislation is still in its infancy, but Beary and Fabrizio hope to send a strong message to criminals that they can't get away with committing serious crimes and avoiding serious charges.
"We're not asking for something unreasonable," Fabrizio said. "We're just trying to keep the violent felons in jail for longer periods of time."
Copyright 2008 Orlando Sentinel
Fla. police want stiffer penalties for hoax guns