BILL ANALYSIS Ó
SB 199
Page 1
Date of Hearing: June 24, 2014
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 199 (De León) - As Amended: January 6, 2014
SUMMARY : Prohibits the sale or manufacture of BB devices, as
defined, unless the entire exterior surface of the device is
brightly colored or transparent, as specified. Specifically,
this bill :
1)Includes BB devices within the definition of "imitation
firearm" for purposes of the prohibition on the purchase,
sale, manufacture, and distribution of imitation firearms.
2)Excludes spot marker guns that expel a projectile larger than
10 millimeters in caliber.
3)Removes the 6 millimeter restriction from the definition of a
BB device.
4)Deletes reference to federal regulations governing imitation
firearms in existing provisions of law related to imitation
firearms.
EXISTING FEDERAL LAW :
1)States that no person shall manufacture, enter into commerce,
ship, transport, or receive any toy, look-alike, or imitation
firearm unless such firearm contains, or has permanently
affixed to it 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 U.S.C. § 5001, subds. (a) & (b).)
2)Provides that the term "look-alike firearm" means any
imitation of any original firearm which was manufactured,
designed, and produced since 1898, including and limited to
toy guns, water guns, replica nonguns, and air-soft guns
firing nonmetallic projectiles. The term "look-alike firearm"
does not include traditional BB, paint-ball, or pellet-firing
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air guns that expel a projectile through the force of air
pressure. (15 U.S.C. § 5001, subd. (c).)
3)States that 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 (15 U.S.C. § 5001,
subd. (g)):
a) Prohibit the sale or manufacture of any look-alike,
nonfiring, collector replica of an antique firearm
developed prior to 1898, or,
b) 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.
4)Provides that no person shall manufacture, enter into
commerce, ship, transport or receive any toy, look-alike, or
imitation firearm covered by these regulations, unless such
device contains, or has affixed to it, one of the markings set
forth in the following section related to approved markings,
or unless this prohibition has been waived because the device
will be used in the theatrical, movie or television industry,
as specified. (15 C.F.R. § 272.2 (2014).)
5)Specifies that the prohibition above does not apply to the
following (15 C.F.R. § 272.1 (2014)) :
a) Non-firing collector replica antique firearms;
b) Traditional BB, 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; or,
c) Decorative, ornamental, and miniature objects having the
appearance, shape and/or configuration of a firearm,
provided that the objects measure no more than 38
millimeters in height by 70 millimeters in length,
excluding any gun stock length measurement.
6)States that the following markings are approved for toy,
look-alike, and imitation firearms (15 C.F.R. § 272.3 (2014)):
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a) A blaze orange, or brighter orange as specified, solid
plug permanently affixed to the muzzle end of the barrel as
an integral part of the entire device and recessed no more
than 6 millimeters from the muzzle end of the barrel;
b) A blaze orange, or brighter orange as specified, marking
permanently affixed to the exterior surface of the barrel,
covering the circumference of the barrel from the muzzle
end for a depth of at least 6 millimeters;
c) Construction of the device entirely of transparent or
translucent materials which permits unmistakable
observation of the device's complete contents; and,
d) Coloration of the entire exterior surface of the device
in 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.
7)Provides that the provisions in the federal regulations
supersede any provisions of State or local laws or ordinances
which provides for markings or identification inconsistent
with the federal provisions. (15 C.F.R. § 272.5 (2014).)
EXISTING LAW :
1)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.)
2)Defines "imitation firearm" as 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. (Pen. Code, § 16700, subd. (a).)
3)States that an "imitation firearm," for purposes of the
prohibition on purchase, sale, manufacture, etc., of an
imitation firearm, does not include the following (Pen. Code,
§ 16700, subd. (b)):
a) A nonfiring collector's replica that is historically
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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.
4)Defines "BB device" to mean 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. (Pen. Code, § 16250.)
5)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. (Pen. Code, § 19910.)
6)States 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. (Pen. Code, § 19915.)
7)Makes it a misdemeanor, with specified exceptions, for any
person to change, alter, remove, or obliterate 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. (Pen. Code, § 20150.)
8)Requires any imitation firearm manufactured after July 1,
2005, at the time of offer for sale in this state, to 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
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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. (Pen. Code, § 20160.)
9)Prohibits any person from openly displaying or exposing any
imitation firearm in a public place, as defined. (Pen. Code,
§ 20170.)
10)Provides that a violation of the above provision 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. (Pen. Code, §
20180.)
