After high-profile push, fake firearms bill in Massachusetts saddled with study order

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BOSTON >> When House Speaker Robert DeLeo met with reporters after his party's caucus on Jan. 27, he had Reps. Dan Cullinane and Harold Naughton in tow to discuss a bill the House planned to pass that afternoon.

Filed by Cullinane, the bill would require a high-visibility orange stripe on imitation firearms sold in Massachusetts. Naughton's Public Safety Committee had held a hearing on the bill, made a few tweaks to it and gave it a favorable report.

But just hours later, the bill that appeared on the precipice of passage was instead steered off to the Joint Committee on the Judiciary, which this week included it in a study order, effectively killing the bill for this session.

"While, right now, we may not yet have got it passed the finished line, we have elevated this issue and sparked an important dialogue in this conversation on the dangers and risks of imitation firearms and provided a framework for how to improve on this issue in the Commonwealth," Cullinane said in a statement Wednesday to the News Service. "I will be continuing to work on this issue for the rest of this session and I will absolutely re-file what I hope through further study to be an even stronger bill next session."

The bill, which had the backing of the Boston Police Department, Attorney General Maura Healey, and Boston Mayor Martin Walsh among others, would have required that replica gun manufacturers include a non-removable one-inch orange stripe along the barrel, handle and front of the gun so it can be seen from every angle.

Stop Handgun Violence founder John Rosenthal told the News Service this week he was "surprised and disappointed" to hear that the Cullinane bill won't find its way back onto the House floor this session. The Boston Police Department did not return phone calls or an email from the News Service.

In January, Cullinane told the News Service his bill (H 3476) was referred by the House to the Joint Committee on the Judiciary "to determine once and for all" if the bill complies with a federal law that preempts state laws concerning the sales of airguns.

House Judiciary Chairman John Fernandes said his committee considered only whether Cullinane's bill ran afoul of federal statutes that relate specifically to BB guns and other hobby guns, not the overall value of the bill.

"That bill was not our bill to start with. It was referred to us for one consideration and one consideration only: the scope of preemption of federal law," Fernandes said. "And based upon the legal review, there were significant issues with preemption."

The federal law in question states that "No state shall ... prohibit the sale (other than prohibiting the sale to minors) of traditional B-B, paint ball, or pellet-firing air guns that expel a projectile through the force of air pressure."

"There may be some limited space to work in there. Some other states have tried with varying success or lack thereof to find that space," Fernandes said. "But our reaction to the preemption issue is not a statement on the utility or value of the underlying issue of whether there should or should not be additional regulations around the markings and what should and should not be available in the public."

Cullinane said in January he expected the bill would get a swift hearing before the Judiciary Committee and be back before the House for consideration.

On Wednesday, the Dorchester Democrat said he expects the bill's inclusion in a study order will afford its supporters "the sufficient time and opportunity" to make sure the bill language is as effective as possible without leaving open any loopholes.

"The legislature considers over 5,000 bills a session, all of varying complexity, and on certain issues, such as this one, which deal with significant legal questions, such as in this case 'federal preemption,'" he said in his statement. "As a consequence, a bill may sometimes require additional time and examination to ensure the final legislative language is written to withstand any potential legal challenges down the road."

And though his bill did not pass this session, Cullinane said he thinks the debate over it "elevated and productively changed" the conversation on replica guns and drew attention to the manufacturers selling look-alike firearms.

"Through this legislation, I believe we rightly put the spotlight on the big-money, manufacturers and retailers, who make and sell these products which look exactly like bullet firing guns and celebrate in their advertising just how real they look. This industry has escaped responsibility and accountability for too long and their products put their customers and many young people in harm's way," Cullinane said.

The push for the replica gun bill comes after the high-profile 2014 fatal officer-involved shooting of 12-year-old Tamir Rice in Cleveland. A police officer responding to a report that a man was pointing a gun at people at a local park shot and killed Rice, who allegedly had a replica gun tucked into his waistband.

"Given the authentic look of all these guns, police officers have a real difficult time to distinguish what is real and what's not and our worst case scenario is what happened in Cleveland happening here in Boston," Boston Police Commissioner William Evans told lawmakers in January. "We come upon too many incidents too many times where people have these type of guns, and fortunately my officers have used a tremendous amount of restraint and not used deadly force when it was clearly within their right."

Boston police took 174 replica guns off the streets in 2015, Evans said when he testified in support of the bill, and 179 in 2014. The replica guns are commonly used in commercial robberies, street robberies and other crimes, Evans said.


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