BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  SB 1315
                                                                  Page  1

          Date of Hearing:   July 3, 2012
          Counsel:                Milena Blake


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                   SB 1315 (De Leon) - As Amended:  March 29, 2012

                                    FOR VOTE ONLY

           SUMMARY  :   Removes the state preemption of any local ordinances 
          regarding the manufacture, sale, or possession of imitation 
          firearms, BB devices, and air rifles within the County of Los 
          Angeles.  Specifically,  this bill  :  allows the County of Los 
          Angeles or any city within that county to enact and enforce an 
          ordinance or resolution that is more restrictive than state law 
          regulating the manufacture, sale, possession, or use of any BB 
          device, toy gun, replica of a firearm, or other device that 
          meets both of the following:

          1)The device 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; 
            and

          2)The device expels a projectile that is no more than 16 
            millimeters in diameter.  

           EXISTING LAW  :

          1)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. This requirement does not apply to 
            traditional BB, paint-ball, or pellet-firing air guns that 
            expel a projectile through the force of air pressure.  Ý15 
            U.S.C. Section 5001(a) to (c).]

          2)Preempts 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 








                                                                  SB 1315
                                                                  Page  2

            prohibit the sale or manufacture of any look-alike, nonfiring, 
            collector replica of an antique firearm developed prior to 
            1898, or prohibit the sale (other than prohibiting the sale to 
            minors) of traditional BB, paint ball, or pellet-firing air 
            guns that expel a projectile through the force of air 
            pressure.  Ý15 U.S.C. Section 5001(g).]

          3)States that the Legislature occupies the whole field of 
            regulation of the manufacture, sale, or possession of 
            imitation firearms, as specified, and that section shall 
            preempt and be exclusive of all regulations relating to the 
            manufacture, sale, or possession of imitation firearms, 
            including regulations governing the manufacture, sale, or 
            possession of BB devices and air rifles, as specified.  
            (Government Code Section 53071.5.)

          4)States that prohibitions on the sale, purchase, manufacture, 
            transportation, receipt or distribution for commercial 
            purposes does not apply to the following devices:

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

             b)   A BB device; or, 

             c)   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 
               Section 16700.) 

          5)Defines a "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.  ÝPenal Code Section 
            12001(g).]

          6)States that any person who, for commercial purposes, 








                                                                  SB 1315
                                                                  Page  3

            purchases, sells, manufactures, ships, transports, 
            distributes, or receives, by mail order or in any other 
            manner, an imitation firearm except as authorized by this 
            section shall be liable for a civil fine in an action brought 
            by the city attorney or the district attorney of not more than 
            $10,000 for each violation.  ÝPenal Code Section 12555(a).]

          7)Authorizes the manufacture, purchase, sale, shipping, 
            transport, distribution, or receipt, by mail or in any other 
            manner, of imitation firearms if the device is manufactured, 
            purchased, sold, shipped, transported, distributed, or 
            received for any of the following purposes:

             a)   Solely for export in interstate or foreign commerce;

             b)   Solely for lawful use in theatrical productions, 
               including motion picture, television, and stage 
               productions;

             c)   For use in a certified or regulated sporting event or 
               competition; 

             d)   For use in military or civil defense activities, or 
               ceremonial activities; or, 

             e)   For public displays authorized by public or private 
               schools.  ÝPenal Code Section 12555(b).]

          8)States that the sale of a BB device to a minor is a 
            misdemeanor.  (Penal Code Section 12551.)

          9)States that furnishing a BB device to a minor, including 
            loaning or transfer without a sale, is a misdemeanor.  (Penal 
            Code Section 12552.)

          10)States that any person who, for commercial purposes, 
            purchases, sells, manufacturers, ships, transports, 
            distributes, or receives a firearm, where the coloration of 
            the entire exterior surface of the firearm is bright orange or 
            bright green, either singly, in combination, or as the 
            predominant color in combination with other colors in any 
            pattern, is liable for a civil fine in an action brought by 
            the city attorney of the city or the district attorney for the 
            county of not more than $10,000.  (Penal Code Section 
            12020.3.)








