BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 1798|
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THIRD READING
Bill No: AB 1798
Author: Cooper (D)
Introduced:2/8/16
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE: 7-0, 6/21/16
AYES: Hancock, Anderson, Glazer, Leno, Liu, Monning, Stone
ASSEMBLY FLOOR: 74-0, 3/28/16 (Consent) - See last page for
vote
SUBJECT: Firearms: imitation firearms: gun-shaped phone
cases
SOURCE: Author
DIGEST: 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.
ANALYSIS:
Existing 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
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Page 2
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).)
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 air guns that expel a projectile through the
force of air pressure. (15 U.S.C. § 5001(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:
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. (15 U.S.C. § 5001(g))
4) 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.)
5) 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
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marker gun." (Penal Code § 16250.)
6) 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).)
7) States, in Penal Code Sections 16700(b) and (c), that an
"imitation firearm," for purposes of the prohibition on
purchase, sale, manufacture, etc., of an imitation firearm,
does not include the following:
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 spot marker gun which expels a projectile that is
greater than 10mm caliber.
c) A BB device that expels a projectile, such as a BB or
pellet, that is other than 6mm or 8mm caliber.
d) 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:
i) 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.
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ii) 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:
(1) The protruding pistol grip.
(2) The buttstock.
(3) A protruding ammunition magazine or clip.
iii) 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.
8) 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.)
9) 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.)
10)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
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that makes the imitation firearm or device look more like a
firearm. (Penal Code § 20150.)
11)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.)
12)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.)
13)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.
Background
According to the New York Times:
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An iPhone case that looks like a handgun is drawing warnings
that it could be too easily mistaken for a real weapon.
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
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retailers, including Amazon and eBay, to immediately stop
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-terrible-idea-police-offi
cials-warn.html.)
To address these concerns, this bill treats 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
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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.)
FISCAL EFFECT: Appropriation: No Fiscal
Com.:NoLocal: No
SUPPORT: (Verified6/23/16)
Association of Orange County Deputy Sheriffs
California Association of Highway Patrolmen
California Peace Officers Association
California Police Chiefs 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: (Verified6/23/16)
None received
ASSEMBLY FLOOR: 74-0, 3/28/16
AYES: Achadjian, Alejo, Travis Allen, Atkins, Baker, Bigelow,
Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos,
Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Daly, Dodd,
Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo
Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove,
Hadley, Harper, Roger Hernández, Holden, Irwin, Jones,
Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low,
Maienschein, Mathis, Mayes, Medina, Melendez, Mullin,
Nazarian, Obernolte, Olsen, Patterson, Quirk, Ridley-Thomas,
Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond,
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Page 9
Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Rendon
NO VOTE RECORDED: Chang, Dahle, Eggman, McCarty, O'Donnell
Prepared by:Jessica Devencenzi / PUB. S. /
6/24/16 14:33:38
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