11)States that any 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.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Replica guns
are deliberately fabricated to be indistinguishable from real
firearms. Law enforcement officers have extreme difficulty
distinguishing these imitation 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
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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 Forum,
'Toy Guns: Involvement in Crime and Encounters with Police,'
Bureau of Justice Statistics, Department of Justice, June
1990.) Today, residents and police officers continue to face
the threat posed by replica guns that bear far too close of a
resemblance to handguns and assault weapons. By requiring BB
guns and pellet guns to adhere to the regulations that govern
all other imitation firearms, it will be far easier to
identify these replicas for what really are."
2)Federal Preemption Issues : 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. (Jones v. Rath Packing
Co., (1977) 430 U.S. 519, 525.) Even if a federal law
contains an express preemption 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.)
Here, Congress expressly stated, "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 U.S.C. §
5001, subd. (g).) The statute also specifies that no state
law shall "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." (Ibid.)
There are two separate issues of preemption raised by this
bill. First is whether the requirement to brightly color or
make translucent the exterior of imitation firearms is
inconsistent with the Federal Toy Gun Law (15 U.S.C. § 5001).
These include most toy guns, water guns, and air-soft guns
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that are currently subject to the blaze orange plug
requirement under the Federal Toy Gun Law. Traditional BB
guns, paint ball guns, and pellet firing air guns are exempt
from the blaze orange plug requirement under federal law.
Although the Federal Toy Gun Law prohibits the manufacture and
sale of toy, look-alike or imitation firearms unless the
device is affixed with a blaze orange plug recessed no more
than 6 millimeters from the muzzle end of the barrel of the
device (15 U.S.C. § 5001, subd. (a) & (b), italics added), the
federal regulations implementing the federal statute allow
other options to comply with the federal law. 15 C.F.R. §
272.3 (2014) provides, in addition to the orange plug, other
approved markings which include an orange marking permanently
affixed to the exterior surface of the barrel, construction of
the device entirely of transparent or translucent materials,
or coloration of the entire exterior surface of the device in
specified colors.
This bill would require all imitation firearms to be either
brightly colored or made of transparent or translucent
materials. For many imitation firearms, this would be in
addition to the blaze orange plug required under federal law.
In City of New York v. Job-Lot Pushcart (1996), 88 N.Y.2d 163,
the New York State Court of Appeal addressed a local ordinance
that is similar to SB 199. In City of New York v. Job-Lot
Pushcart, 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 by the Federal Toy Gun Law. The court's rationale
for this holding is that "it is feasible to make a red or
purple toy gun and contains an orange plug, thus satisfying
both laws. Therefore, it is not impossible to comply with
both the Federal Toy Gun Law and Administrative Code §
10-131(g)." (City of New York v. Job-Lot Pushcart, supra, 88
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N.Y.2d at pg. 170.) The court went on to state that
"compliance with both the Federal and local laws at once
furthers the intent of Congress and achieves the public safety
objective underlying each measure." (Ibid.)
While this case is not binding on California, it is
persuasive, which means if this issue were to be litigated in
California, the California courts would at least consider the
New York Court of Appeal's holding and rationale in City of
New York v. Job-Lot Pushcart to determine whether SB 199 is
preempted by the Federal Toy Gun Law. Additionally, SB 199's
provisions seems to complement the federal regulations
governing approved markings on toy, look-alike or imitation
firearms (15 C.F.R. § 272.3 (2014) rather than conflicting
with them. SB 199 provisions mirror two approved markings
under the federal regulations, specifically subdivisions (c)
and (d) of section 272.3 which allow for the exterior of the
device to be made entirely of transparent or translucent
materials or brightly colored in specified colors.
The second preemption issue raised by this bill is whether
applying SB 199's requirements to traditional BB devices,
which are exempted under current law, is a prohibition on the
sale of these devices, and thereby preempted. On this issue,
there are two court decisions that have interpreted this
provision to allow states to regulate traditional BB devices.
If a state or local law goes beyond regulation by either
prohibiting the sale or placing restrictions that are so
substantial as to be a de facto prohibition on the sale, that
state or local law is federally preempted.
