BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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SB 798 (De León)
As Amended April 13, 2011
Hearing date: April 26, 2011
Penal Code
SM:mc
IMITATION FIREARMS AND BB GUNS: COLORATION
HISTORY
Source: Los Angeles Chief of Police
Prior Legislation: AB 352 (Solorio) - Ch. 422, Stats. 2008
AB 2537 (Montanez) - 2006, held in Senate
Appropriations
SB 1858 (Dunn) - Ch. 607, Stats. 2004
SB 292 (Roberti) - Ch. 598, Stats. 1993
Support: Women Against Gun Violence
Opposition:California Rifle and Pistol Association; National
Rifle Association; California Association of Firearms
Retailers; National Shooting Sports Foundation, Inc.
KEY ISSUE
SHOULD "BB" DEVICES BE INCLUDED WITHIN REQUIREMENTS PERTAINING TO
"IMITATION FIREARMS" THAT ARE PROHIBITED FOR MANUFACTURE OR SALE IN
CALIFORNIA UNLESS THE ENTIRE EXTERIOR SURFACE OF THE DEVICE IS
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BRIGHTLY COLORED, AS SPECIFIED?
PURPOSE
The purpose of this bill is to include 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.
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 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.)
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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 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.)
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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.
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.)
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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 would include 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, as provided by federal regulations governing imitation
firearms.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
As these cases have progressed, prison conditions have
continued to be assailed, and the scrutiny of the federal courts
over California's prisons has intensified.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
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District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On Monday, June 14, 2010, the U.S. Supreme Court agreed to hear
the state's appeal of this order and, on Tuesday, November 30,
2010, the Court heard oral arguments. A decision is expected as
early as this spring.
In response to the unresolved prison capacity crisis, in early
2007 the Senate Committee on Public Safety began holding
legislative proposals which could further exacerbate prison
overcrowding through new or expanded felony prosecutions.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
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
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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
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.
2. BB Guns - Background
BB Pistol with CO2 magazines and BBs. It can shoot at up to 150
meters per second.
According to Wikipedia:
BB guns are a type of air gun designed to shoot
projectiles named BBs after the birdshot pellet of
approximately the same size. These projectiles are
usually spherical but can also be pointed; those are
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usually used for bird hunting. Modern day BB guns
usually have a smoothbore barrel , with a bore diameter
and caliber of 0.177 inches (4.5 mm). BBs for modern
day BB guns are usually steel , plated either with zinc
or copper to resist corrosion, and measure 0.171 to
0.173 inches (4.34 mm to 4.39 mm) in diameter. Some
manufacturers also still make lead balls of slightly
larger diameter and which are generally intended for
use in rifled BB gun barrels, as were formerly used in
BB guns. Some Asian companies make plastic BBs for
recreation.
One of the most famous BB guns is the Red Ryder BB Gun
by Daisy Outdoor Products , modeled after the western
Winchester rifle. First introduced in 1938, the BB
gun became an iconic American toy, and is still in
production today.
Airsoft guns are also commonly referred to as BB guns
or pellet guns, as they also launch spherical
projectiles (typically through a smoothbore barrel).
Common airsoft "BBs" are 6 mm in diameter (0.24
inches), and are generally made of plastic or other
non-metallic materials specifically designed to impart
low target damage (however, such can still be
dangerous if carelessly or improperly used). Airsoft
projectiles are often employed for wargames similar to
paintball . ( http://en.wikipedia.org/wiki/BB_gun )
3. Problems Posed by Imitation Firearms
This past December the Los Angeles Times reported:
The shooting of a 13-year-old Glassell Park boy
carrying what turned out to be a pellet gun by a Los
Angeles Police Department officer is a "tragedy,"
Chief Charlie Beck said.
"This is a tragedy for all involved, but in particular
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for the young man injured in this police shooting and
for the officer who believed that he was protecting
himself and his partner from a real threat," Beck said
in a statement. "The pellet gun the juvenile was
using is the exact dimensions of a Beretta 92F and is
indistinguishable from a real handgun on a dark
night."
The chief added: "We have seen far too much heartbreak
involving these types of realistic-looking guns that
are labeled as toys."
The incident occurred about 7:50 p.m. Thursday when
two LAPD officers on routine patrol in the 3000 block
of North Verdugo Road saw three pedestrians in the
middle of the street and stopped to investigate. The
three people ran, with one ending up behind a van.
The officers got out of their patrol car, and one of
them, Officer Victor Abarca, shined a flashlight on
the person behind the van and ordered him to
surrender. Based on the person's 5-foot-7, 200-pound
frame, Abarca assumed that he was a young adult male.
Police said the boy refused to comply and instead
produced what was later found to be a fake Beretta 92F
handgun. Abarca fired his gun, striking the boy. Los
Angeles Fire Department personnel responded and took
the boy to a hospital, where he underwent surgery and
was listed in critical but stable condition.
After the shooting, Abarca and rescue personnel were
stunned to learn that the wounded male was, in fact,
just 13. The other two youths, ages 13 and 14, were
detained without incident after dropping their fake
handguns. Three faux weapons were recovered.
