Saying the real culprits are authentic-looking toy guns, the Brooklyn District Attorney announced yesterday that he would not attempt to prosecute the housing police officer who shot and killed a 13-year-old boy last September after suddenly coming upon the boy playing cops and robbers.
Standing behind a table displaying 16 black and silver toy guns, the District Attorney, Charles J. Hynes, said an investigation by his office made it "abundantly clear that the circumstances leading to the tragic death of this 13-year-old were not the fault of Police Officer Brian George, but rather the result of a proliferation of imitation toy guns."
The parents of the slain boy, Nicholas Heyward Jr., declined to comment on the decision, the Rev. Herbert Daughtry, a friend of the family, said. Mr. Hynes said he was prepared to meet with the parents to explain his decision.
Nicholas was shot in the stomach by Officer George on Sept. 27 on the 14th floor of 423 Baltic Street in the Gowanus Houses. He had been playing with nine friends.
"While some of the youngsters carried brightly colored toy guns which in no way can be confused with real guns," Mr. Hynes said, "some had guns very much like the ones displayed here." He said Nicholas was carrying an 18-inch, brown and black, double-barreled imitation rifle, "virtually indistinguishable from a real gun."
Explaining his decision not to present the case to a grand jury, Mr. Hynes said that Officer George, 23, who has been on the force for two years, had received two reports from a dispatcher about men with guns inside the housing project.
"As the officer was checking the dimly lighted stairwell leading to the roof, he was confronted with what appeared to be a man with a gun standing 10 feet away," Mr. Hynes said. "The officer heard two clicks, which he believed was the hammer striking the primer of a cartridge. At the sound of the second click, the officer fired."
The Housing Police Chief, Joseph Leake, said Officer George, who has been assigned to administrative duty since the shooting, would soon return to full duty. Officer George would not comment, said a spokesman for the housing police.
Although city law bars the sale of black, blue, silver or aluminum toy guns, Mr. Hynes said the toys on the table were among those bought from 21 Brooklyn stores over the last few days. Violations are punishable by up to a year in jail, but none of the stores' owners was charged.
Instead, Mr. Hynes said, investigators will go to those stores and others this week and periodically over the next year to see whether illegal toy guns remain on the shelves.
Some guns on the table bore red tips. "The red tip, which is a way of circumventing the code, they thought, which it clearly isn't, can be overcome by paint, by tape," Mr. Hynes said.
Six years ago, after the police in Memphis killed a boy carrying a toy gun they mistook for a Colt automatic, Congress required that manufacturers decorate toy guns in neon colors. But as real guns flooded the streets, children began painting their toys to look more realistic.
In October, responding to the Heyward shooting, Toys "R" Us, the nation's biggest toy retailer, announced that it would stop selling any toy gun that could be modified to look like the real thing.
Mr. Hynes said any new violations uncovered by his office would not just result in summonses. And, he said, "If the guns are still being displayed, we'll just back a truck up and take all the guns out."
