BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                      



           ------------------------------------------------------------ 
          |SENATE RULES COMMITTEE            |                   SB 798|
          |Office of Senate Floor Analyses   |                         |
          |1020 N Street, Suite 524          |                         |
          |(916) 651-1520         Fax: (916) |                         |
          |327-4478                          |                         |
           ------------------------------------------------------------ 
           
                                         
                                 THIRD READING


          Bill No:  SB 798
          Author:   De León (D)
          Amended:  4/13/11
          Vote:     21

           
           SENATE PUBLIC SAFETY COMMITTEE  :  5-2, 4/26/11
          AYES:  Hancock, Calderon, Liu, Price, Steinberg
          NOES:  Anderson, Harman


           SUBJECT  :    Firearms:  BB devices:  imitation firearms

           SOURCE  :     Los Angeles Chief of Police


           DIGEST  :    This bill includes BB devices within 
          requirements pertaining to imitation firearms" that are 
          prohibited for manufacture or sale in California unless 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, as provided by federal regulations governing 
          imitation firearms, or where the entire device is 
          constructed of transparent or translucent materials which 
          permits unmistakable observation of the device's complete 
          contents, as specified.

           ANALYSIS  :    Current 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 
                                                           CONTINUED





                                                                SB 798
                                                                Page 
          2

          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, unless exempted, 
          as specified.  (15 United States Code section 5001, 15 Code 
          of Federal Regulations sections 1150.2, 1150.3.)  This 
          requirement does not apply to "traditional B-B, paint-ball, 
          or pellet-firing air guns that expel a projectile through 
          the force of air pressure."  (15 United States Code § 
          5001(c).)

          Current law prohibits, subject to specific exceptions, 
          purchase, sale, manufacture, shipping, transport, 
          distribution, or receipt, by mail order or in any other 
          manner, of an imitation firearm.  (Manufacture for export 
          is permitted.)  Violations are punishable by a civil fine 
          in an action brought by the city attorney or the district 
          attorney of up to $10,000 for each violation.  (Penal Code 
          § 20165.)

          Current law defines "imitation firearm" for most purposes 
          to mean 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. 
           However, for purposes of the prohibition on commercial 
          manufacture, sale, etc., "imitation firearm" does not 
          include any of the following: 

                 A nonfiring collector's replica that is 
               historically significant, and is offered for sale in 
               conjunction with a wall plaque or presentation case. 

                 A BB device. 

                 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, 
               as provided by federal regulations governing imitation 
               firearms, or where the entire device is constructed of 
               transparent or translucent materials which permits 
               unmistakable observation of the device's complete 
               contents, as provided by federal regulations governing 

                                                           CONTINUED





                                                                SB 798
                                                                Page 
          3

               imitation firearms.  (Penal Code § 16700.)

          Current law defines "BB device" as any instrument that 
          expels a projectile, such as a BB or a pellet, not 
          exceeding 6mm caliber, through the force of air pressure, 
          gas pressure, or spring action, or any spot marker gun.  
          (Penal Code § 16250.)

          Current law provides that sale of any BB device to a minor 
          is a misdemeanor, punishable by up to 6 months in county 
          jail, a fine of up to $1,000, or both.  (Penal Code § 
          19910.)

          Current law provides that every person who furnishes any BB 
          device to any minor, without the express or implied 
          permission of a parent or legal guardian of the minor, is 
          guilty of a misdemeanor, punishable by up to 6 months in 
          county jail, a fine of up to $1,000, or both.  (Penal Code 
          § 19915.)

          Current law provides that any person who changes, alters, 
          removes, or obliterates any coloration or markings that are 
          required by any applicable state or federal law or 
          regulation for any imitation firearm in a way that makes 
          the imitation firearm or device look more like a firearm, 
          is guilty of a misdemeanor.  This section does not apply to 
          a manufacturer, importer, or distributor of imitation 
          firearms.  This section does not apply to lawful use in 
          theatrical productions, including motion pictures, 
          television, and stage productions.  (Penal Code § 20150.)

          Current law provides that any imitation firearm 
          manufactured after July 1, 2005, shall, at the time of 
          offer for sale in this state, be accompanied by a 
          conspicuous advisory in writing as part of the packaging, 
          but not necessarily affixed to the imitation firearm, to 
          the effect that the product may be mistaken for a firearm 
          by law enforcement officers or others, that altering the 
          coloration or markings required by state or federal law or 
          regulations so as to make the product look more like a 
          firearm is dangerous, and may be a crime, and that 
          brandishing or displaying the product in public may cause 
          confusion and may be a crime. 


                                                           CONTINUED





                                                                SB 798
                                                                Page 
          4

          Any manufacturer, importer, or distributor that fails to 
          comply with this advisory for any imitation firearm 
          manufactured after July 1, 2005, shall be liable for a 
          civil fine for each action brought by a city attorney or 
          district attorney of not more than one thousand dollars 
          ($1,000) for the first action, five thousand dollars 
          ($5,000) for the second action, and ten thousand dollars 
          ($10,000) for the third action and each subsequent action. 
          (Penal Code § 20160.)

