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