Teen's tragic plight prompts federal BB inquiry

Pennsylvania - New Jersey - New York - Nationwide

By Oshrat Carmiel
Inquirer Suburban Staff
WEDNESDAY, JUNE 6, 2001

Prompted by a backyard shooting that left a Bucks County teenager brain-damaged, a federal consumer agency has reopened a 1995 investigation into high-velocity BB guns.

The Consumer Product Safety Commission is scrutinizing Daisy Manufacturing Co.'s line of multipump air guns, including the 856, the rifle with which Tucker Mahoney was injured two years ago.

The Mahoney family contends that BBs can get stuck in the magazine of the Daisy 856, leading the shooter to believe the gun is empty when it is not.

The company disagrees.

The Mahoneys' lawyers, who say Daisy knew of the alleged defect but kept it from the public, hope the model will be recalled.

But the commission has broad powers - it outlawed lawn darts in 1988 after three children died playing with them - and could go well beyond a recall order.

"If they determine that high velocity is a no-no, then it could apply not only to Daisy but . . . to anyone else making a high-velocity gun," Aaron Locker, a lawyer for Daisy, said.

The commission may decide within the next several weeks whether to take action as a result of the case.

Tucker Mahoney was injured in May 1999.

Two days after receiving a BB gun from his parents for his 16th birthday, he and a friend spent the afternoon shredding targets in the Mahoneys' backyard in Solebury.

Eventually, they could no longer hear BBs rattling in the chamber. Only air emerged from the barrel when they pulled the trigger. Figuring the gun to be empty, they shot at each other, watching as air bursts mussed their hair, according to the Mahoneys' lawyers.

But then the other boy faced Tucker and pulled the trigger, and a BB shot out of the 856 - cracking Tucker's skull, piercing an artery in his brain, and leaving him unable to walk or talk.

While Tucker began his rehabilitation, law partners Shanin Specter and Andrew Youman represented the Mahoney family in a lawsuit against Daisy.

They contended that a BB had gotten stuck in the magazine of the 856, and that it had happened before and could happen again.

Specter and Youman argued that the company had known of the alleged defect and had corrected it but had failed to tell anyone and had left the unmodified models on the market.

Jack Wall, a lawyer for Daisy, said the company has acknowledged modifying the gun in 1998 and again in March 1999 - two months before Jay Mahoney bought an unmodified model for his son - but not exclusively for safety reasons.

Daisy's position is that BBs do not get stuck in the 856, Wall said.

"These incidents were not caused by a defect in the gun," he said. "These incidents were caused by reckless misconduct of the people."

Daisy has settled with the Mahoneys, but while the case was pending, in May 2000, Specter and Youman went to the safety commission's offices in Washington and requested that it investigate the 856. The commission agreed to do so.

This was not the first time that it had been asked to analyze BB guns, which are not federally regulated.

High-velocity multipump air guns were first marketed by Crosman Corp. in the late 1960s, according to Dean Fletcher, author of 75 Years of Crosman Airguns. The industry was dominated then by Daisy, famous for a low-power gun, the Red Ryder, marketed as a safe product with which to teach boys to shoot.

In 1971, according to a company memo, Daisy officials decided that they needed to compete with the Crosman 760, a model bigger and more powerful than any multipump that Daisy offered.

Daisy wanted to manufacture a gun that could be marketed through Sears and replace the Crosman 760 as the model of choice, according to documents obtained through the Mahoney case. It designed the 880, a gun similar to the 856.

Before the advent of the multipump gun, which can be pumped by hand to increase the muzzle velocity, the average BB gun could fire with a velocity no greater than 375 feet per second, a force that could, at worst, put out an eye, experts said.

The multipumps, some of which cost less than $50, have doubled that velocity.

"BBs will puncture six inches of human body tissue," said David Townshend, a ballistics expert formerly with the Michigan State Police, who has testified against Daisy. "This is a gun that can kill you."

At 20 pumps, the muzzle velocity of the Daisy 856, Townshend said, is greater than that of the .38 special that he carried while with the state police.

"Tucker wanted a gun with a scope for target shooting," the boy's mother, Becky Mahoney, said. "We did not realize how powerful that gun is."

In 1995, an inquiry ended with the commission's finding the Daisy 880 free of defects. That inquiry has been reopened because of Tucker's injury.

Over the years, the commission has resisted calls to regulate BB guns, deferring, instead, to an appointed panel - one that includes officials from air-gun makers - that has recommended voluntary controls.

Ken Giles, a commission spokesman, refused to comment on the scope of the pending investigation but said the commission preferred voluntary rules to mandatory ones.

The voluntary BB-gun regulations require that there be warning labels but establish no limits on muzzle velocity. Industry officials insist that no more regulation is necessary.

"In every case, without exception, it's always misuse, careless use or bad judgment that causes [injuries]," said Joe Murfin, director of marketing for Daisy, based in Rogers, Ark.

"Don't point it at another person. If you follow that rule, nothing else matters."

BB guns are used in millions of American backyards. A 1994 commission report said 3.2 million air guns are sold annually in the United States. Crosman and Daisy are among the industry leaders.

The commission estimates that there have been 20,000 to 23,000 accidents related to air guns per year over the last five years. According to its 1994 report, the victim was under 16 in 34 of the 37 fatal BB-gun accidents recorded between 1985 and 1994.

"They are lethal toys, two words that don't go together," Specter said.

Doctors who examined Tucker after the accident on May 24, 1999, said he had suffered severe brain damage.

Taking incremental steps, he now spends his day relearning basic functions. Therapists teach him how to use his limbs, move his eyes, and communicate by writing a few simple words. Three days a week, he goes to Crozer-Chester Medical Center to relearn how to swallow.

Improvement comes slowly. He recognizes friends and family members and can write their names but unsteadily.

His parents have been bolstered by the support of the New Hope-Solebury community. Tucker's basketball jersey, with the number 33, has been retired at New Hope-Solebury High School. His classmates plan to wear yellow ribbons in his honor at commencement June 15.

Close friends and complete strangers have kept the Mahoneys afloat on a sea of medical bills.

And through it all, Jay and Becky Mahoney have kept vigil over their only son.

They stretch his fingers, rub his lips, talk to him, trying to help him become once again the energetic teen he was two years ago, when his chief concerns were improving his basketball skills and learning to drive.

"We just keep praying for a miracle," Becky Mahoney said. "We just want our little boy back."