Fri 13 Jan, 2023 Criminal Defense

Are Airsoft Guns Legal in NYC?

New York City Administrative Code outlaws the possession of airsoft guns, BB guns, and other air guns in New York City if you do not have the appropriate licensing.

That section of the administrative code, 10-131(b), reads:

  • It shall be unlawful for any person to sell, offer to sell or have in such person’s possession any air pistol or air rifle or similar instrument in which the propelling force is a spring or air, except that the sale of such instruments if accompanied by delivery to a point without the city, and possession for such purpose, shall not be unlawful if such person shall have secured an annual license from the police commissioner of the city authorizing such sale and possession. The sale and delivery of such instruments within the city from one licensee to another licensee, and the use of such instruments in connection with an amusement licensed by the department of consumer and worker protection or at rifle or pistol ranges duly authorized by law shall not be considered a violation of this subdivision.
  • All persons dealing in such instruments referred to in this subdivision, shall keep a record showing the name and address of each person purchasing such instrument or instruments, together with place of delivery and said record shall be open to inspection during regular business hours by the officers of the police department of the city.
  • Every person to whom a license shall be granted to sell, possess and deliver the instruments described in this subdivision shall pay therefor an annual fee of ten dollars.

Therefore, if you are in New York City with a BB gun, airsoft pistol, or any other pistol that uses air to propel the projectile, you can be arrested and charged with violating New York City Administrative Code. If you are facing charges in NYC for possession of an airgun, contact us for a free consultation. We routinely handle air gun cases and know how to get great outcomes.

Furthermore, if your airsoft gun does not have bright neon coloring on it and therefore appears as a real weapon, you can also be charged with possessing an imitation weapon. That offense is a misdemeanor under New York City Administrative Code.

To be clear, the New York City Administrative Code only applies to the five boroughs of New York City. Therefore, you can legally possess an airsoft gun or other air pistol in New York State outside of New York City because the New York State Penal Law does not prohibit the possession of air pistols.

However, sometimes constitutional issues exist with air pistol cases because the police obtained the weapon after searching the defendant’s pants, car, or home without having probable cause or a warrant to allow them to legally search the area where the airsoft gun was recovered. For instance, if the police enter a home after a report of an assault inside the home, they cannot search a locked safe without a warrant. If they were to recover an airsoft gun from inside the safe, they would violate the owner’s constitutional rights.

Are Airsoft Pistols Considered to be a Firearm?

New York Penal Law does a very poor job of defining firearms, which is troubling because the consequences of possessing a firearm are very serious, including a felony record and prison time. Based on the loose definition of “firearm,” a person arrested for possessing a BB or airsoft gun is right to worry that an air gun could fit within the definition of a firearm.

The Penal Law’s definition of “firearm” is:

 “Firearm” means (a) any pistol or revolver; or (b) a shotgun having one or more barrels less than eighteen inches in length; or (c) a rifle having one or more barrels less than sixteen inches in length; or (d) any weapon made from a shotgun or rifle whether by alteration, modification, or otherwise if such weapon as altered, modified, or otherwise has an overall length of less than twenty-six inches; or (e) an assault weapon; or (f) any other weapon that is not otherwise defined in this section containing any component that provides housing or a structure designed to hold or integrate any fire control component that is designed to or may readily be converted to expel a projectile by action of explosive. For the purpose of this subdivision the length of the barrel on a shotgun or rifle shall be determined by measuring the distance between the muzzle and the face of the bolt, breech, or breechlock when closed and when the shotgun or rifle is cocked; the overall length of a weapon made from a shotgun or rifle is the distance between the extreme ends of the weapon measured along a line parallel to the center line of the bore. Firearm does not include an antique firearm.

Since, according to the Penal Law, a firearm includes “any pistol or revolver,” it would be reasonable to conclude that an air pistol…is a pistol and therefore a firearm.

Despite the vagueness of the Penal Law definition of “firearm,” certain cases have held that air pistols are not firearms. In People v. Schmidt, the First Department Appellate Division—which is a higher-level court whose decisions are binding in Manhattan—held that an air pistol is not a firearm. In a much more recent case, People v. Wilson, the First Department Appellate Division again ruled that an air gun is not a firearm.

Therefore, although airsoft and BB guns are illegal in New York City, they are generally not legally considered to be a firearm, and therefore the penalties are substantially lower compared to when a person possesses a traditional firearm in New York City without the proper licensing and is charged with a gun crime

With an experienced criminal defense lawyer, BB gun and airsoft charges can typically be dropped down so that a person charged with possessing an air pistol will be able to avoid a criminal record as well as serving any amount of jail time.

Get the Help You Need Today

If you are facing charges for possessing an air pistol like an airsoft or BB gun, contact NYC criminal lawyer Cody Warner for a free consultation. Cody can assess your case to determine the best strategy to get the best possible outcome.