An example of de facto prohibition is illustrated in Coalition
of New Jersey Sportsmen v. Florio (1990) 744 F.Supp. 602. In
that case, New Jersey enacted a statute banning large capacity
magazines and regulating semi-automatic "assault firearms"
which, under the broad definition in the statute, included
traditional BB devices and air guns. Under the statute, a
person wishing to purchase semi-automatic air rifles
classified as "assault firearms" was required to obtain a
license. In order to obtain the license, the applicant was
required to file a written application with the New Jersey
Superior Court setting forth in detail the reasons for
desiring such a license. The Superior Court would then refer
the application to the county prosecutor for investigation and
recommendation, and based upon that recommendation, the
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Superior Court would be authorized to grant the license but
only on a finding that the public safety and welfare so
required. The Superior Court could also place any conditions
and limitations on the license as it deemed in the interest of
the public. The applicant was required to pay a $75
application fee and if the license was granted, it would only
be valid for two years. Once the license expired, the
applicant was required to reapply as if he or she were
applying for the first time. (Coalition of New Jersey
Sportsmen v. Florio, supra, 744 F.Supp. at pg. 608.) The
court found these restrictions were so substantial that they
created a de facto prohibition on the sale of BB and air guns.
Therefore, the court held that the statute was preempted to
the extent that its provisions prohibit the sale of
traditional BB and pellet-firing air guns. (Ibid.)
An example of permissible regulation is found in 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. In that
case, New Jersey passed a One Gun Law, which prohibited 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 court held that the law was
not preempted because the law amounted to regulation not a de
facto prohibition. The court stated that "Section 5001(g)(ii)
provides that states cannot prohibit the sale of BB and air
guns. However, it does not bar states from regulating the
sale of BB 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 BB and air guns, it is not preempted by §
5001(g)(ii)." (Association of New Jersey Rifle and Pistol
Clubs v. Governor of the State of New Jersey, supra, 707 F.3d
at pg. 240.)
Whether SB 199's provisions are preempted by subdivision
(g)(ii) of Section 5001 depends on whether its provisions
amount to regulation, which is allowed, or a de facto
prohibition, which is not allowed.
3)Practical Considerations : The purpose of this bill, as stated
by the author, is to prevent the misidentification of
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imitation guns as lethal weapons. In order to prevent
misidentification, this bill requires the entire exterior of
imitation firearms to either brightly colored or made of
transparent or translucent materials which permit unmistakable
observation of the device's complete contents. While this may
make sense for toy guns, or other imitation guns that have a
low risk of causing injury, this bill adds BB devices and air
guns into the definition of imitation guns. Unlike toy guns
or even air-soft guns, BB devices and air guns shoot
projectiles that are metallic and much larger than what an
airsoft gun typically projects. The force with which these
projectiles are shot are often more powerful than airsoft guns
which increases its likelihood of seriously injuring or
killing someone.
Requiring these dangerous guns to be brightly colored or
translucent may cause confusion or undue delay for law
enforcement officers who have to make split-second decisions
on how to handle a situation involving a person brandishing a
firearm. Either law enforcement officers will have to treat
brightly-colored or translucent guns as toy guns which could
endanger officer safety, or they would have to assume all
brightly colored or translucent guns are lethal or dangerous
and treat them the way they treat any other firearm, which
would make the provisions of this bill ineffective.
Additionally, considering that current law does not prohibit
brightly coloring real firearms, would it be dangerous to
assume that a brightly colored gun is a toy?
4)Injuries from BB Devices : A 2004 article published in
Pediatrics, the official journal of the American Academy of
Pediatrics, reviewed the potential dangers from nonpowder
guns, including BB guns, pellet guns, air rifles, and
paintball guns. The author found that in 2000, there were an
estimated 21840 injuries related to nonpowder guns, with
approximately 4% resulting in hospitalization. [Laraque,
Injury Risk of Nonpowder Guns, Pediatrics, (November 1, 2004),
available at .] Over one-half of these injuries occurred
in children under the age of 14, with approximately 12% of
injuries to the eye; 24% to the head and neck, excluding the
eye; 63% to extremities; and 1% to other body areas. (Id.)
The article notes that the small size of the pellets shot from
nonpowders guns can contribute to the severity of the injury.
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The small size of the wound may lead to parents or emergency
room personnel to overlook the injury, but "but if not
appreciated for their potential for tissue disruption,
nonpowder gun injuries to the head, chest, and abdomen may
have catastrophic results." (Id.) The authors also note that
"pellets from air guns have a propensity to embolize if the
missile enters a blood vessel or the heart. The light weight
of air gun pellets allows the missile to be swept by the blood
flow more readily than heavier, higher-energy projectiles."
(Id.) The article also notes that injuries from paintball
guns are primarily limited to eye injuries. (Id.)
