BILL NUMBER: SB 331 AMENDED BILL TEXT AMENDED IN ASSEMBLY JULY 18, 2001 AMENDED IN ASSEMBLY JUNE 27, 2001 AMENDED IN SENATE MAY 16, 2001 AMENDED IN SENATE MAY 2, 2001 INTRODUCED BY Senator Morrow (Coauthors: Senators Peace and Perata) FEBRUARY 20, 2001 An act to amend , repeal, and add Section 12403.7 of the Penal Code, relating to weapons. LEGISLATIVE COUNSEL'S DIGEST SB 331, as amended, Morrow. Weapons: tear gas. Existing law regulates the purchase, possession, and use of any tear gas or tear gas weapon and prohibits, among other things, the purchase, possession, or use of any tear gas or tear gas weapon that expels the tear gas by any method other than an aerosol spray, as specified. This bill would exempt from this prohibition a tear gas weapon that meets specified conditions, including, among other things, that the weapon does not use an explosive, as defined, uses a projectile that is a frangible plastic container that allows for dry powder dispersion under specified conditions, and is manufactured with safety mechanisms to prevent unintended discharge by the operator and by a minor under the age of 12 years. The bill would require that the tear gas weapon be used solely for self-defense purposes within the person's place of residence, place of business, or on private property owned or lawfully possessed by the person. This bill would make any person who uses a tear gas weapon that meets these specified conditions except in self-defense guilty of a misdemeanor, except if the violation is against a peace officer, as specified, the offense would be punishable byup to one year in a county jail and a fine not to exceed $2,000imprisonment in the state prison for 16 months, or 2 or 3 years, or by a fine of $1,000, or by both that fine and imprisonment . By creating a new crime, this bill would impose a state-mandated local program. This bill would specify that its provisions relating to tear gas weapons that expel a projectile would remain in effect until January 1, 2007. The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that no reimbursement is required by this act for a specified reason. Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 12403.7 of the Penal Code is amended to read: 12403.7. Notwithstanding any other law, any person may purchase, possess, or use tear gas and tear gas weapons for the projection or release of tear gas if the tear gas and tear gas weapons are used solely for self-defense purposes, subject to the following requirements: (a) No person convicted of a felony or any crime involving an assault under the laws of the United States, the State of California, or any other state, government, or country or convicted of misuse of tear gas under subdivision (g) shall purchase, possess, or use tear gas or tear gas weapons. (b) No person who is addicted to any narcotic drug shall purchase, possess, or use tear gas or tear gas weapons. (c) No person shall sell or furnish any tear gas or tear gas weapon to a minor. (d) No person who is a minor shall purchase, possess, or use tear gas or tear gas weapons. (e) (1) No person shall purchase, possess, or use any tear gas weapon that expels a projectile, except as provided in paragraph (2), or that expels the tear gas by any method other than an aerosol spray, or that contains more than 2.5 ounces net weight of aerosol spray. (2) A person may purchase, possess, or use a tear gas weapon that expels a projectile subject to all of the following specified conditions: (A) The tear gas weapon is in a color other than black or silver. (B) The tear gas weapon does not use an explosive, as defined in Section 12000 of the Health and Safety Code, to expel the projectile. (C) The tear gas weapon is designed and manufactured with an effective range of no greater than 30 feet. (D) The projectile is a frangible plastic container that allows for dry powder dispersion that contains no more than 0.5 ounces of dry powder. (E) The projectile is not manufactured in a standard paintball caliber size and does not have a diameter greater than 0.6 inches. (F) The tear gas weapon is manufactured with a safety mechanism designed to prevent unintended discharge by the operator. (G) The tear gas weapon is manufactured with a child safety mechanism designed to prevent discharge by a minor under the age of 12 while the child safety mechanism is engaged. (H) The tear gas weapon shall be used solely for self-defense purposes within the person's place of residence, place of business, or on private property owned or lawfully possessed by the person. (I) The tear gas weapon shall not be carried by a person concealed upon his or her person in public or carried or concealed within any vehicle under his or her direction or control, except that the tear gas weapon may be carried in a separate container on a direct route to or from the person's place of residence, place of business, or private property that is owned or lawfully possessed by the person for use as allowed by this paragraph. (J) Any person who uses a tear gas weapon that expels a projectile, as specified in this paragraph, except in self-defense, is guilty of a public offense punishable as a misdemeanor, except if the use is against a peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2, engaged in the performance of his or her official duties and the person committing the offense knows or reasonably should know that the victim is a peace officer, the offense is