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Proposal to Clarify Or Amend Ordinance 9.20.010

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Proposal to Clarify Or Amend Ordinance 9.20.010 Proposal to Clarify or Amend Ordinance 9.20.010 We belong to an unincorporated association called Masada AirSoft 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 firearms, which fire soft plastic 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 guns 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 rifle” and “BB gun” 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 shot, any firearm, as that term is defined in this chapter, including any rifle, shotgun, automatic rifle, handgun, air rifle, BB gun, pellet gun or any weapon designed for the purpose of firing or discharging any shell or cartridge, 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 pistol 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 shooting range 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 projectiles. (2) FIREARM means any device designed, made, or adapted to expel a projectile 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) PAINTBALL GUN means a replica firearm that is powered by compressed gas (carbon dioxide, 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, machine 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.
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