BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Gloria Romero, Chair A
2007-2008 Regular Session B
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AB 2470 (Karnette) 0
As Amended June 16, 2008
Hearing date: June 24, 2008
Penal Code
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IMITATION FIREARMS AND LESS LETHAL WEAPONS AT
COLLEGES AND UNIVERSITIES
HISTORY
Source: California College & University Police Chiefs
Association
Prior Legislation: AB 2537 (Montanez) - 2006, died in Senate
Appropriations Committee
Support: California Teachers Association; California State
University, Long Beach University Police; California
State University, East Bay University Police
Department; Los Angeles County District Attorney's
Office; Loma Linda University Health Services;
Department of Security; Napa Valley College Police
Department; Tom Bauer, Director of Public Safety,
Westmont College; University of California; Vanguard
University of Southern California; West Valley Mission
College District Police; Yuba Community College
District Police Department
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Opposition:None known
Assembly Floor Vote: Ayes 77 - Noes 0
KEY ISSUES
SHOULD ANY PERSON WHO, WITHOUT THE WRITTEN PERMISSION OF THE COLLEGE
OR UNIVERSITY PRESIDENT OR CHANCELLOR OR HIS OR HER DESIGNEE, BRINGS
OR POSSESSES A LESS LETHAL WEAPON, (I.E., A REMOTE STUN GUN OR
TASER), OR A STUN GUN, AS DEFINED, UPON THE GROUNDS OF, OR WITHIN A
PUBLIC OR PRIVATE COLLEGE OR UNIVERSITY CAMPUS BE GUILTY OF A
MISDEMEANOR, PUNISHABLE BY UP TO SIX MONTHS IN JAIL, A FINE OF UP TO
$1,000, OR BOTH?
SHOULD PUBLICLY DISPLAYING AN IMITATION FIREARM ON A PUBLIC OR
PRIVATE COLLEGE OR UNIVERSITY CAMPUS WITHOUT AUTHORIZATION, SUBJECT
TO SPECIFIED EXCEPTIONS, BE PUNISHABLE AS AN INFRACTION BY A FINE OF
$100 FOR THE FIRST OFFENSE, $300 FOR A SECOND OFFENSE, AND A THIRD
OR SUBSEQUENT VIOLATION OF THIS SECTION IS PUNISHABLE AS A
MISDEMEANOR, BY UP TO SIX MONTHS IN COUNTY JAIL, A FINE OF $1000, OR
BOTH?
PURPOSE
The purpose of this bill is to (1) provide that any person who,
without the written permission of the college or university
president or chancellor or his or her designee, brings or
possesses a less lethal weapon, (i.e., a remote stun gun or
taser), or a stun gun, as defined, upon the grounds of or within
a public or private college or university campus is guilty of a
misdemeanor, punishable by up to six months in jail, a fine of
up to $1,000, or both, and (2) provide that publicly displaying
an imitation firearm on a public or private college or
university campus without authorization, subject to specified
exceptions, would be punishable as an infraction by a fine of
$100 for the first offense, $300 for a second offense, and a
third or subsequent violation of this section is punishable as a
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misdemeanor, by up to six months in county jail, a fine of
$1000, or both.
Existing law defines "stun gun" to include any item, except a
taser, used or intended to be used as either an offensive or
defensive weapon capable of temporarily immobilizing a person by
the infliction of an electrical charge. (Penal Code 12650.)
Existing law defines "less lethal weapon" as any device that is
designed to or that has been converted to expel or propel less
lethal ammunition by any action, mechanism, or process for the
purpose of incapacitating, immobilizing, or stunning a human
being through the infliction of any less than lethal impairment
of physical condition, function, or senses, including physical
pain or discomfort. It is not necessary that a weapon leave any
lasting or permanent incapacitation, discomfort, pain, or other
injury or disability in order to qualify as a less lethal
weapon. (Penal Code 12601.)
Existing law defines an imitation firearm as any BB device,
toy gun, replica of a firearm, or other device that is so
substantially similar in coloration and overall appearance
to an existing firearm as to lead a reasonable person to
perceive that the device is a firearm. (Penal Code
12550(c).)
