BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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SB 199 (De Leon)
As Amended: January 6, 2014
Hearing date: January 14, 2014
Penal Code
JRD:sl
IMITATION FIREARMS
HISTORY
Source: Author
Prior Legislation: SB 1315 (De León) - Ch. 214, Stats. 2012
AB 2333 (Solorio) - 2012, vetoed by Governor
SB 798 (De León) - 2011, failed passage in Assembly
Public Safety
AB 352 (Solorio) - Ch. 422, Stats. 2008
AB 2537 (Montanez) - 2006, held in Senate
Appropriations
SB 1858 (Dunn) - Ch. 607, Stats. 2004
AB 1455 (McLeod), Ch. 246, Stats. 2003
SB 292 (Roberti) - Ch. 598, Stats. 1993
Support (January 6, 2014 version): City of Los Angeles
Opposition (January 6, 2014 version): National Rifle
Association;
California Pistol and Rifle Association
KEY ISSUE
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SHOULD THE SALE OF "BB DEVICES" BE PROHIBITED IN CALIFORNIA UNLESS
THE ENTIRE EXTERIOR SURFACE OF THE DEVICE IS BRIGHTLY COLORED OR THE
DEVICE IS TRANSPARENT, AS SPECIFIED?
PURPOSE
The purpose of this bill is to subject "BB devices" to the
requirements of Penal Code section 16700, thereby requiring that
all "BB devices" sold, or manufactured for sale, in California be
either: (1)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 (2) 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. (15
U.S.C. § 5001.) 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 U.S.C. §
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. (Penal Code § 20165.)
Current law defines "imitation firearm" for most purposes to mean
any BB device, toy gun, replica of a firearm, or other device
that is so substantially similar in coloration and overall
appearance to an existing firearm as to lead a reasonable person
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to perceive that the device is a firearm. However, for purposes
of the prohibition on commercial manufacture, sale, etcetera,
"imitation firearm" does not include:
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.)
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.
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This section does not apply to: (1) a manufacturer, importer, or
distributor of imitation firearms, or (2) the 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 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. (Penal Code § 20160.)
Current law provides that no person may openly display or expose
any imitation firearm in a public place, as defined. (Penal Code
§ 20170.) A violation is an infraction punishable by a fine of
$100 for the first offense, and $300 for a second offense. A
third or subsequent violation is punishable as a misdemeanor.
(Penal Code § 20180.)
Current law provides that every person who, except in
self-defense, draws or exhibits an imitation firearm, as defined,
in a threatening manner against another in such a way as to cause
a reasonable person apprehension or fear of bodily harm is guilty
of a misdemeanor punishable by imprisonment in a county jail for
a term of not less than 30 days. (Penal Code § 417.4.)
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
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unmistakable observation of the device's complete contents.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy, known as "ROCA" (which
stands for "Receivership/ Overcrowding Crisis Aggravation"), the
Committee held measures that created a new felony, expanded the
scope or penalty of an existing felony, or otherwise increased
the application of a felony in a manner which could exacerbate
the prison overcrowding crisis. Under these principles, ROCA was
applied as a content-neutral, provisional measure necessary to
ensure that the Legislature did not erode progress towards
reducing prison overcrowding by passing legislation, which would
increase the prison population.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
submitted that the, ". . . population in the State's 33 prisons
has been reduced by over 24,000 inmates since October 2011 when
public safety realignment went into effect, by more than 36,000
inmates compared to the 2008 population . . . , and by nearly
42,000 inmates since 2006 . . . ." Plaintiffs opposed the
state's motion, arguing that, "California prisons, which
currently average 150% of capacity, and reach as high as 185% of
capacity at one prison, continue to deliver health care that is
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constitutionally deficient." In an order dated January 29, 2013,
the federal court granted the state a six-month extension to
achieve the 137.5 % prisoner population cap by December 31, 2013.
The Three-Judge Court then ordered, on April 11, 2013, the state
of California to "immediately take all steps necessary to comply
with this Court's . . . Order . . . requiring defendants to
reduce overall prison population to 137.5% design capacity by
December 31, 2013." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In response,
the Court extended the deadline first to January 27, 2014 and
then February 24, 2014, and ordered the parties to enter into a
meet-and-confer process to "explore how defendants can comply
with this Court's June 20, 2013 Order, including means and dates
by which such compliance can be expedited or accomplished and how
this Court can ensure a durable solution to the prison crowding
problem."
As of December 4, 2013, California's 33 prisons were at 146.2
percent capacity, with 119,258 inmates.
The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore, the
Committee's consideration of ROCA bills -bills that may impact
the prison population - will be informed by the following
questions:
Whether a measure erodes realignment and impacts the
prison population;
Whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a bill corrects a constitutional infirmity or
legislative drafting error;
Whether a measure proposes penalties which are
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proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and,
Whether a bill addresses a major area of public safety or
criminal activity for which there is no other reasonable,
appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
Replica guns are deliberately fabricated to be
indistinguishable from real firearms. Law enforcement
officers have extreme difficulty distinguishing these
fake guns from lethal weapons, particularly when officers
must react within seconds to emergency situations. One
of the primary dangers posed by replicas is that such
guns are used by children and young adults who may not
comprehend the seriousness of displaying them around
unsuspecting law enforcements officers or around armed
individuals. As a result, officers and community
residents can find themselves in precarious situations
when unable to distinguish replica guns from handguns and
assault weapons.
