Proposal to Clarify or Amend Ordinance 9.20.010

We belong to an unincorporated association called Masada Group, which consists of members that reside in Benbrook and surrounding areas who participate in the sport of AirSoft. Airsoft is a unique form of sport, where people use toy “replicas” of , which fire soft BBs that are propelled by a small burst of air generated by a spring driven piston. These devices are not generally categorized as “weapons” and are not regulated by the ATF or other governmental bodies as firearms. These toy replicas are similar in look to regular weapons with the exception of having orange tips on the and a wide variety of logos and airsoft markings on them, which distinguishes them from actual firearms and, thus, allows other residents and law enforcement to distinguish between the two.

Recently, Micah Berman contacted the Police Chief to see whether that were any issues regarding the use of AirSoft toy replicas within the city limits, particularly as a game is planned on private property for August 17, 2013. After a discussion regarding the potential application of ordinance 9.20.010, Mr. Berman is requesting that the City either clarify whether AirSoft toy replicas fall under the reach of that ordinance and, in the event that they do, amend the ordinance to allow an exception for the use of AirSoft toy replicas within the city limits at organized events with certain limits.

9.20.010 ‐ WEAPONS

Ordinance 9.20.010 on Weapons currently address broadly “weapons” and “firearms” and does not directly specify “Airsoft replicas” or the like; however, it does specify “air ” and “BB ” which are similar, but not identical to the much lower‐power AirSoft replicas. The ordinance currently reads:

“9.20.010 ‐ Prohibited acts.

It is unlawful and an offense for any person to fire or shoot or cause to be fired or , any , as that term is defined in this chapter, including any rifle, , automatic rifle, handgun, air rifle, BB gun, gun or any weapon designed for the purpose of firing or discharging any shell or , whether such is blank or live, in any place within the corporate limits of the city, except as otherwise permitted for self‐defense or other purposes under the laws of the state, or by the exceptions hereinafter set forth in this chapter.

(Ord. 991 § 1 (part), 1997)

9.20.020 ‐ Exceptions.

A. This chapter shall not apply to either military personnel or peace officers of the United States or the state or any of its political subdivisions while in the performance of their official duties. B. This chapter shall not apply to the use of blank cartridges for show or theatrical productions or for signal or ceremonial purposes in athletics or sports.

C. This chapter shall not apply on premises owned or operated by any branch of the Armed Services of the state or nation.

D. This chapter shall not apply to any organization existing for the purpose of operating and maintaining a rifle or firing range, providing such discharge is in the course of the regular functions of such organization; and provided, that such organization has secured and holds a permit from the city council for the operation of such facility.

E. This chapter shall not apply to any authorized animal control or wildlife management official performing duties authorized by the city council.

F. The city council may authorize additional exceptions on a temporary basis by resolution when necessary to protect public health, safety and welfare.

(Ord. 991 § 1 (part), 1997)”

Other cities have drawn a distinction between their ordinances governing firearms and other weapons, as opposed to AirSoft replicas. For example, the city of Dallas has a general provision restricting the discharge of firearms which is substantively identical to Benbrook’s weapon ordinance, reading:

SEC. 31‐4. DISCHARGING A FIREARM IN A PRIVATE PLACE.

(a) A person commits an offense if he discharges a firearm, rifle, shotgun, automatic rifle, revolver, pistol, or other weapon designed for the purpose of firing or discharging a shell or cartridge, in a place not customarily open to the public, whether the shell or cartridge is blank or live ammunition.

(b) It is a defense to prosecution under this section that:

(1) the person was a law enforcement peace officer acting in the performance of his official duties;

(2) the person was at a operated by an agency of the United States government, State of Texas, or a political subdivision of the state, or which is privately operated if approved by the police department;

(3) the person was using blank cartridges for a show or theatrical production, or for signal or ceremonial purposes in athletics or sports, or by a military organization; or

(4) the person was acting in a self‐defense or justifiable or excusable homicide situation.