                                                                  SB 1315
                                                                  Page  4


           FISCAL EFFECT  :   Unknown.

           COMMENTS  :   

           1)Author's Statement  : According to the author, "SB 1315 was 
            introduced at the request of Los Angeles Police Chief Charlie 
            Beck in order to protect Californians, especially law 
            enforcement officers, from the dangers caused by imitation 
            firearms.  Every day the men and women who serve as law 
            enforcement officers must make split second decisions to 
            determine if it is appropriate to use deadly force to protect 
            our communities.

          "This quick and life changing decision is made even more 
            difficult given that these fake guns look exactly like real 
            firearms.  Accidental shootings, especially the shootings of 
            minors and young adults, by law enforcement officers and 
            others is tragic.  

          "You may recall SB 798, a bill that was passed by this 
            legislative body last year and proposed that BB guns adhere to 
            the same laws and regulations set forth for imitation 
            firearms. This bill (SB 1315) provides a narrow approach to 
            this outstanding problem by exempting cities in LA County from 
            a current State preemption that prevents cities from adopting 
            ordinances related to imitation firearms. This bill would 
            simply allow cities within LA County to enact and enforce 
            ordinances that will ensure the safety of our men and women in 
            uniform as they relate to these imitation guns. This bill is 
            supported by Los Angeles County Sherriff Leroy Baca, Los 
            Angeles Mayor Antonio Villaraigosa."  
           
           2)Federal Preemption Issue  :  Article VI of the U.S. Constitution 
            contains the supremacy clause, which provides that the 
            Constitution, and the laws made pursuant to it, are the 
            supreme law of the land.  If there is a conflict between 
            federal and state law, federal law controls and state law is 
            invalidated.  Traditionally, the Supreme Court has identified 
            two major situations where preemption occurs.  One is where 
            federal law expressly preempts state or local law and the 
            other is where preemption is implied by clear congressional 
            intent to preempt state or local law.  

          Here, Congress expressly stated, "The provisions of this section 








                                                                  SB 1315
                                                                  Page  5

            shall supersede any provision of State or local laws or 
            ordinances which provide for markings or identification 
            inconsistent with provisions of this section." Ý15 USC 
            5001(g).]  Because federal law requires only that BB devices 
            have a "blaze orange plug inserted in the barrel" Ý15 USC 
            5001(b)(1)], any local ordinances passed which require any 
            alternative markings would be preempted by federal law and 
            invalidated by the courts.  

           3)Exclusion of Paintball Guns  :  The provisions of this bill 
            would not allow the County of Los Angeles or cities therein to 
            regulate BB devices with a projectile greater than 16 
            millimeters, primarily paintball guns.  The author states that 
            the intent of this bill is to prevent accidental shootings 
            like the one that occurred in December of 2010.  A quick 
            Google Image search of "paintball guns" yields results that 
            look substantially similar to firearms.  It is unclear why 
            these guns will not create the same confusion as guns that 
            fire a projectile smaller than 16 millimeters.  

           4)Argument in Support  :  According to the Mayor of Los Angeles, 
            "Currently, local governments are preempted by the Legislature 
            from regulating imitation firearms.  This lack of local 
            regulation has created a public safety problem.  Given their 
            stunning resemblance to firearms, these devices have been 
            involved in the accidental shootings of youth by law 
            enforcement officers.  We must aid our officers in discerning 
            these devices from real firearms by regulating imitation 
            firearms.  Moreover, the safety of our youth who unwittingly 
            point these devices at law enforcement officers is at issue.  
            We must work to eliminate these tragic circumstances involving 
            the youth within our cities.  The passage of SB 1315 will 
            provide for the City of Los Angeles to enact local regulations 
            that will aid the LAPD to clearly distinguish an imitation gun 
            from a real firearm."