Unfortunately, because of the strong resemblance to
firearms, when officers must make split second decisions
on whether or not to use deadly force to protect the
public, these replica firearms can trigger tragic
consequences. On October 22, 2013, a thirteen-year-old
boy from Santa Rosa was tragically shot and killed by
Sonoma County deputies who mistook the plastic airsoft
gun he was carrying for an actual AK-47. This tragedy is
neither new nor uncommon. A 1990 study commissioned by
the Department of Justice found that there are well over
200 incidents per year in which imitation guns are
mistaken for real firearms. (Police Executive Research
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Forum, "Toy Guns: Involvement in Crime and Encounters
with Police," Bureau of Justice Statistics, Department of
Justice, June 1990.)
2. Effect of this Legislation
This bill would require that all "BB devices" sold, or
manufactured for sale, in California be either brightly colored
or transparent. Specifically, "BB devices" would need to be
either:
(1) 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
(2) Constructed of transparent or translucent materials
which permits unmistakable observation of the device's
complete contents.
According to the author, by adding these requirements, SB 199
seeks to stop accidental police shootings of individuals who are
carrying air-soft guns that are indistinguishable from real
firearms.
In December 2010, a 13-year-old carrying a pellet gun was
shot by a Los Angeles Police Officer. "This is a tragedy for
all involved, but in particular 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," Chief of the Los Angeles Police Department, Charlie
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."
(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-shooting-o
f-13-year-old-with-pelet-gun-tragedy-for-all-involved-chief-b
eck-says.html)
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Then, in October 2013, 13-year old Andy Lopez, who was
carrying a pellet gun that resembled an AK-47 assault rifle,
was shot and killed by a Sonoma County sheriff's deputy.
Two Sonoma County Sheriff's Deputies were patrolling a
neighborhood in Santa Rosa when they spotted Lopez carrying
what they said appeared to be a rifle. According to a
spokesman from the Santa Rosa Police Department, officers
called for backup and repeatedly ordered Lopez to drop the
weapon. Lopez reportedly turned towards the officers and
one of them opened fire. Lopez was pronounced dead at the
scene. (Police Shoot And Kill Andy Lopez, 13-Year-Old Boy
Carrying Pellet Gun, the Huffington Post, October 23, 2013.
http://www.huffingtonpost.com/2013/10/23/andy-lopez_n_4152819
.html?view=print&comm_ref=false.)
According to the author, this legislation would help stop
incidents like these by requiring that the exterior of all
"BB devices," except spot-marker guns that expel a
projectile that is greater than 10 millimeters, be "white,
bright red, bright orange, bright yellow, bright green,
bright blue, bright pink or bright purple."
3. Federal Preemption
One issue raised by this bill is whether it would be
preempted by the Federal Toy Gun Law of 1988. (15 USC §
5001.) It is not clear if this bill would be preempted.
The Supremacy Clause of the United States Constitution states:
This Constitution, and the Laws of the United States which
shall be made in pursuance thereof; and all treaties made,
or which shall be made, under the authority of the United
States, shall be the supreme law of the land; and the judges
in every state shall be bound thereby, anything in the
constitution or laws of any state to the contrary
notwithstanding.
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(US Const., Art VI, cl (2) (emphasis added).)
This provision means that any state or local laws that interfere
with, or are contrary to, federal law are invalid. (Id.) This
is known as the doctrine of preemption.
In determining whether a state or local law is preempted by a
federal law, Congressional intent is "the ultimate touchstone."
(Retail Clerks v. Schermerhorn, (1963) 375 U.S. 96, 103.)
Congress may indicate pre-emptive intent through a statute's
express language or through its structure and purpose. (Jones v.
Rath Packing Co., (1977) 430 U.S. 519, 525.) Even if a federal
law contains an express pre-emption clause, it does not
immediately end the inquiry because the question of the substance
and scope of Congress' displacement of state law still remains.
(Freightliner Corp. v. Myrick, (1995) 514 U.S. 280, 287.)
When addressing questions of pre-emption, the Supreme Court
begins its analysis "with the assumption that the historic police
powers of the States [are] not to be superseded by the Federal
Act unless that was the clear and manifest purpose of Congress."
(Rice v. Santa Fe Elevator Corp., (1947) 331 U.S. 218, 230.)
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).)
The Federal Toy Gun Law has an express preemption clause:
The provisions of this section shall supersede any
provision of State or local laws or ordinances which
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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).)
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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 this legislation. 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." (NYC Administrative Code
10-131.) A lawsuit challenged the ordinance on preemption
grounds. The New York Court of Appeal held that the ordinance
was not preempted:
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).)
This holding is not dissimilar to a more recent Third
Circuit decision. New Jersey passed a One Gun Law, which
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prohibits the purchase or sale of more than one handgun per
person per month, including BB and air guns. Plaintiffs
challenged the law on preemption grounds. The Circuit Court
held that the law was not preempted:
A state law is preempted when it conflicts with
federal law. Courts "start with the assumption
that the historic police powers of the States
were not to be superseded by the Federal Act
unless that was the clear and manifest purpose of
Congress." Section 5001(g)(ii) provides that
states cannot prohibit the sale of B-B and air
guns. However, it does not bar states from
regulating the sale of B-B and air guns in any
way. The One Gun Law restricts the sale of these
guns to one per person per month, and allows
applications for exemptions from this
restriction. It is evident that this is not a
complete prohibition. Nor is this restriction so
onerous as to be a de facto prohibition. Because
the One Gun Law regulates but does not prohibit
the sale of B-B and air guns, it is not preempted
by § 5001(g)(ii). (Association of New Jersey
Rifle and Pistol Clubs, et al. v Governor of the
State of New Jersey, et al. (2013) 707 F.3d 238,
240 (citations omitted).
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