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Is It Legal to Shoot Someone Carrying a Fake Gun?

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By Ephrat Livni, Esq. on November 24, 2015 10:59 AM

Four police officers shot and killed a man in Oakland who approached them with a fake gun last week, SF Gate reports. The officers' body cameras were not on, as they were doing paperwork rather than detaining anyone.

The police said they were shocked to discover the gun was a replica. The shooting is being investigated by Oakland's homicide unit and internal affairs division, as well as the Alameda County District Attorney's Office. But if the officers reasonably believed that the replica -- and therefore the threat to them -- was real, then the shooting of Richard Perkins, 39, was legal.

What Is Reasonable?

Although the self-defense statutes vary from state to state, it is a general principle of American law that a person who perceives an imminent threat of bodily danger may defend him or herself. The force that can be used in self-defense is commensurate with the extent of threat. In other words, the threat and the response must be proportional, or at least seem to be.

That is where things get tricky. If four police officers reasonably believed that when Richard Perkins approached them with a gun in hand, he posed a serious imminent threat, the fact that the gun was a fake does not make them guilty of murder. It is a homicide but not necessarily illegal, as the mistake may have been reasonable and the law does not demand more from people under attack.

Police said Perkins walked up to the cops, pulled out an airsoft pistol and pointed it at the officers, who scattered before all four opened fire. The officers attempted to resuscitate Perkins, but he died at the scene. Soon after, the officers realized the gun was a fake.

Mistaking a Fake

So, no, you cannot use a real gun to shoot someone threatening with a fake gun. But if the fake and the threat seem real enough, then you may not be charged with murder if you do kill in self defense. If you or someone you know has been accused of a crime, speak to a local criminal defense attorney.

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