           5)Argument in Opposition :

             a)   According to the  Airsoft Safety Foundation  , "If BB 
               device owners comply with existing state imitation firearm 
               laws, there should be few, if any, problems with BB device 
               possession and use at the local level.  The problem is 
               failure to comply with current state laws, not a need for 
               more laws at the local level.  









                                                                  SB 1315
                                                                  Page  6

             "State BB device laws are generally adequate, but if 
               revisions are needed they should be made at the state 
               level, not by local government.

             "Since BB devices may be transported through several 
               jurisdictions while traveling from a person's home to a 
               place where they may be used, such as a recreational 
               shooting facility, statewide uniformity of laws is 
               necessary.  If each local jurisdiction has its own laws, a 
               person could easily and unknowingly be in and out of 
               compliance while en route.

             "The need for state wide uniformity of laws affecting the 
               possession and use of paintball guns is obvious.  Local 
               laws affecting BB devices are not appropriate."

             b)   According to the  Crossman Corporation  , "SB 1315 permits 
               and invites ill-advised local laws that would: (1) 
               jeopardize the safety of police officers and the public; 
               (2) create inconsistent and unfair regulations; (3) be 
               preempted by federal law; (4) result in costly and 
               unnecessary litigation; and (5) negatively impact 
               California's local economy?

             "Federal law preempts any law that would ban the sale of 
               airguns.  15 U.S. C. ÝSection] 5001(g) ('no state shall-- 
               ?(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.')?

             "California courts also recognize this federal preemption.  
               See, In re Arturo H., 42 Cal.App.4th 1694, 1700, 51 
               Cal.Rptr.2d 5 (1996) ('Section 12001.1 appears to have been 
               deleted solely because of a concern that federal law had 
               preempted state regulation of the sales of pellet guns to 
               anyone other than minors.' and 'Again, it appears that 
               pellet guns are excepted from restrictions on the sale of 
               imitation firearms only because of a concern that 
               regulation of pellet gun sales to adults might be preempted 
               by federal law.').

             "Traditional airguns do not contain orange markings at the 
               muzzle or around the barrel.  Traditional airguns are not 
               brightly colored or transparent.  Therefore, any law 








                                                                  SB 1315
                                                                  Page  7

               requiring airguns to have such markings would effectuate a 
               ban on the sale of traditional airguns and is preempted by 
               federal law?

             "Any law requiring airguns to look like a toy is not wise.  
               It creates a dangerous situation and potential liability 
               for airgun manufacturers.  Airguns are purposefully 
               designed and manufactured to look like real guns.  Our 
               company and the industry will fight any law requiring then 
               to look like toys.  Naturally, this would result in a 
               wasteful expenditure of tax payers' monies by Los Angeles 
               County and/or certain cities?  

             "Federal law also preempts and supersedes any state or local 
               law that requires markings inconsistent with federal law.  
               15 U.S.C. ÝSection] 5001(g) ('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?'); 15 CRF 1150.5 ('In accordance with? 15 U.S.C. 
               5001(g), the provisions of section 4(a) of that Act and the 
               provisions of this part supersede any provision of State or 
               local laws or ordinances which provides for markings or 
               identification inconsistent with the provisions of section 
               4 of that Act or the provisions of this part.').

             "This means no state or local law can require airguns to have 
               any markings.  The federal statute specifically exempts 
               traditional airguns from the marking requirements.  15 
               U.S.C. ÝSection] 5001(c) ('For purposes of this section, 
               the term 'look-alike firearm'? does not include any ? 
               traditional B-B, paint-ball, or pellet-firing air guns that 
               expel a projectile through the force of air pressure.')  
               True to the statute, the federal regulations state, 'This 
               part does not apply to: ? (b) traditional B-B, paint-ball, 
               or pellet-firing air guns that expel a projectile through 
               the force of compressed air, compressed gas or mechanical 
               spring action, or any combination thereof, as described in 
               American Society for Testing and Materials standard F 
               589-85, Standard Consumer Safety Specification for 
               Non-Powder Guns, June 28, 1985.'  15 CRF 1150.1.

