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Look-alike weapons flirt with disaster; Federal Way urges tougher laws

After a close call, the Federal Way Police Department urges the state to toughen laws on brandishing look-alike weapons.

Federal Way Police Chief Brian Wilson will request the state Legislature amend the second-degree assault statute this coming session and allow stricter punishment for suspects using firearms replicas during run-ins with law enforcement. The look-alikes, such as Airsoft guns, are becoming more popular among criminals, Wilson said.

"If they are not able to get a firearm, they get the next best thing," he said.

Wilson's actions stem from an incident that happened earlier this year. While on duty May 10, Federal Way police officer Bryan Walsh witnessed a vehicle prowl in progress. The suspect, Daven Clayton, took off running. Walsh caught up to him in Ross Plaza, near South 324th Street. A foot pursuit then ensued. During the chase, Clayton pulled and aimed what appeared to be a silver semi-automatic pistol at the officer and yelled at Walsh "you better stop following me," according to court documents.

"His intent was to let the officer know he had a gun," Wilson said.

Walsh, believing Clayton's gun was real, fired two shots at the suspect, according to the same documents. The shots missed Clayton, whose weapon turned out to be an Airsoft pistol, incapable of inflicting serious harm. Airsoft guns are sold in sporting and hunting goods stores, and are commonly used in games simulating combat. The guns fire plastic BBs and many designs, though not all, feature an orange tip near the barrel of the gun. The toys are made to closely replicate actual firearms.

"Given the moment, it's very hard for an officer to distinguish what's an Airsoft (and what's a real firearm)," Wilson said. "I'm confident if the officer would have shot the suspect and killed him right there, it would have been justified, given (Clayton's) actions."

The King County Prosecutor's Office reviewed the case, but determined it could not charge Clayton with Assault 2 — a felony — because the suspect's look-alike gun was not capable of seriously harming Walsh. To charge Clayton with second-degree assault, his weapon had to be real, prosecutor's office spokesman Dan Donohoe said.

"We worked with prosecutors; in short order, it identified a sort of loop-hole," Wilson said.

Clayton was charged with the less-serious crime of Assault 3. This carries a maximum punishment of five years jail time or a $10,000 retribution, compared to 10 years in jail or a $20,000 retribution maximum for Assault 2, said Dan Clark, King County Prosecutor's Office Assistant Chief of the criminal division. The punishment is the same as what Clayton could have faced if he had punched or kicked Walsh, Clark said.

The state's assault statute is unlike its robbery statute, in which suspects using a deadly weapon (or something simulating a deadly weapon) toward a police officer can automatically be charged with a Class B felony — counted as one strike against the suspect, he said.

"We recognized the very serious nature of the offense, but there wasn't a good crime that fit the facts that we could charge (for), outside of assault in the third degree," he said. "Sometimes it takes an event like this to prompt a discussion."

Wilson plans to continue the discussion with state legislators and representatives. Stricter laws governing the use of look-alike weapons could improve the safety of officers, suspects and the public.

"This incident that occurred here in Federal Way was pretty serious and I want to be supportive of our officers and their performance of their duty," Wilson said. "We could have had a death fairly easily."

Clark said he sees no drawbacks to the proposed legislation.

"If we can deter individuals from pointing these things at officers, I consider that a victory," he said.

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Check it out:

To learn more about the state's second-degree assault statute, visit the Washington State Legislature Web page at http://apps.leg.wa.gov/ and read RCW 9a.36.021. Visit http://apps.leg.wa.gov/ to read more about RCW 9a.36.031: Third-degree assault.

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F.Y.I.:

Daven Clayton pleaded guilty as charged to third-degree assault and second-degree vehicle prowl. He also pleaded to a separate charge of felony violation of a no-contact order. Clayton faces 12 to 14 months in prison and is scheduled for sentencing Oct. 3.

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