Existing law provides that every person who, except in
self-defense, draws or exhibits an imitation firearm, as
defined, in a threatening manner against another in such a way
as to cause a reasonable person apprehension or fear of bodily
harm is guilty of a misdemeanor punishable by imprisonment in a
county jail for a term of not less than 30 days and not more
than 6 months. (Penal Code 417.4.)
Existing law provides that possession of an imitation firearm
while on school grounds, while going to or coming from school,
during the lunch period whether on or off the campus, during,
or while going to or coming from a school sponsored activity,
or if the possession is otherwise related to school activity
or school attendance, is grounds for expulsion. (Education
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Code 48900.)
Existing law provides that no person may openly display or
expose any imitation firearm in a public place, as defined,
punishable as an infraction by a fine of $100 for the first
offense, $300 for a second offense and a third or subsequent
violation of this section is punishable as a misdemeanor, by up
to six months in county jail, a fine of $1000, or both. These
provisions shall not apply when the imitation firearm is:
packaged or concealed so that it is not subject
to public viewing;
displayed or exposed in the course of commerce,
including commercial film or video productions, or
for service, repair, or restoration of the imitation
firearm;
used in a theatrical production, a motion
picture, video, television, or stage production;
used in conjunction with a certified or regulated
sporting event or competition;
used in conjunction with lawful hunting, or
lawful pest control activities;
used or possessed at certified or regulated
public or private shooting ranges;
used at fairs, exhibitions, expositions, or other
similar activities for which a permit has been
obtained from a local or state government;
used in military, civil defense, or civic
activities, including flag ceremonies, color guards,
parades, award presentations, historical
reenactments, and memorials;
used for public displays authorized by public or
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private schools or displays that are part of a museum
collection;
used in parades, ceremonies, or other similar
activities for which a permit has been obtained from
a local or state government;
displayed on a wall plaque or in a presentation case;
used in areas where the discharge of a firearm is
lawful; and
a device where the entire exterior surface of
the device is white, bright red, bright orange,
bright yellow, bright green, bright blue, bright
pink, or bright purple, either singly or as the
predominant color in combination with other colors
in any pattern, or where the entire device is
constructed of transparent or translucent materials
which permits unmistakable observation of the
device's complete contents. Merely having an
orange tip as provided in federal law and
regulations does not satisfy this requirement . The
entire surface must be colored or transparent or
translucent.
For purposes of this law, a "public place" is defined as an area
open to the public and includes streets, sidewalks, bridges,
alleys, plazas, parks, driveways, front yards, parking lots,
automobiles, whether moving or not, and buildings open to the
general public, including those that serve food or drink, or
provide entertainment, and the doorways and entrances to
buildings or dwellings. (Penal Code 12556, emphasis added.)
Existing Federal Law requires that no person shall manufacture,
enter into commerce, ship, transport, or receive any toy,
look-alike, or imitation firearm ("device"), as defined, unless
such device contains, or has affixed to it a bright orange
marking, as specified, covering the circumference of the barrel
from the muzzle end for a depth of at least 6 millimeters,
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unless exempted, as specified. (15 Code of Federal Regulations
1150.2, 1150.3.)
Existing law provides that every person who sells to a minor any
BB device is guilty of a misdemeanor. (Penal Code 12551.)
Existing law provides that every person who furnishes any BB
device to a minor, without the express or implied permission of
the parent or legal guardian of the minor, is guilty of a
misdemeanor. (Penal Code 12552(a).)
This bill would provide that any person who, without the written
permission of the college or university president or chancellor
or his or her designee, brings or possesses a less lethal
weapon, as defined, or a stun gun, as defined, upon the grounds
of or within a public or private college or university campus is
guilty of a misdemeanor, punishable by up to six months in jail,
a fine of up to $1,000, or both.
This bill would apply the current infraction/misdemeanor
penalties for open display of an imitation firearm to include at
any public or private college or university.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
California continues to face an extraordinary and severe prison
and jail overcrowding crisis. California's prison capacity
remains nearly exhausted as prisons today continue to be
operated with a significant level of overcrowding.<1> A year
ago, the Legislative Analyst's office summarized the trajectory
of California's inmate population over the last two decades:
During the past 20 years, jail and prison
populations have increased significantly. County
jail populations have increased by about 66
percent over that period, an amount that has been
limited by court-ordered population caps. The
--------------------
<1> Analysis of the 2007-08 Budget Bill: Judicial and Criminal
Justice, Legislative Analyst's Office (February 21, 2007); see
also, court orders, infra.
