Last Updated on July 25, 2022 by Michelle Ball
By Michelle Ball, Sacramento California Expulsion, Special Education, sports/CIF, College, Education and School Attorney/Lawyer for Students since 1995
Have you purchased your kids an airsoft gun? Is it an “imitation firearm” and will they get in trouble if they bring it to school? Probably.
Air soft guns, BB guns and other similar devices have proven irresistible items for some students. What fun to get one of these “play” guns and go shoot some targets, right? Unfortunately, airsoft possessing students have ended up in the school office and usually in front of expulsion panels when possessing airsoft guns on campus or within a school’s area of control (to/from school, field trips, near school, etc.).
Definition of “Imitation Firearm” in Education Code
Schools look toward legal codes to get their guidance.
Per Education Code, section 48900(m), a student may be suspended or expelled for possession of an “imitation firearm.” This section defines what an imitation firearm is as:
“a replica of a firearm that is so substantially similar in physical properties to an existing firearm as to lead a reasonable person to conclude that the replica is a firearm.”
Education Code is Vague
This is great as it seems to exclude many items. However, it is also a little vague.
What is an airsoft gun has the orange markers on it? Is it similar to a real firearm? If the orange rings are taken off the airsoft gun, is it similar enough now? Maybe it depends on how the airsoft gun appears to others. It may be up to an expulsion panel to make this determination. However, there may be one other tool to use.
Penal Code Definition of Imitation Firearm Excludes Some Airsoft Guns
As definitions in the Education Code can be vague, other legal codes may be referenced in school matters for clarification.
The California Penal Code (PC) section 16700 defines what is NOT an “imitation firearm:
“‘Imitation firearm’ does not include any of the following:
(1) A nonfiring collector’s replica that is historically significant, and is offered for sale in conjunction with a wall plaque or presentation case.
(2) A spot marker gun which expels a projectile that is greater than 10mm caliber.
(3) A BB device that expels a projectile, such as a BB or pellet, that is other than 6mm or 8mm caliber.
(4) A BB device that is an airsoft gun that expels a projectile, such as a BB or pellet, that is 6mm or 8mm caliber which meets the following:
(A) If the airsoft gun is configured as a handgun, in addition to the blaze orange ring on the barrel required by federal law, the airsoft gun has a trigger guard that has fluorescent coloration over the entire guard, and there is a two centimeter wide adhesive band around the circumference of the protruding pistol grip that has fluorescent coloration.
(B) If the airsoft gun is configured as a rifle or long gun, in addition to the blaze orange ring on the barrel required by federal law, the airsoft gun has a trigger guard that has fluorescent coloration over the entire guard, and there is a two centimeter wide adhesive band with fluorescent coloring around the circumference of any two of the following:
(i) The protruding pistol grip.
(ii) The buttstock.
(iii) A protruding ammunition magazine or clip.
(5) A device where the entire exterior surface of the device is white, bright red, bright orange, bright yellow, bright green, bright blue, bright pink, or bright purple, either singly or as the predominant color in combination with other colors in any pattern, or where the entire device is constructed of transparent or translucent materials which permits unmistakable observation of the device’s complete contents.”
Students May Use the Penal Code to Try to Fight Expulsion
The Penal Code clarification may help in getting an “imitation firearm” charge dropped in school discipline matters if am object is specifically excluded from the definition. However, the Penal Code is a criminal code and may or may not be utilized, depending on the school district.
Even if a school agrees that a certain airsoft gun is not an “imitation firearm,” students up for suspension or expulsion may still face charges for bringing a dangerous object to school, regardless of whether it is an “imitation firearm.” And, the school may argue that possession of an airsoft gun on campus, which is a misdemeanor under the Penal Code, may be enough to support school expulsion.
All parents can do is try to fight the expulsion, and the tight Education Code definition with the detailed Penal Code exclusionary list may help.
School expulsion lawyer Michelle Ball helps students defend wrongful suspensions and school discipline. An attorney in Sacramento, California, she can represent families statewide, in counties such as Marin, Placer, Sacramento, Stanislaus, Los Angeles, San Francisco, and many other counties.