(Ord. 14971)

However, Dallas then creates a separate section governing replica firearms, including AirSoft guns, which provides:

SEC. 31‐16. REPLICA FIREARMS.

(a) In this section:

(1) AIR SOFT GUN means a spring‐operated, gas‐operated, or battery‐ powered replica firearm made of hard plastic or light metal that fires plastic or other nonmetallic .

(2) FIREARM means any device designed, made, or adapted to expel a through a barrel by using the energy generated by an explosion or burning substance, or any device readily convertible to that use.

(3) ICE CREAM VENDING TRUCK OR PUSHCART means any vehicle from which ice cream or other frozen desserts are sold or offered for sale.

(4) GUN means a replica firearm that is powered by compressed gas (, nitrogen, or ordinary air) and fires dye‐filled gelatinous capsules.

(5) PUBLIC PLACE means any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops.

(6) REPLICA FIREARM means any device or object that is a toy version or facsimile of, or is reasonably likely to be perceived as, a pistol, revolver, shotgun, sawed‐ off shotgun, rifle, gun, rocket launcher, or other firearm, and includes but is not limited to a starter pistol, BB gun, pellet gun, air soft gun, paintball gun, or air rifle.

(b) A person commits an offense if he recklessly displays or brandishes a replica firearm in a manner or under circumstances that cause another person to:

(1) reasonably believe that the replica firearm is actually an operable firearm; and

(2) fear imminent bodily injury from a firearm.

(c) It is defense to prosecution under Subsection (b) that the person displaying or brandishing the replica firearm did so in self defense.

(d) A person commits an offense if he displays or brandishes a replica firearm in any public place within the city.

(e) It is a defense to prosecution under Subsection (d) that the replica firearm was:

(1) a non‐firing collector replica firearm modeled on a real firearm and not intended for use as a toy; or

(2) a decorative, ornamental, or miniature object having the appearance, shape, or configuration of a firearm and measuring not more than 38 millimeters in height and 70 millimeters in length (excluding any gun stock length measurement), including, but not limited to, an object intended to be displayed on a desk, worn on a bracelet or necklace, or attached to a keychain; or

(3) being displayed or brandished at a lawfully‐operated, contained location designated for games, events, and activities that involve replica firearms such as, but not limited to, paintball guns and air soft guns; or

(4) being displayed at a lawfully‐operated business establishment authorized to sell merchandise, including replica firearms; or

(5) being displayed or brandished as part of an event, performance, demonstration, or ceremony authorized by the city or sponsored and conducted by a subdivision of any federal, state, or local government; or

(6) being displayed or brandished in the production of a television program, a theatrical presentation, or a motion picture or other filming event in the city and written permission was obtained from the city to use the replica firearm in the production; or

(7) being displayed or brandished in a historical reenactment, military event, or other special event in the city requiring the use of a replica firearm and written permission was obtained from the city to use the replica firearm in the event; or

(8) being displayed or brandished for the purpose of protecting persons or property as authorized under Chapter 9 of the Texas Penal Code; or

(9) being displayed or brandished by a law enforcement officer or other government employee or official while acting in the performance of official duties.

(f) A person commits an offense if he:

(1) removes or obscures:

(A) the blaze orange tip required to be on a replica firearm under Title 15, Section 5001 of the United States Code; or

(B) any other colors or markings required to be on a replica firearm under city ordinance or federal or state law; or

(2) possesses a replica firearm on which the blaze orange tip required by Title 15, Section 5001 of the United States Code or any other colors or markings required by city ordinance or state or federal law have been removed or obscured.

(g) A person commits an offense if he, either personally or through an employee or agent, sells or offers for sale a replica firearm from an ice cream vending truck or pushcart.

(h) The owner, operator, or person in control of an ice cream vending truck or pushcart commits an offense if a replica firearm is present in or on the truck or pushcart while it is in the city.

