SIOUX CITY, Iowa (AP) - It was just after 1 a.m. Dec. 15 when 18-year-old Devon Simons walked into the Kum & Go, pointed what appeared to be a black handgun at the clerk and demanded cigarettes and cash.
He left with 13 packs and nearly $1,000.
In under an hour, Sioux City Police officers apprehended Simons at another Kum & Go. Upon his capture, police found he had used a BB gun, not a real firearm, to hold up the clerk.
Simons was charged with second-degree robbery and sentenced to 10 years in prison in mid-March, the maximum charge and sentence for someone using a weapon not classified as “dangerous” to commit a robbery.
Police say they frequently encounter the use of “toy” weapons like BB guns and pellet guns by criminals, especially as the resemblance between them and real firearms grows.
But police say they would support stronger deterrents in the law against using them like real weapons. The worry is twofold: First, that people are using them to commit crimes, and second, that a situation could arise where, in self-defense, a civilian or a police officer would use shoot someone displaying one.
While it’s illegal to carry a real firearm in city limits without a concealed carry permit, Sioux City code does allow for the carry of lookalike “toy” weapons, such as a hand BB guns, provided they are not discharged. Police can only confiscate such weapons if they are used in a crime.
“You’re not going to come across a lot of cops who have not patted someone down for weapons and found simulated weapons at one point in time,” Sioux City Police Chief Rex Mueller told the Sioux City Journal . “(But) there’s kind of a gap in the law there that allows police officers to act.”
Woodbury County Attorney P.J. Jennings said he shares such worries. While he wouldn’t support a full ban on toy weapons, he would like to see the law strengthened to categorize BB and pellet guns as dangerous weapons when someone uses them in the commission of a crime as if they were real, leading to higher charges and stiffer sentences.
“There would be no difference in the trauma that the store clerk experienced regardless of whether it was a real gun or a fake gun,” Jennings said. “Not to mention what could possibly happen if this simulated weapon is directed toward a law enforcement officer.”
A walk through the aisles of the evidence room at Sioux City’s Police/Fire Headquarters reveals multiple shelves of stored lookalike weapons confiscated from criminals. They range from a few obvious toys to many that look and feel like the real deal.
Police Sgt. Scott Hatting said it can be nearly impossible to tell the difference in the flash of a moment, whether you’re a store clerk or an officer responding to an apparent threat.
“BB guns have evolved so much so that they make them look like real guns,” Hatting said. “These are not the Daisy BB guns I grew up with.”
Hatting recalled an encounter he had three years ago, while responding to a gun call. He located the suspect, a 17-year-old boy, in the McDonald’s nearby, and as he approached, the boy reached over to his waistband. A gun was tucked inside.
Hatting quickly grabbed the weapon and found it was not a real pistol, but a BB gun.
“That situation could have been bad very, very quickly,” he said. “He gets a gun out and it comes in my direction in any way, then I pretty much reluctantly have to defend myself, not knowing it’s a (BB) gun.”
Every year, nationwide, people brandishing toy weapons die in police shootings. According to a database of U.S. police shootings maintained by the Washington Post, 119 people brandishing toy weapons have been killed by police since 2015.
No such incidents have occurred in Sioux City, and police want to keep it that way. But they are wary that at some point a toy weapon might be pulled out in the wrong place at the wrong time, either in front of an officer or a person with a concealed carry permit.
Hatting said his incident three years ago sparked a push for a proposed amendment to the city’s ordinance that would ban the public carry of simulated weapons. Carrying a BB gun or pellet gun would have been a simple misdemeanor, under the proposal, with an exemption for Iowa concealed-carry permit holders. The measure was modeled after an ordinance adopted several years ago in Cedar Rapids.
City staff worked on a draft of the amendment and brought it forward to the City Council in March 2016. The amendment passed its first reading by a 3-2 vote. Mayor Bob Scott and then-Councilman Keith Radig cast the dissenting votes, with both arguing it would be difficult for the city to enforce the proposed change.
Upon consideration of the second of three required readings, the council sent the ordinance back to city legal staff for revisions, but it never resurfaced.
For several years, Jennings said he has supported legislation that would consider a simulated weapon a dangerous weapon under Iowa law if, when a crime is committed, the simulated weapon is presented as real.
Classifying a toy weapon as a dangerous weapon would allow for instances like the Dec. 15 robbery to become first-degree robbery, which carries a 25-year maximum sentence, as opposed to second-degree robbery, which carries 10 years. Currently, Jennings said, a BB gun must meet certain criteria to be proved to be a dangerous weapon.
“My main concern is that the terror a person experiences when confronted with a simulated weapon is the same as if it were a real weapon,” he said. “That individual will be traumatized.”
He said the measure was introduced in a bill at the Iowa Legislature this year and was a priority of the Iowa County Attorney’s Association. But he said the measure appears to have gone inactive in a session expected to wrap up in mid-April.
“I certainly hope they continue to push for this change next year,” he said.
Mueller said he would like police to have more of an ability to confiscate such weapons if there is reasonable suspicion of criminal intent, rather than wait for the weapons to be used in the commission of a crime.
“Say officers have contact with a male party called in at 12 o’clock at night who’s loitering at a 24-hour convenience store,” he said. “An officer makes contact, decides to pat down for weapons and discovers one of these things. Now, clearly based on time, setting, things like that person’s criminal history - that might lead us to believe they are thinking of using that for criminal activity, and having an ordinance or law to respond to that would be appropriate.”
Mueller said officers have good judgment.
“We don’t expect a kid that’s out there with a Nerf gun tucked in his pants - we’re not worried about those,” he said. “It would be the totality of circumstances that would lead us to believe what would occur with that simulated weapon.”
Until a legislative or ordinance change arises, Mueller said he hopes the police can help the public become aware of the dangers of toy weapons and the need to be careful when displaying them in public.
Jennings agrees.
“I would just encourage the parents in this community to talk to your kids about the proper uses of these BB guns and pellet guns, and that there could be severe consequences if they are not used appropriately,” he said.
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Information from: Sioux City Journal, http://www.siouxcityjournal.com
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