Detectives from the LAPD's force investigation
division responded to the scene. Police said they had
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determined that the subjects had been playing in the
dark street, shooting pellets at one another with the
fake handguns. They said they anticipated that no
criminal charges would be filed against any of the
three juveniles. (LAPD shooting of 13-year-old with
pellet gun is a 'tragedy,' Chief Beck says, Los
Angeles Times, December 18, 2010.
http://latimesblogs.latimes.com/lanow/2010/12/lapd-shoo
ting-of-13-year-old-with-pelet-gun-tragedy-for-all-invo
lved-chief-beck-says.html )
DO BB GUNS POSE THE SAME DANGER OF BEING MISTAKEN FOR A REAL
FIREARM AS OTHER IMITATION FIREARMS?
SHOULD THE SAME COLORATION REQUIREMENTS APPLY TO BB GUNS AS
CURRENTLY APPLY TO OTHER IMITATION FIREARMS?
4. Federal Preemption Issues
State or local laws that "interfere with, or are contrary to"
Federal law are invalid under the Supremacy Clause of the United
States Constitution. (US Const., Art VI, cl (2)). This is
known as the doctrine of preemption. One issue raised by this
bill is whether it would be preempted by the Federal Toy Gun Law
of 1988. (15 USC § 5001 and its implementing regulations, 15
CFR 1150.1 et seq.)
Federal law, the Federal Toy Gun Law, regulates the manufacture
of and interstate commerce in "look-alike" or imitation
firearms. (15 USC § 5001.) Federal law requires that "each
toy, look-alike, or imitation firearm shall have as an integral
part, permanently affixed, a blaze orange plug inserted in the
barrel of such toy, look-alike, or imitation firearm. Such plug
shall be recessed no more than 6 millimeters from the muzzle end
of the barrel of such firearm." (15 USC § 5001(b)(1).)
However, these requirements do not apply to any ". . .
traditional B-B, paint-ball, or pellet-firing air guns that
expel a projectile through the force of air pressure." (15 USC
§ 5001(c).)
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The Federal Toy Gun Law specifically addresses the issue of
preemption. It states:
The provisions of this section shall supersede any
provision of State or local laws or ordinances which
provide for markings or identification inconsistent
with provisions of this section provided that no State
shall--
(i) prohibit the sale or manufacture of any
look-alike, nonfiring, collector replica of an antique
firearm developed prior to 1898, or
(ii) prohibit the sale (other than prohibiting the
sale to minors) of traditional B-B, paint ball, or
pellet-firing air guns that expel a projectile through
the force of air pressure. (15 USCS § 5001(g).)
The question this raises is whether the provisions of this bill
are inconsistent with the federal law. The New York State Court
of Appeal has addressed this issue in relation to a local
ordinance similar to SB 798. The City of New York passed an
ordinance which prohibited look-alike or imitation firearms
unless "the entire exterior surface of such toy or imitation
firearm is colored 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 such toy or imitation firearm is
constructed entirely of transparent or translucent materials
which permits unmistakable observation of the imitation or toy
firearm's complete contents" as well as other requirements.
(NYC Administrative Code 10-131.) In response to the claim of
one manufacturer that the New York City ordinance was preempted
by Federal Toy Gun Law, the Court stated:
The Federal Toy Gun Law only supersedes State or local
laws that "provide for markings or identification
inconsistent with" its terms. The additional
conditions imposed by Administrative Code § 10-131 (g)
do not conflict with the conditions enumerated in the
Federal Toy Gun Law. As the Appellate Division noted
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"it is feasible to make a red or purple toy gun Ýwhich
bears the manufacturer's trade name and contains] an
orange Ýplug], thus satisfying both laws". Therefore,
it is not impossible to comply with both the Federal
Toy Gun Law and Administrative Code § 10-131 (g).
That the sale of JA-RU's toy guns is only illegal
under the terms of the local provision is not a basis
for preemption of the City law, as the dissenters
below opine, because "this general principle applies
only where the Legislature has shown its intent to
preempt the field." Indeed, compliance with both the
Federal and local laws at once furthers the intent of
Congress and achieves the public safety objective
underlying each measure. The Federal Toy Gun Law
seeks to impose some regulatory guidelines, in part,
to override local laws that completely banned toy guns
from certain jurisdictions. In response to these
local bans, the Hobby and Toy Industry of America and
the Toy Manufacturers of America pressed congressional
members for passage of the Federal Toy Gun Law, which
by its terms incorporates markings voluntarily adopted
by the industry. Against this backdrop, the Federal
Toy Gun Law is not an attempt to dominate the field.
States and localities can erect a regulatory framework
that expands upon the Federal foundation and to the
extent that Administrative Code § 10-131 (g)
complements the Federal Toy Gun Law, the City's
regulatory conditions can coexist with the Federal
statute. (City of New York v. Job-Lot Pushcart, 88
N.Y.2d 163, 170-171 (1996)) (citations omitted.)
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California, like the New York, already requires imitation
firearms to contain similar markings with bright colors
throughout the outer surface. (Penal Code § 16700.)
Heretofore, BB guns were specifically exempted from this
requirement. SB 798 would remove that exemption and require BB
guns to carry the same markings as other look-alike toy guns.
DOES THE FEDERAL TOY GUN LAW PREEMPT LOCAL LAWS REQUIRING
ADDITIONAL MARKINGS ON IMITATION FIREARMS?
5. Argument 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
fire projectiles which have the potential to cause
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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.
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