punishable byup to one year in a county jail and a fine not to exceed two thousand dollars ($2,000).imprisonment in the state prison for 16 months, or two or three years or by a fine of one thousand dollars ($1,000), or by both that fine and imprisonment. (3) Every tear gas container and tear gas weapon that may be lawfully purchased, possessed, and used pursuant to this section shall have a label that states: "WARNING: The use of this substance or device for any purpose other than self-defense is a crime under the law. The contents are dangerous--use with care." (4) After January 1, 1984, every tear gas container and tear gas weapon that may be lawfully purchased, possessed, and used pursuant to this section shall have a label that discloses the date on which the useful life of the tear gas weapon expires. (5) Every tear gas container and tear gas weapon that may be lawfully purchased pursuant to this section shall be accompanied at the time of purchase by printed instructions for use. (f) Effective March 1, 1994, every tear gas container and tear gas weapon that may be lawfully purchased, possessed, and used pursuant to this section shall be accompanied by an insert including directions for use, first aid information, safety and storage information, and explanation of the legal ramifications of improper use of the tear gas container or tear gas product. (g) Any person who uses tear gas or tear gas weapons except in self-defense is guilty of a public offense and is punishable by imprisonment in a state prison for 16 months, or two or three years or in a county jail not to exceed one year or by a fine not to exceed one thousand dollars ($1,000), or by both the fine and imprisonment, except that, if the use is against a peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2, engaged in the performance of his or her official duties and the person committing the offense knows or reasonably should know that the victim is a peace officer, the offense is punishable by imprisonment in a state prison for 16 months or two or three years or by a fine of one thousand dollars ($1,000), or by both the fine and imprisonment. (h) This section shall remain in effect only until January 1, 2007, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2007, deletes or extends that date. SEC. 2. Section 12403.7 is added to the Penal Code, to read: 12403.7. Notwithstanding any other law, any person may purchase, possess, or use tear gas and tear gas weapons for the projection or release of tear gas if the tear gas and tear gas weapons are used solely for self-defense purposes, subject to the following requirements: (a) No person convicted of a felony or any crime involving an assault under the laws of the United States, the State of California, or any other state, government, or country or convicted of misuse of tear gas under subdivision (g) shall purchase, possess, or use tear gas or tear gas weapons. (b) No person who is addicted to any narcotic drug shall purchase, possess, or use tear gas or tear gas weapons. (c) No person shall sell or furnish any tear gas or tear gas weapon to a minor. (d) No person who is a minor shall purchase, possess, or use tear gas or tear gas weapons. (e) (1) No person shall purchase, possess, or use any tear gas weapon that expels a projectile, or that expels the tear gas by any method other than an aerosol spray, or that contains more than 2.5 ounces net weight of aerosol spray. (2) Every tear gas container and tear gas weapon that may be lawfully purchased, possessed, and used pursuant to this section shall have a label that states: "WARNING: The use of this substance or device for any purpose other than self-defense is a crime under the law. The contents are dangerous--use with care." (3) After January 1, 1984, every tear gas container and tear gas weapon that may be lawfully purchased, possessed, and used pursuant to this section shall have a label that discloses the date on which the useful life of the tear gas weapon expires. (4) Every tear gas container and tear gas weapon that may be lawfully purchased pursuant to this section shall be accompanied at the time of purchase by printed instructions for use. (f) Effective March 1, 1994, every tear gas container and tear gas weapon that may be lawfully purchased, possessed, and used pursuant to this section shall be accompanied by an insert including directions for use, first aid information, safety and storage information, and explanation of the legal ramifications of improper use of the tear gas container or tear gas product. (g) Any person who uses tear gas or tear gas weapons except in self-defense is guilty of a public offense and is punishable by imprisonment in a state prison for 16 months, or two or three years or in a county jail not to exceed one year or by a fine not to exceed one thousand dollars ($1,000), or by both the fine and imprisonment, except that, if the use is against a peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2, engaged in the performance of his or her official duties and the person committing the offense knows or reasonably should know that the victim is a peace officer, the offense is punishable by imprisonment in a state prison for 16 months or two or three years or by a fine of one thousand dollars ($1,000), or by both the fine and imprisonment. (h) This section shall become operative January 1, 2007. SEC. 3. No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.