- Associated Press - Thursday, January 30, 2014

LINCOLN, Neb. (AP) - Robbers who use a toy gun in a holdup could still face a felony firearm charge in Nebraska under a bill considered Thursday by a legislative panel.

Sen. Burke Harr of Omaha said he introduced the measure because state law doesn’t consider situations involving fake guns or guns that don’t work.

“The criminal in this situation comes in with intent. They show an object, and their intent is to make you think it’s real. It’s to inflict fear into you,” Harr said in testimony to the Judiciary Committee.

Douglas County Attorney Don Kleine said prosecutors have faced problems in cases where a gun is never recovered and victims can’t say for sure whether they were threatened with a deadly weapon. Under the current law, the felony level would increase if prosecutors can prove that the gun was a working, deadly weapon.


“I think this makes sense from a law enforcement perspective,” Kleine said. “If the purpose is to make the victim think they have a firearm … then I think they should be prosecuted for use of a facsimile firearm.”

Defense lawyers say most cases with fake guns already involve charges of robbery or other serious crimes. The bill would just add another charge for convicts facing long prison sentences for robbery or making terroristic threats, said Chris Eickholt of the Nebraska Criminal Defense Attorneys Association.

“The person may not be found guilty of the use of a firearm because a gun couldn’t be found, but that doesn’t mean the person walks,” Eickholt said.

The hearing came on the heels of a bill approved by the California Senate on Tuesday that would require BB and pellet guns to look clearly different from those that fire bullets. The legislation advanced in the wake of the October fatal shooting of 13-year-old Andy Lopez in Santa Rosa, Calif. Lopez was killed when a sheriff’s deputy mistook the boy’s “airsoft” rifle for a real AK-47. Airsoft guns are replica firearms that fire plastic pellets, paper balls or eraser chunks.

The Nebraska bill would apply to BB guns, pellet guns, paintball guns, squirt guns and replicas.

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The bill is LB877.