BILL ANALYSIS Ó
AB 1798
Page A
Date of Hearing: March 15, 2016
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
AB
1798 (Cooper) - As Introduced February 8, 2016
SUMMARY: Specifies that an imitation firearm includes a cell
phone case that is substantially similar in coloration and
overall appearance to a firearm as to lead a reasonable person
to perceive that the case is a firearm.
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 six 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
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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
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,
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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)):
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 six 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 six 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:
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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
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.)
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5)Provides that sale of any BB device to a minor is a
misdemeanor, punishable by up to six 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 six 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
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
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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, "Currently
available for purchase on-line are cellular/smartphone cases
that are similar in color, shape, and even operation to a real
handgun. These cellular/smartphone cases have a handgun grip
and trigger system protruding from the phone cover. Some of
the cases have an operational trigger that when pulled creates
a gun like clicking sound. On the backside of the case is a
two dimensional replica of a semi-automatic handgun barrel and
slide mechanism. The gun shaped cellular/smartphone case has
no markings that depict it as an imitation. These devices are
fairly new and this bill takes a proactive approach to stop a
problem before it happens. This bill is necessary because
existing law is not sufficient in its definition to clearly
prohibit the manufacture, import or distribution of gun shaped
cellular/smartphone cases."
2)No Clear 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
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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.)
Quite often when issues regarding imitation firearms arise
there is generally a federal preemption issue because the
federal government frequently makes regulations in this area.
The most seminal area of law in this area is the Federal Toy
Fun Law (15 U.S.C. § 5001). However, this issue has not been
addressed by federal law. The novelty of these cell phone
cases is the most likely reason for this issue not having been
addressed. United States Senator Chuck Schumer has called for
federal action<1>, but at this time it appears that the
federal government has not taken any action in this area. In
fact, a number of local jurisdictions have banned, and
contemplated bans, on the use of these cases due to public
safety concerns. <2> <3>
3)Argument in Support: According to the California Peace
Officers' Association (CPOA), "[AB 1798] is a common sense
---------------------------
<1>
http://thehill.com/policy/technology/247209-ny-senator-raises-ala
rms-about-gun-shaped-iphone-cases
<2>
http://chicago.cbslocal.com/2015/07/29/cell-phone-gun-cases-illeg
al-in-chicago/
<3>
http://www.nydailynews.com/new-york/pistol-grip-iphone-cases-bann
ed-nyc-advocate-article-1.2276450
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measure to ensure the safety of all Californians by adding
cell phone cases resembling firearms to the definition of
'imitation firearm.' CPOA's nearly 3,000 peace officer
members across California do not wish to come across persons
carrying such a case so to not mistake it for being a gun or
other similar firearm, especially when partially concealed in
a pocket or other attire.
"As more instances of these cases are discovered across the
United States, AB 1798 is a smart bill that would protect all
Californians from any consequences related to carrying
anything resembling a gun."
REGISTERED SUPPORT / OPPOSITION:
Support
California Peace Officers Association
California State Sheriffs' Association
California Statewide Law Enforcement Association
Fraternal Order of Police
Opposition
None
Analysis Prepared
by: Gabriel Caswell / PUB. S. / (916) 319-3744