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.
               ***************