BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    AB 1798       Hearing Date:    June 21, 2016    
          
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          |Author:    |Cooper                                               |
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          |Version:   |February 8, 2016                                     |
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          |Urgency:   |No                     |Fiscal:    |No               |
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          |Consultant:|JRD                                                  |
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             Subject:  Firearms:  Imitation Firearms:  Gun- Shaped Phone  
 
                                        Cases



          HISTORY

          Source:   Author

          Prior Legislation:SB 199 (De León) - Chapter 915, Statutes of  
          2014

          Support:  Association of Orange County Deputy Sheriffs;  
                    California Association of Highway Patrolmen;  
                    California Police Chiefs Association; California Peace  
                    Officers Association; California State Sheriffs'  
                    Association; California Statewide Law Enforcement  
                    Association; Fraternal Order of Police; Long Beach  
                    Police Officers Association; Peace Officers Research  
                    Association of California; Sacramento County Deputy  
                    Sheriffs' Association

          Opposition:None known

          Assembly Floor Vote:                 74 - 0


          PURPOSE







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          This bill 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 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(a)  
          and (b).)

          Existing federal law 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 air guns that expel a projectile through the force  
          of air pressure.  (15 U.S.C. § 5001(c).)

          Existing federal law 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:

                 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.

             (15  U.S.C. § 5001(g))

          Existing law prohibits, subject to specific exceptions,  
          purchase, sale, manufacture, shipping, transport, distribution,  
          or receipt, by mail order or in any other manner, of an  








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          imitation firearm.  Manufacture for export is permitted.  (Penal  
          Code § 20165.)

          Existing law defines "BB device" as "any instrument that expels  
          a projectile, such as a BB or a pellet, through the force of air  
          pressure, gas pressure, or spring action, or any spot marker  
          gun."  (Penal Code 16250.)

          Existing law 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."  (Penal Code § 16700(a).)

          Existing law states that an "imitation firearm," for purposes of  
          the prohibition on purchase, sale, manufacture, etc., of an  
          imitation firearm, does not include the following:

                 A nonfiring collector's replica that is historically  
               significant, and is offered for sale in conjunction with a  
               wall plaque or presentation case.
                 A spot marker gun which expels a projectile that is  
               greater than 10mm caliber.
                 A BB device that expels a projectile, such as a BB or  
               pellet, that is other than 6mm or 8mm caliber.
                 A BB device that is an airsoft gun that expels a  
               projectile, such as a BB or pellet, that is 6mm or 8mm  
               caliber which meets the following:

                  o         If the airsoft gun is configured as a handgun,  
                    in addition to the blaze orange ring on the barrel  
                    required by federal law, the airsoft gun has a trigger  
                    guard that has fluorescent coloration over the entire  
                    guard, and there is a two centimeter wide adhesive  
                    band around the circumference of the protruding pistol  
                    grip that has fluorescent coloration.    
                  o         If the airsoft gun is configured as a rifle or  
                    long gun, in addition to the blaze orange ring on the  
                    barrel required by federal law, the airsoft gun has a  
                    trigger guard that has fluorescent coloration over the  
                    entire guard, and there is a two centimeter wide  
                    adhesive band with fluorescent coloring around the  
                    circumference of any two of the following:









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                       §              The protruding pistol grip.
                       §              The buttstock.
                       §              A protruding ammunition magazine or  
                         clip.

                 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, or where the entire device is  
               constructed of transparent or translucent materials which  
               permits unmistakable observation of the device's complete  
               contents.

          (Penal Code § 16700(b) and (c).)

          Existing law 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.  (Penal Code § 19910.)

          Existing law 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.  (Penal Code § 19915.)

          Existing law 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.  (Penal Code § 20150.)

          Existing law 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. (Penal Code § 20160.)









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          Existing law prohibits any person from openly displaying or  
          exposing any imitation firearm in a public place, as defined.   
          (Penal Code § 20170.)  A violation of this 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.  (Penal Code § 20180.)

          Existing law 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.)

          This bill specifies that the definition of imitation firearm  
          described above includes, but is not limited to, a protective  
          case for a cellular telephone 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.





                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the past several years this Committee has scrutinized  
          legislation referred to its jurisdiction for any potential  
          impact on prison overcrowding.  Mindful of the United States  
          Supreme Court ruling and federal court orders relating to the  
          state's ability to provide a constitutional level of health care  
          to its inmate population and the related issue of prison  
          overcrowding, this Committee has applied its "ROCA" policy as a  
          content-neutral, provisional measure necessary to ensure that  
          the Legislature does not erode progress in reducing prison  
          overcrowding.   
          On February 10, 2014, the federal court ordered California to  
          reduce its in-state adult institution population to 137.5% of  
          design capacity by February 28, 2016, as follows:   

                 143% of design bed capacity by June 30, 2014;
                 141.5% of design bed capacity by February 28, 2015; and,
                 137.5% of design bed capacity by February 28, 2016. 








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          In December of 2015 the administration reported that as "of  
          December 9, 2015, 112,510 inmates were housed in the State's 34  
          adult institutions, which amounts to 136.0% of design bed  
          capacity, and 5,264 inmates were housed in out-of-state  
          facilities.  The current population is 1,212 inmates below the  
          final court-ordered population benchmark of 137.5% of design bed  
          capacity, and has been under that benchmark since February  
          2015."  (Defendants' December 2015 Status Report in Response to  
          February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge  
          Court, Coleman v. Brown, Plata v. Brown (fn. omitted).)  One  
          year ago, 115,826 inmates were housed in the State's 34 adult  
          institutions, which amounted to 140.0% of design bed capacity,  
          and 8,864 inmates were housed in out-of-state facilities.   
          (Defendants' December 2014 Status Report in Response to February  
          10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman  
          v. Brown, Plata v. Brown (fn. omitted).)  
           
