Air pistol owners,if caught, can face prison or walk free
Air pistol owners,if caught, can face prison or walk free
Thursday, October 19, 2006
By KIBRET MARKOS
Sitting in a car with a friend, Michael Morris aimed his gun at a pedestrian and pulled the trigger, authorities said.
The woman walking down the West New York street was unaware she was shot at. Morris, 19, of Fairview, was not aware that a police officer was nearby.
He was arrested and later indicted on various charges – the most serious being possession of a firearm for an unlawful purpose. If convicted, he faces up to 10 years in prison, with a mandatory three-year minimum.
The weapon involved was no .357 Magnum or 9mm Beretta. Rather, it was a plastic air pistol that shoots plastic pellets the size of papaya seeds.
Adults can legally buy the guns for $20 to $75 online or at sporting goods stores without a firearms permit. Parents can buy them for their underage children.
Yet New Jersey law defines them as firearms. So, get caught with one and you could either walk away or be arrested and charged under the state's tough gun code, which mandates stiff prison terms for unlawful firearms possession.
"Clearly, there is a disparity here," said James Seplowitz, a Hackensack attorney whose firm has handled several cases involving pellet guns.
Local stores and online retailers display a host of "Softair" guns, which use a combination of a spring and compressed air to shoot the tiny pellets. Some are replicas of handguns, others of submachineguns, army assault rifles, shotguns and hunting rifles.
Often sold with a sticky-surfaced shooting board, they are designed exclusively for target practice, said Fred Brusco, an outdoors associate at The Sports Authority store at Garden State Plaza in Paramus.
"It's not for shooting each other like paintball," he said. "It's not for Russian roulette, not for hunting, not for self-defense. You can't carry these around in public, either – just in your basement, your garage or your back yard."
Softair guns are extremely popular with teenagers and young adults.
"They come here all the time, and we go over the safety rules with them and their parents," Brusco said. "Some are OK with it. Others think it's unsafe."
A warning label on the packaging requires sales clerks to check for identification to make sure buyers are at least 18. It warns users to wear eye protection and not to allow children to use the gun without adult supervision.
The label also warns users to avoid brandishing the guns in public and to "adhere to federal and state laws governing ownership and use of softair guns."
As a weapon that can fire a projectile "with sufficient force to injure a person," a softair gun meets the definition of a firearm under state law, said Peter Aseltine, spokesman for the state Attorney General's Office.
However, state, county and municipal governments cannot regulate or ban the sale of softair guns because federal law specifically prohibits them from doing so, Aseltine said.
The federal Bureau of Alcohol, Tobacco and Firearms doesn't classify air or spring guns as firearms because they don't have the essential parts of a firearm, such as a receiver or a frame, said ATF spokesman Andrew Lluberes.
A federal guideline also states specifically that a pellet gun, though "a dangerous weapon," is not a firearm.
Still, a buyer who walks out of a store in New Jersey with an air gun is technically carrying a firearm, under state law.
"Someone could be prosecuted if they were carrying these guns without a permit," Aseltine said. "But county prosecutors have discretion whether to prosecute or not."
Some county prosecutors say the best way to clarify the confusion is to treat air and spring guns like firearms.
"I consider them as dangerous as any other firearm," said Theodore J. Romankow, president of the County Prosecutors Association of New Jersey. "These weapons can be used in crimes, and the victims believe that they are actual handguns. They should be controlled by licensing."
For Bergen County Prosecutor John Molinelli, the decision to charge or not depends on the circumstances.
If an offender uses a softair gun in a robbery or assault, for instance, they would be charged with criminal weapons possession in addition to the robbery or assault charges, Molinelli said.
"But we might look at things differently if someone was carrying one of these guns in the trunk of their car to use it for purely recreational purposes," he said.
Passaic County Prosecutor James Avigliano agreed, saying that merely carrying pellet guns wouldn't be considered an offense. No such cases have so far emerged in Passaic County, he said.
"Unfortunately, what we see more often are cases involving real guns," he said.
Assistant Hudson County Prosecutor Debbie Simon said the weapons charges against Morris were justified. The gun used in the shooting – a Crosman Stinger P-30 – could cause serious injury, she said.
The U.S. Product Safety Commission reported that 21,056 pellet-gun injuries in 2005 required emergency-room treatment. That figure includes injuries sustained by the more powerful BB guns, some of which fire lead and metal pellets.
For 2002, the latest year for which death reports are nearly complete, the commission was aware of six deaths related to gas, air or spring-operated guns, said Patty Davis, of the commission's Office of Information and Public Affairs.
Authorities aren't sure whether the woman in West New York was actually struck.
"[She] might have been unaware that she was hit," said Simon, who is handling the case. "She was never located."
Morris declined to comment.
Hudson isn't the only New Jersey county taking a hard line on pellet guns.
Authorities in Monmouth County recently charged a 14-year-old boy with unlawful possession of a firearm after he brought a pellet gun to school and fired a shot that left a red welt on another student's chest. Two teenagers in Ocean County were charged with criminal weapons possession in February for shooting a sea gull with a pellet gun.
Other jurisdictions resolve such cases differently.
Anthony Campbell of Teaneck was arrested in May 2004 after police saw him walking around with a pellet gun tucked in his waistband.
Campbell, 21, was slapped with weapons charges and was later admitted into a six-month Pretrial intervention program – a form of probation available for first-time offenders. He completed the program last year, which means he will have no criminal record.
Paintball guns aren't considered firearms in New Jersey: The bullet has to be less than 0.375 inches in diameter for a gun to be considered a firearm, under state law. A state appellate court in 2000 supported that definition, adding that the bullets "dissolve on impact" and are "not designed to pierce the skin." Pellet guns are treated variously outside New Jersey.
Possession of air guns in New York City is a violation of the city's administrative code, punishable by a $50 fine and a maximum of 30 days in jail.
An 18-year-old Florida man who pleaded guilty last month to shooting six men in the face with a pellet gun is awaiting his sentence, which could be as long as 38 years in prison.
Seplowitz said that either the New Jersey Legislature must issue detailed guidelines on air guns, or the courts must make a ruling to clarify once and for all whether pellet guns are firearms.
"It's unfair to the public to leave this issue open-ended and have inconsistent prosecutions," he said.
Oh...for the love of..............liberal MORONS
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