Nation's Largest Retailer Sued Over Toy Gun Sales

As part of an ongoing public safety effort, Attorney General Spitzer today announced a lawsuit against the nation's largest retailer for selling toy guns that lack safety markings required by state law.

"Retailers doing business in New York state must comply fully with the state law that requires several distinctive markings on toy guns," Spitzer said. "This law is clear in its requirements and unassailable in its intent to ensure the safety of children and help law enforcement officials do their job."

The lawsuit against Wal-Mart Stores, Inc. follows months of effort by Spitzer's office to convince the Arkansas-based company to comply fully with the requirement that all toy guns bear several orange markings clearly distinguishing them from real weapons.

Wal-Mart has acknowledged that its toy guns do not have all of the state-required markings. The company maintains, however, that it need only comply with federal law, which requires an orange cap on the end of the barrel.

Spitzer said: "Companies cannot pick and choose which laws and which provisions of the law they will comply with. Firms that do business in New York must honor both the spirit and the letter of all our laws."

Wal-Mart's toy guns have an orange cap at the end of the barrel, but otherwise look real in that they are the color of real guns. New York law bans realistic colors, such as black or aluminum, and requires that the toy guns have non-removable orange stripes along the length of the barrel.

Safety experts say that barrel caps and barrel stripes are important in helping law enforcement officers distinguish a toy gun from a real gun. Brightly colored barrels and non-removable barrel stripes are especially important because plastic barrel caps can fall off or be removed, making the toy virtually indistinguishable from a deadly weapon.

Wal-Mart sold more than 42,000 toy guns in New York during the last two and a half years.

Matthew Tynan, President of the State Police Investigators Union and a 22-year state police veteran, said: "Without clear markings, it is extremely difficult to tell the difference between a toy gun and a real weapon. Strict enforcement of the state toy gun law is imperative."

Improperly marked toy guns can lead to tragic consequences. In August 2002, a Brooklyn man holding a toy gun was shot and killed by police. In March 2000, two Brooklyn teenagers carrying toy guns were shot and killed by undercover detectives. In August 1998, a 16-year old Brooklyn boy waving a toy gun while riding a bicycle was shot by police and seriously wounded. In January 1997, a 26-year old Long Island woman was killed by a police officer who believed the toy gun she was carrying was real.

The Wal-Mart litigation, filed March 31 in State Supreme Court in Manhattan, seeks to prohibit the company from selling toy weapons in New York that violate state law and also seeks penalties against the company.

The case against Wal-Mart is the latest in a series of actions brought against retailers by the Attorney General's Office for violations of New York's toy weapons law, including:

  • September 2002, the Attorney General's Office reached a settlement with Rite-Aid Pharmacies in which the company agreed to stop selling toy guns in New York and paid a $30,000 penalty to the state.
  • January 2001, the Attorney General's Office sued four dollar stores in Westchester County for failure to comply fully with the state's toy gun law. All four agreed to cease selling illegal toy guns and paid a total of $11,750 to the state in costs and penalties; and,

  • Throughout 2001, the Attorney General's Office took actions against eight Manhattan stores for toy gun law violations. All eight have ceased selling illegal toy guns and paid a total of $27,750 to the state in costs and penalties.

The Wal-Mart litigation is being handled by Assistant Attorney General Nick Garin of the Attorney General's Poughkeepsie Regional Office.