          While significant gains have been made in reducing the prison  
          population, the state must stabilize these advances and  
          demonstrate to the federal court that California has in place  
          the "durable solution" to prison overcrowding "consistently  
          demanded" by the court.  (Opinion Re: Order Granting in Part and  
          Denying in Part Defendants' Request For Extension of December  
          31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,  
          Coleman v. Brown, Plata v. Brown (2-10-14).  The Committee's  
          consideration of bills that may impact the prison population  
          therefore will be informed by the following questions:

              Whether a proposal erodes a measure which has contributed  
               to reducing the prison population;
              Whether a proposal addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy;
              Whether a proposal addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
              Whether a proposal corrects a constitutional problem or  
               legislative drafting error; and
              Whether a proposal proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy.










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          COMMENTS

          1.Need for This Legislation

          According to the author:

               Currently available for purchase on-line are  
               cellular/smartphone cases that are similar in color,  
               shape, and operation to that of a real handgun.  

               Federal law prohibits the manufacturing, shipping,  
               transporting or receiving any toy, look-a-like or  
               imitation firearm unless it has an identifying mark  
               that identifies it as a toy or look-a-like.   
               Furthermore, state law makes it a felony not to comply  
               with this federal law.  Generally, the "mark" is that  
               the imitation is a totally different color than a real  
               firearm or the mark is an orange or red tip at the end  
               of the barrel.  

               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.  Specifically, these cases  
               do not have a standalone, protruding barrel that can  
               be visibly seen on all sides, and in the front.  Thus,  
               the barrel cannot be properly marked depicting the  
               device is an imitation.

          2.Effect of this Legislation

          According to the New York Times: 

               An iPhone case that looks like a handgun is drawing  
               warnings that it could be too easily mistaken for a real  
               weapon.








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               That has been the message for weeks from some police  
               departments in the United States, concerned that the case  
               could add to the uncertainty of confrontations with  
               suspects.


               The cases - in black, white and pink - are made by a number  
               of foreign manufacturers. Most appear to be imported from  
               Asia.


               Last week, Deputy Inspector Judith Harrison of the New York  
               Police Department posted a message on Twitter warning  
               consumers against buying the case.


               The New Jersey State Police also recommended that people  
               not buy the case.


               "This cell phone case is a terrible idea," the department  
               said in a Facebook posting. "Officers do not have the  
               luxury of time when making split-second decisions while  
               interacting with the public."


               The prosecutor's office in Ocean County, N.J., also  
               commented on Facebook.


               "Please folks - this cell phone case is not a cool product  
               or a good idea," the posting read. "A police officers job  
               is hard enough, without having to make a split second  
               decision in the dark of night when someone decides without  
               thinking to pull this out while stopped for a motor vehicle  
               violation."


               In what appeared to be the first remarks on the issue by a  
               federal legislator, Senator Chuck Schumer said Tuesday that  
               sales of the cases might be illegal and urged online  
               retailers, including Amazon and eBay, to immediately stop  








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               selling them.


               On Tuesday evening, a spokesman for Amazon, Erik Fairleigh,  
               said in an email that the item was no longer listed for  
               sale on the site. He declined to elaborate.


               Mr. Schumer said a federal law requires toy or imitation  
               guns to feature a highly visible orange mark at the end of  
               the barrel to identify them as harmless. Since the phone  
               case does not have the marker, he said, he would work with  
               customs officials to block its import and sale.


               "For years, we have been concerned about realistic-looking  
               fake weapons," Mr. Schumer said, "and that's precisely why  
               this federal law was put into place."


               Michael J. Bouchard, a Michigan sheriff, said last week  
               there was too much potential for dangerous misunderstanding  
               if a student walked into a school or a person walked into a  
               bank with one of the cases.


               "It looks like literally you have a weapon sticking out of  
               your back pocket," he said in an interview with WXYZ-TV in  
               Detroit. "We are not a big fan of it on any level."


                (Gun-Shaped iPhone Case 'Is a Terrible Idea,' Police  
               Officials Warn, Christine Hauser and Katie Rogers, New York  
               Times, July 7, 2015,  
               www.nytimes.com/2015/07/08/us/gun-shaped-iphone-case-is-a-te 
               rrible-idea-police-officials-warn.html.) 


          To address these concerns, this legislation would treat a  
          cellphone case, that is "substantially similar" in appearance to  
          a firearm, as an imitation firearm.   As such, these cellphone  
          cases would have to be "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  








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          with other colors in any pattern, or where the entire device is  
          constructed of transparent or translucent materials which  
          permits unmistakable observation of the device's complete  
          contents."  (Penal Code § 16700.)

          3.Federal Preemption 

          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.

          (US Const., Art VI, cl (2).)

          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.) 

          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,  








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          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  
               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).)

          The question this raises is whether the provisions of this bill  
          are inconsistent with the federal law.  Given the novelty of  
          this issue (firearm shaped phone cases), it has not been  
          specifically addressed by federal law.  Thus, there are likely  
          no preemption issues with this legislation. 



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