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