          Current law provides that no person may openly display or 
          expose any imitation firearm in a public place, as defined. 
           (Penal Code § 20170.)  A violation is an infraction 
          punishable by a fine of $100 for the first offense, and 
          $300 for a second offense.  A third or subsequent violation 
          is punishable as a misdemeanor.  (Penal Code § 20180.)

          Current 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.  (Penal Code § 417.4.)

          Current 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 Code § 48900(m).)

          This bill includes BB guns within the current requirements 
          pertaining to "imitation firearms" that are prohibited for 
          manufacture or sale in California unless 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, as 
          provided by federal regulations governing imitation 
          firearms, or where the entire device is constructed of 
          transparent or translucent materials which permits 
          unmistakable observation of the device's complete contents, 

                                                           CONTINUED





                                                                SB 798
                                                                Page 
          5

          as provided by federal regulations governing imitation 
          firearms.

           Prior Legislation
           
          AB 352 (Solorio), Chapter 422, Statutes of 2008
          SB 1858 (Dunn), Chapter 607, Statutes of 2004
          SB 292 (Roberti), Chapter 598, Statutes of 1993

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  No   
          Local:  No

           SUPPORT  :   (Verified  4/27/11)

          Los Angeles Chief of Police (source) 
          Los Angeles Mayor Antonio Villaraigosa
          Women Against Gun Violence

           OPPOSITION  :    (Verified  4/27/11)

          National Rifle Association
          California Association of Firearms Retailers
          National Shooting Sports Foundation, Inc.

           ARGUMENTS IN SUPPORT  :    According to the author's office:

               SB 798 was introduced at the request of Los Angeles 
               Police Chief Charlie Beck to protect Californians, 
               especially law enforcement officers, from the threat 
               and dangers caused by fake firearms such as BB guns.  
               The accidental shooting of residents, especially 
               minors and young adults, by law enforcement officers 
               and others is a public safety problem.  This problem 
               must be addressed as these fake guns are often 
               indistinguishable from real guns and the Legislature 
               must act swiftly in order to protect the lives of the 
               public and the brave men and women of law enforcement.

               SB 798 will amend Penal Code Section 16700 to require 
               BB guns to be included in the laws and regulations set 
               forth for imitation firearms.  The incorporation of BB 
               guns into the laws that governs firearms will help to 
               make these fake guns distinguishable from real guns 
               and reduce the proliferation of these fake guns into 

                                                           CONTINUED





                                                                SB 798
                                                                Page 
          6

               our communities.

               Under existing law, any person who changes, alters, 
               removes, or obliterates any coloration or markings 
               that are required by any applicable state or federal 
               law or regulation is guilty of a misdemeanor.  
               Additionally, the Penal Code regulates the selling, 
               distribution, manufacturing and transportation of 
               imitation firearms and only provides exemptions for 
               interstate commerce or foreign trade, motion picture 
               and theatrical performances, sporting and ceremonial 
               activities.  Given the strict restrictions placed upon 
               imitation firearms, BB guns should also adhere to 
               these restrictions because similar to imitation 
               firearms, they illicit the same threats and dangers as 
               real guns.

           ARGUMENTS IN OPPOSITION  :    The National Shooting Sports 
          Foundation, Inc., states:

               In 2004, legislation (SB 1858, Dunn - Imitation 
               firearms) was carefully crafted by a working group 
               comprised of industry, the Department of Justice, and 
               law enforcement representatives.

               It was clear from the outset that all parties wanted 
               to create legislation that would respond to an 
               identified specific problem while recognizing, 
               preserving and protecting the legitimate ceremonial, 
               theatrical, recreational and sporting uses of these 
               imitation firearms and BB devices throughout 
               California.

               Specifically, the identified problem was confusion 
               created among law enforcement officers by some 
               imitation firearm products which, because of their 
               unique coloration and features, were not easily 
               distinguishable from BB devices or real firearms.  
               This confusion, it was feared, could lead to an 
               accidental shooting of a child or other person when an 
               officer responds in the field.

               The term "imitation firearm" includes BB Devices, but 
               it also includes products like toy guns that do not 

                                                           CONTINUED





                                                                SB 798
                                                                Page 
          7

               fire projectiles which have the potential to cause 
               injury.

               While BB devices are not firearms, they do propel 
               projectiles that can result in injury if the BB device 
               is improperly used.  They are not toys and should not 
               be treated as such.  

               In recognition of the above, BB device manufacturers 
               include warnings with their products that they are not 
               toys and that their improper use can result in injury.

               If it is required by statute to color them like toys, 
               as proposed in SB 798, a dangerous risk of injury will 
               be created because users could view them as toys and 
               treat them accordingly.  In fact, SB 798 could 
               unintentionally promote the use of BB devices as if 
               they are toys.
           
           
          RJG:nl  4/27/11   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

                                ****  END  ****




















                                                           CONTINUED