             "Thus, federal law does not require airguns to have markings, 
               and airgun manufacturers, because of the nature of their 
               products, choose not to make airguns that are brightly 








                                                                  SB 1315
                                                                  Page  8

               colored, transparent, or toy-like in appearance.  Any law 
               stripping away that choice and requiring airguns to have 
               any markings is 'inconsistent with' federal law and, 
               therefore, expressly preempted?

             "It is suggested federal preemption does not apply, and City 
               of New York v. Job-Lot Pushcart, 88 N.Y.2d 163 (1996) is 
               cited.  The Job-Lot case did not involve an airgun, an 
               airsoft gun, or any gun that expelled a projectile.  The 
               case involved toys, not capable of causing injury.  Neither 
               airguns nor airsoft guns are toys.  The New York Court of 
               Appeals actually said, 'ÝT]he plain language employed by 
               Congress demonstrates that ? State regulation of ? B-B 
               guns, paint ball guns, or pellet-firing air guns  is 
               expressly preempted under 15 U.S.C. ÝSection] 5001(g), 
               which bars any State from prohibiting the sale of such 
               devices?'  This New York case has no factual or legal 
               significance in light of the products at issue and the 
               California jurisprudence on preemption."

             c)   According to the owner of  Animal Pest Management 
               Services, Inc. (APMS)  , "BB devices (pellet guns) are 
               frequently used for the control of pests where no other 
               realistic option for their control exists.  APMS has 
               customers is several different communities within Los 
               Angeles County.  If the county, or communities within the 
               county, enact differing BB device laws, if could seriously 
               harm the business operations of APSM or even curtail them 
               altogether.  

             "It is important to the success of our business that there be 
               uniformity of BB device laws in each of the communities and 
               counties where APMS has customers.  The only way to achieve 
               this is through statewide laws.  State preemption over 
               local BB device laws must not be disrupted by the creation 
               of exemptions for various local governments."

           6)Related Legislation  : SB 798 (De Leon), would have removed the 
            state preemption of any local ordinances regarding the 
            manufacture, sale, or possession of imitation firearms, BB 
            devices, and air rifles.  SB 798 failed passage in this 
            committee.

           7)Previous Legislation  :









                                                                  SB 1315
                                                                  Page  9

             a)   SB 1858 (Dunn), Chapter 607, Statutes of 2004, 
               established a new definition for imitation firearms and 
               generally prohibited the open display or exposure of 
               imitation firearms in public places.  

             b)   AB 1455 (McLeod), Chapter 246, Statutes of 2003, exempts 
               BB devices from the list of imitation firearms required to 
               be brightly colored.

           REGISTERED SUPPORT / OPPOSITION  :

           Support 
           
          Office of the Mayor of Los Angeles
           
            Opposition 
           
          Airsoft Extreme
          Airsoft Safety Foundation
          Airsoft Wholesaler Inc.
          Airsoft Zone Corporation
          Airsplat.com
          Animal Pest Management Services, Inc.
          California Rifle and Pistol Association, Inc.
          California Association of Firearms Retailers
          Crossman Corporation
          EDO Trading Inc.
          KTT International
          KWA Performance Industries, Inc.
          National Shooting Sports Foundation, Inc. 
          Outdoor Sportsmen's Coalition of California 
          PWC United Ventures LLC
          S/R Industries, Inc. 
          Safari Club International
          Specialized Distribution
          Tac City
          The California Sportsman's Lobby, Inc. 
          The Wurster, Inc. 
          Umarex USA
          Xtreme Airsoft Zone
          601 Private Individuals 

           Analysis Prepared by  :    Milena Blake / PUB. S. / (916) 319-3744 










                                                                  SB 1315
                                                                  Page  10