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prison population has grown even more dramatically
during that period, tripling since the
mid-1980s.<2>
The level of overcrowding, and the impact of the population
crisis on the day-to-day prison operations, is staggering:
As of December 31, 2006, the California Department
of Corrections and Rehabilitation (CDCR) was
estimated to have 173,100 inmates in the state
prison system, based on CDCR's fall 2006
population projections. However, . . . the
department only operates or contracts for a total
of 156,500 permanent bed capacity (not including
out-of-state beds, . . . ), resulting in a
shortfall of about 16,600 prison beds relative to
the inmate population. The most significant bed
shortfalls are for Level I, II, and IV inmates, as
well as at reception centers. As a result of the
bed deficits, CDCR houses about 10 percent of the
inmate population in temporary beds, such as in
dayrooms and gyms. In addition, many inmates are
housed in facilities designed for different
security levels. For example, there are currently
about 6,000 high security (Level IV) inmates
housed in beds designed for Level III inmates.
. . . (S)ignificant overcrowding has both
operational and fiscal consequences. Overcrowding
and the use of temporary beds create security
concerns, particularly for medium- and
high-security inmates. Gyms and dayrooms are not
designed to provide security coverage as well as
in permanent housing units, and overcrowding can
contribute to inmate unrest, disturbances, and
assaults. This can result in additional state
costs for medical treatment, workers'
compensation, and staff overtime. In addition,
--------------------
<2> California's Criminal Justice System: A Primer.
Legislative Analyst's Office (January 2007).
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overcrowding can limit the ability of prisons to
provide rehabilitative, health care, and other
types of programs because prisons were not
designed with sufficient space to provide these
services to the increased population. The
difficulty in providing inmate programs and
services is exacerbated by the use of program
space to house inmates. Also, to the extent that
inmate unrest is caused by overcrowding,
rehabilitation programs and other services can be
disrupted by the resulting lockdowns.<3>
As a result of numerous lawsuits, the state has entered into
several consent decrees agreeing to improve conditions in the
state's prisons. As these cases have continued over the past
several years, prison conditions nonetheless have failed to
improve and, over the last year, the scrutiny of the federal
courts over California's prisons has intensified.
The federal court has appointed a receiver to take over the
direct management and operation of the prison medical health
care delivery system from the state. The crisis has continued
to escalate and, in July of last year, the federal court
established a three-judge panel to consider placing a cap on the
number of prisoners allowable in California prisons. It is
anticipated that the court will reach its decision this year.
In his order establishing the judicial panel, Judge Thelton
Henderson stated in part:
It is clear to the Court that the crowded conditions
of California's prisons, which are now packed well
beyond their intended capacity, are having - and in
the absence of any intervening remedial action, will
continue to have - a serious impact on the Receiver's
ability to complete the job for which he was
appointed: namely, to eliminate the unconstitutional
conditions surrounding delivery of inmate medical
health care.
----------------------
<3> Analysis 2007-08 Budget Bill, supra, fn. 1.
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. . . (T)his case is also somewhat unique in that even
Defendants acknowledge the seriousness of the
overcrowding problem, which led the Governor to declare
a state of emergency in California's prisons in October
2006. While there remains dispute over whether crowded
conditions are the primary cause of the constitutional
problems with the medical health care system in
California prisons, or whether any relief other than a
prisoner release order will remedy the constitutional
deprivations in this case, there can be no dispute that
overcrowding is at least part of the problem. . . .
The record is equally clear that the Receiver will be
unable to eliminate the constitutional deficiencies at
issue in this case in a reasonable amount of time
unless something is done to address the crowded
conditions in California's prisons. This Court
therefore believes that a three-judge court should
consider whether a prisoner release order is warranted
. . . . (Hon. Thelton Henderson, Order dated July 23,
2007 in Plata v. Schwarzenegger (N.D. Cal) No. C01-1351
TEH (citations omitted).)
Similarly, Judge Lawrence Karlton stated:
There is no dispute that prisons in California are
seriously and dangerously overcrowded. () The
record suggests there will be no appreciable change
in the prison population in the next two years.
