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By Katie Glueck January 24, 2012

Eddie Lucio says Texas does not regulate the appearance of some kinds of imitation firearms sold in Texas

A Democratic state senator called for regulations after police fatally shot a 15-year-old boy who was brandishing what turned out to be a non-lethal air pistol.

In an interview posted online Jan. 6, 2012, by KRGV-TV, Channel 5, Eddie Lucio of Brownsville said: "First of all I think that there should be a prohibition of some kind on the appearance of these pellet guns and airsoft guns that are sold in the state of Texas." At least, Lucio said, such guns should visibly stand out so "we understand exactly what they are."

In the same segment, reporter Eddie Flores said Lucio told him that "right now, there are no known regulations or prohibitions in the appearance of pellet guns or airsoft guns in the state of Texas."

No regulations in Texas?

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When we inquired, Lucio’s legislative director, Sara González,said the senator intended to stress the lack of state, not federal, regulations of the facsimile firearms’ appearances.

Airsoft guns, she said, are required by federal law to display a 6-millimeter orange tip, a mandate that doesn’t apply to pellet or BB guns. "What (Lucio) meant is there is nothing in the state that we know of," she said. "There’s federal regulation on airsoft guns, but that doesn’t apply necessarily to metal pellet-type guns or BB guns."

In the Jan. 4, 2012, incident at a Brownsville middle school, the student was wielding a Umarex SA177, according to news accounts. The device solely fires steel BBs, Justin Biddle, a marketing manager at Umarex USA, told us in an interview.

González helped us isolate the federal law that regulates the appearance of imitation firearms, stipulating the 6-millimeter orange marking requirement for airsoft guns. Those guns shoot projectiles at a lower speed than pellet or BB guns, according to Jeffrey Welty, an assistant professor of public law and government at the University of North Carolina School of Government, who specializes in criminal law and procedure.

But the marking requirement does not apply to "traditional BB, paint-ball, or pellet-firing air guns that expel a projectile through the force of air pressure," the law says.

So, the gun used in Brownsville was exempt from federal marking requirements.

In the wake of the shooting, the office of Rep. Rene Oliveira, D-Brownsville, also examined legal issues related to facsimile firearms, said J.J. Garza, Oliveira’s chief of staff. Garza pointed us to another part of the U.S. Code, Section G, which states that federal provisions on imitation gun identification supersede such local or state laws and ordinances.

But are there state and local restrictions anyway?  

Meagan Dorsch, a spokeswoman for the National Conference of State Legislatures, emailed us the organization’s July 2011 list showing states with imitation firearm statutes:  Arkansas, California, Connecticut, Kansas, Louisiana, Minnesota, Mississippi, New Jersey, New York, Tennessee and Wisconsin.

We wondered how any state statutes survive without conflicting with the superseding federal law. By addressing aspects not included in the federal provisions, advised David Kopel, an expert on firearms policy and research director at the Independence Institute, a free-market think tank in Colorado. For instance, he said by email, "Louisiana’s statutes only applies to guns that fire blanks, and those aren't covered by the federal law."

Separately, experts at the Texas Legislative Library said that some Texas cities, including Plano, Horseshoe Bay, Farmers Branch and Carrollton have local ordinances that regulate how people display facsimile firearms--no reckless displays of imitation guns in public places, for example--but these statutes don’t regulate the appearance of the guns.

Our ruling

There are no state-level regulations of the appearance of pellet/BB or airsoft guns sold in Texas, but federal law requires airsoft guns to have special markings -- a wrinkle Lucio did not clarify.
We rate his statement Mostly True.

Our Sources

Interview, State representative speaks about toy guns,  KRGV-TV, Channel 5

Telephone interview, Sara González, legislative director, state Sen. Eddie Lucio, Jan. 6, 2012

Telephone interview, Justin Biddle, marketing manager, Umarex USA, Fort Smith, Ark., Jan. 12, 2012

Telephone interview, J.J. Garza, chief of staff to state Rep. Rene Oliveira, Jan. 10, 2012

Telephone interview, Meagan Dorsch, Director of Public Affairs, the National Conference of State Legislatures,  Jan. 13, 2012  

Telephone interviews, Becky Johnson, reference librarian, Texas Legislative Reference Library, Jan. 10 and Jan. 18, 2012

The U.S. Code, 15 U.S.C.§ 5001: US Code-- Section 5001: Penalties for entering into commerce of imitation firearms

Telephone and email interview, David Kopel, Jan. 18, 2012

Telephone interview, Jeffrey Welty, assistant professor of public law and government, the University of North Carolina,  Jan. 23, 2012

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Eddie Lucio says Texas does not regulate the appearance of some kinds of imitation firearms sold in Texas

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