(i) A person who violates a provision of this section is guilty of a separate offense for each day or part of a day during which the violation is committed, continued, or permitted. Each offense, upon conviction, is punishable by a fine not to exceed $500.

(Ord. Nos. 19855; 26761)

We request action from the City Council to either

(a) clarify and state that the current language of the ordinance does or does not extend to AirSoft replicas; and

(b) in the event, that the Council does make such a determination that AirSoft replicas fall into the category of prohibited weapons, take action to amend the ordinance to add an exception (g) to the current ordinance, stating as follows:

G. This chapter shall not apply to “AirSoft Replicas,” provided they being displayed or brandished at a lawfully‐operated, contained location designated for games, events, and activities that involve AirSoft replicas, and provided that any such event shall have adequate safety rules, take place on private property and players shall not brandish or discharge replica firearms within 100 feet of any public place or roadway . As used herein, “AirSoft Replica” means a spring‐operated, gas‐operated, or battery‐powered replica firearm made of hard plastic or light metal that fires plastic or other nonmetallic projectiles. (c) Alternatively in the event the Council makes such a determination that AirSoft replicas fall into the category of prohibited weapons and does not take permanent action, grant Micah Berman and Masada AirSoft Grop a temporary waiver or special use permit, allowing for use of AirSoft replicas subject to such conditions as the Council may see fit to impose:

The following are factors that favor a clarification or amendment to permit airsoft activity:

Current Vagueness of Ordinance: Assuming Benbrook’s current ordinance acts as a ban on discharging toy weapons, it is not an effective ordinance. People discharge Airsoft, Paintball, NERF and other such replica toy guns on Benbrook city limits regardless of the current ordinance and many would be surprised that the current ordinance acts as a potential ban on such activity.

Noise: Airsoft guns may be a bit loud, however they sound nothing like weapons. The noise the Airsoft Guns produce are from the effects of the springs or gasses used for propelling harmless airsoft

Bodily Injury: Airsoft guns cause minimal harm or none at all if the individual using the gun is taking proper safety precautions.

Gun Style/Look: Airsoft guns may look almost like replica guns, however they have orange tips and markings on them which are easy to spot differentiating them from real guns.

Sport: Airsoft is a form of organized sport, similar to Disc Golf, Laser Tag, and Paintball. However it is a much more supervised and policed alternative to paintball, and disc golf.

Police officers, Special Forces, Military Veterans, and Trained Medics, are known to participate in the Airsoft sporting activity regularly. There are no known indicators or factors that have been provided to prove Airsoft is a violent or even violence inducing sport. It is as harmless as playing a game of Disc Golf. In fact Disc Golf is more likely to inflict worse bodily harm than a toy airsoft weapon could (with the exception of airsoft players not having any kind of protective gear).

Organized Airsoft Sporting events on private property discourages the use of such properties being used for illegal gang, drug, or littering activities. Proactive events such as Airsoft are known to have event participants involved who work for the city or military.

I am merely asking to amend ordinance 9.20.010 to allow Airsoft events under strict guidelines, and provided below is the amendment that gives an exception for people to play Airsoft events within the Benbrook City Limits.

People gather almost daily for airsoft games in Fort Worth, Dallas, Midlothian, and other areas across Texas and the rest of the United States. Properly organized games have never had any injuries resulting from direct contact with an . Rather those injuries are inflicted by the actual facilities in use for the games, injuries of these kind are common in almost any daily outdoor sports activity.

Police officers, Special Forces, Military Veterans, and Trained Medics, are known to participate in the Airsoft sporting activity regularly. There are no known indicators or factors that have been provided to prove Airsoft is a violent or even violence inducing sport. It is as harmless as playing a game of Disc Golf. In fact Disc Golf is more likely to inflict worse bodily harm than a toy airsoft replica could (with the exception of airsoft players not having any kind of protective gear).