(Hon. Lawrence K. Karlton, Senior Judge, United
States District Court, Order dated July 23, 2007 in
Coleman v. Schwarzenegger (E.D. Cal.) No. S90-0520
LKK JFM P (citations omitted).)
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
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1. Need for This Bill
According to the author:
This bill seeks to curb the use of BB guns, stun guns
and similar weapons on all California college and
university campuses. Current law specifically bans
these weapons on all K-12 school campuses, but does
not ban them on college and university campuses.
Several instances of college campus gun violence in
recent years have put campus police and students on
higher alert of the possibility of similar gun
violence instances occurring on their campuses.
Recognizing this threat, campus police have taken
extensive training courses focused on gun violence
situational response and must be on constant alert in
hope of preventing such a situation. Allowing the
possession or public display of weapons that resemble
and very often mistaken to be "real" guns puts college
students, faculty and campus staff in danger. The
display of these weapons will illicit the same
response from students and campus police that a real
gun would cause, leading to a very dangerous situation
that may put lives at risk.
Our students, faculty, and campus staff deserve a safe
and gun-free learning environment. This bill seeks to
help accomplish that by banning the possession of
tasers or stun guns and prohibiting the open display
of imitation fire arms, such as BB or replica guns, on
all college and university campuses.
2. Current Law on Imitation Firearms
There are several existing statutes which address imitation
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firearms. An imitation firearm is defined in current law as
"any BB device, toy gun, replica of a firearm, or other device
that is so substantially similar in coloration and overall
appearance to an existing firearm as to lead a reasonable person
to perceive that the device is a firearm." (Penal Code
12550(c).) Under current law, if a person, except in
self-defense, draws or exhibits an imitation firearm in a
threatening manner against another in such a way as to cause a
reasonable person apprehension or fear of bodily harm is guilty
of a misdemeanor punishable by a mandatory county jail term of
30 days, up to 6 months in jail, a fine of $1000, or both.
(Penal Code 417.4.) Thus, where a student brandishes an
imitation firearm, such as an Airsoft gun in a threatening
manner on a college or university campus, this is a violation of
Penal Code Section 417.4, which carries a mandatory jail
sentence.
In addition, current law makes it a crime to publicly display an
imitation firearm, whether or not it fires a projectile. This
offense is punishable by a $100 fine on the first offense and
increases to $300 on the second offense and up to six months in
county jail for a third offense. (Penal Code 12556.) This
statute's definition of public place would not clearly include a
public or private college or university campus. This bill would
amend the definition of public place, for purposes of the
prohibition on public display of an imitation firearm, to
include a college or university campus.
3. Bringing Imitation Firearms on A College or University Campus
Imitation firearms, marketed under the name Airsoft, and others,
are designed to look nearly identical to real firearms,
including assault weapons. Below are photos taken from the
Airsoft Web site of their model M16A4 (With Double Flashlights &
Laser &Adjustable Stock) (above) and model MP5 (below).
(http://www.airsoft.com/.)
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These imitation firearms not only closely resemble
military-style weapons, but also fire a plastic projectile.
According to the online encyclopedia Wikipedia, Airsoft
imitation firearms fire a 6mm or 8mm spherical projectile
available in many different weights ranging from .12 grams to
.88 grams.
Due to the high speed of the BBs (which may exceed 480
fps or 146 m/s in some cases) many players opt to wear
military BDUs for more than just cosmetic reasons.
These thicker clothes help protect from potentially
painful welts that might be caused by the impact of a
BB from a "high" (400-550 FPS) velocity gun at shorter
ranges, but may somewhat hinder one's ability to
determine if they've been hit by a "standard" (275-350
FPS) velocity gun at longer ranges. Also, protective
glasses or goggles are a minimum requirement to play
and virtually all players absolutely refuse to play
without proper eye protection. If one is shot in the
naked eye with an airsoft gun, it will almost
assuredly seriously injure their eye, and the player
runs the risk of losing vision in that eye.
(http://en.wikipedia.org/wiki/Airsoft)
A July 14, 2004, story in the Campbell Reporter , in Campbell,
California, describes some of the problems caused by imitation
firearms being brought to schools in that area in recent years.
On March 29, Leigh High School, in the Campbell Union
High School District, experienced a lockdown, as a
youth brandishing what looked like a weapon was seen
walking toward the campus in the early morning. When
the boy was found, police discovered that the gun in
his hand was an Airsoft gun.