Would requiring BB devices to be brightly colored or made of
translucent materials give off the impression that these
devices are toys, leading to misuse of these dangerous
devices, especially among children?
5)Argument in Support :
a) According to the Los Angeles Police Department , "The
accidental shooting of residents, especially minors and
young adults, by law enforcement officers and others is a
public safety problem. This bill would assist law
enforcement officers to more easily distinguish the
difference between BB guns and firearms when faced with
split second life threatening decisions.
"The Los Angeles Police Department continues to support
ordinances that would make it easier for its officers to
determine if someone is carrying a firearm or BB gun. I
believe Senate Bill 199 will be a helpful tool for my
officers to make our communities safer."
b) According to the Sonoma County Sheriff's Office ,
"Imitation 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. As a result, officers
and community residents can find themselves in dangerous
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situations when unable to distinguish replica guns from
real handguns and assault weapons."
6)Argument in Opposition :
a) According to APS Limited , "Our first concern comes with
the mandatory coloring of airsoft devices that SB 199 would
require. The reason to paint these products in bright
colors would be to distinguish them from real firearms;
however, many real firearms currently come in bright
colors, or can be easily painted in this manner. When guns
are painted in fluorescent colors, they can appear as if
they are toys. This trend is of increasing concern to
police officers. In fact, there is a tremendous and
growing market for bright pink, multi-colored, and exotic
firearms throughout the country. By painting airsoft
devices in neon colors, we would be giving law enforcement
and the general public a false sense of security.
"Our second concern is for the negative effect that SB 199
will have on the State's economy. On a national scale, the
market for airsoft devices produces hundreds of millions of
dollars in sales each year. California currently serves as
the primary distribution and retail center for these types
of recreational products. Mandating that airsoft devices
be brightly colored would essentially kill the market in
the state, causing the loss of jobs and economic activity
statewide. Together, businesses like ours in California
generate hundreds of millions of dollars to the economy,
employ thousands of people, and contribute millions of
dollars in tax revenue to the State and local
municipalities."
b) According to Gamo Outdoor USA Inc. , "It is critical to
understand the nature and scope of products that SB 199
would impact. Traditional airguns (or simply "airguns")
utilize air or carbon dioxide gas as the propellant to
discharge a metal projectile, either a BB or pellet, of
diameters (caliber) typically ranging from .177 to .22
inch. Many airguns are used for hunting small game and for
pest and varmint control. As is true with many products,
the misuse or careless use of traditional airguns can
result in serious injury and, in some cases, death.
Traditional airguns are not toys. It is a grievous error
to treat them as harmless toys, as SB 199 appears to do.
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"Comparatively, although airsoft guns also use air or gas as
a propellant, they discharge only a plastic BB typically
6mm (approximately .24 inch) in diameter at a velocity much
less than the velocity a traditional airgun discharges a
metal projectile. Thus, the risk of serious injury from
the careless use or misuse of an airsoft gun is extremely
remote. (The notable exception would be if a user were to
discharge an airsoft gun directly into the eye of another
at close, if not point blank, range.)"
7)Related Legislation : SB 798 (De León) would have included 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. SB 798 failed passage in this Committee.
8)Prior Legislation :
a) AB 1455 (McLeod), Chapter 246, Statutes of 2003, exempts
BB devices from the list of imitation firearms required to
be brightly colored.
b) 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.
REGISTERED SUPPORT / OPPOSITION :
Support
Eric Garcetti, Mayor of Los Angeles
International Health & Epidemiology Research Center
Los Angeles Airport Peace Officers Association
Los Angeles Police Department
Sonoma County Board of Supervisors
Sonoma County Sheriff's Office
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Two private individuals
Opposition
Airsoft Safety Foundation
AirSplat.com
Animal Pest Management Services, Inc.
APS Limited
California Association of Firearms Retailers
California Rifle and Pistol Association, Inc.
California Sportsman's Lobby
Crosman Corporation
Daisy
Gamo Outdoor USA Inc.,
Hatsan
Irwindale Chamber of Commerce
JAG Precision
National Shooting Sports Foundation, Inc.
Ningo GoldenBall Industry Co.
Outdoor Sportsmen's Coalition of California
Prima USA
Pyramyd Air
Remington Arms Company LLC
Safari Club International
Shasta County Sheriff's Office
Sporting Goods Specialists, LLC
Tac City AirSoft
Umarex USA, Inc.
Valley Industry and Commerce Association
Victory Toys Co., Ltd.
236 private individuals
Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744