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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