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In Morgan Hill earlier this year, a SWAT team was
called out to an elementary school playground filled
with parents watching their children practicing Little
League baseball. The police received calls from
panicked 911 callers that four children wearing masks
and holding guns were on an adjacent field. When the
police caught up with them, they found that the boys
were merely holding Airsoft guns, too.
And in the Orchard City, a boy at Campbell Middle
School had a gun confiscated from him after he had
brought it on campus to show off to his friends.
Although by law any replica of a firearm must have a
bright orange tip to distinguish it from a real gun,
Guerrero says, the realism of the models has gotten so
accurate that police are finding it more difficult to
tell if a gun is real or fake. To make matters worse,
these Airsoft gun owners often paint over the orange
tip with black markers to give the facsimile a more
realistic appearance.
And with memories of the disaster at Columbine High
School in Colorado fresh on their minds, police are
under greater pressure to take quick action on
potentially dangerous situations involving guns, which
can result in officers drawing their own weapons.
"People need to understand that if other people see the
gun and think it's real, the police will probably think
it's real, too," says Guerrero.
Although there has been only one incident in Campbell,
Guerrero says, "The popularity of the hobby is growing,
and we're only going to see more of them as time goes by."
(http://www.svcn.com/archives/campbellreporter/20040714/ca-
cover1.shtml)
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As noted above, any person who draws or brandishes any type of
imitation firearm, whether it fires a projectile or not, in a
threatening manner toward any other person is guilty of a
misdemeanor punishable by a mandatory 30-day jail sentence and
can receive up to 6 months in jail. (Penal Code 417.4.)
However, bringing an imitation firearm onto a college or
university campus, even if not pointed at someone in a
threatening manner, could cause considerable panic and
disruption, and possible tragedy, if someone mistook the device
for a real firearm.
Imitation firearms are legal to possess, however, and students
at college campuses may be involved in perfectly legal games or
competitions that involve use of Airsoft guns or paintball guns
and might bring one to campus not realizing the potential for
harm if such items are mistaken for real firearms. This bill
appears to strike a balance by making the penalties for
displaying an imitation firearm, without actually pointing it at
anyone, punishable as an infraction by a fine of $100 for the
first offense, $300 for a second offense and a third or
subsequent violation of this section is punishable as a
misdemeanor, by up to six months in county jail, a fine of
$1000, or both. Exceptions would also apply for, e.g., use of
imitation firearms in theatrical productions.
SHOULD THE PUBLIC DISPLAY OF AN IMITATION FIREARM AT A COLLEGE
OR UNIVERSITY CARRY THESE GRADUATED PENALTIES?
4. Bringing Less Lethal Weapons and Stun Guns on College
Campuses
Less lethal weapons, sometime called remote stun guns or tasers
are devices intended to incapacitate a person or animal through
use of electric shock. They are hand-held devices that resemble
a small handgun and propel two barbs from the front of the
weapon when the trigger is pulled. The barbs are intended to
penetrate and attach to skin or clothing. Removing the barbs
usually requires medical assistance. Models currently in use
send 50,000 volts of electrical current through wires connecting
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the device to the barbs. The current flows into the body
causing extreme pain and a loss of muscular control. One
manufacturer of remote stun guns is Taser International. Taser
International's primary competitor, Stinger Systems, has a
similar product on the market but Stinger Systems states that
its products are sold only to law enforcement officers, security
companies and the military.
( http://www.stingersystems.com/stinger.htm ) Taser International
has several models of remote stun guns currently on the market
specifically designed for use by private citizens, including one
recently released model with a leopard skin exterior and a
holster with a built-in music player.
( http://www.taser.com/Pages/default.aspx ) Some models also are
convertible into "stun guns," which require direct contact of
the gun's handset to a person's body and two fixed electrodes
pass the current pulses into the subject. Some models have only
the characteristics of a stun gun and do not propel a
projectile.
This bill would also provide that bringing a less lethal weapon
or a stun gun on a university or college would be misdemeanor,
punishable by up to one year in county jail, a fine of up to
$1,000, or both.
SHOULD UNAUTHORIZED POSSESSION OF A LESS LETHAL WEAPON OR A STUN
GUN BE PROHIBITED ON COLLEGE CAMPUSES?
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