BILL NUMBER: AB 830 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 6, 1995
INTRODUCED BY Assembly Member Speier
FEBRUARY 22, 1995
An act to amend Sections 12403, 12403.5, 12403.6
171b, 12403, 12403.5 , 12403.7, 12403.8, 12423,
12426, 12450, 12453, and 12458 and 12426
of, and to repeal Sections 12435 and 12460
12403.6, 12435, and 12460 of, and to repeal Article 5
(commencing with Section 12450) of Chapter 4 of Title 2 of, the
Penal Code, relating to tear gas weapons.
LEGISLATIVE COUNSEL'S DIGEST
AB 830, as amended, Speier. Tear gas weapons.
(1) Existing law prohibits the possession of certain weapons,
including any tear gas or tear gas weapon, within any state or local
public building or at any meeting required by state law to be open to
the public.
This bill instead would make this prohibition applicable to any
unauthorized tear gas weapon.
(2) Existing law regulates the purchase, possession,
transportation, and use of any tear gas or tear gas weapon and makes
its provisions applicable to, among others, specified peace officers,
licensed private investigators, private patrol operators, employees
of specified state agencies, and minors.
This bill would revise and recast these provisions by repealing
certain licensing requirements administered by the Department of
Justice and other requirements covering oleoresin capsicum
certification and the purchase, possession, or use of tear gas or
tear gas weapons in which this active ingredient is used. The
department would be authorized to issue a permit for the possession
and transportation of tear gas or tear gas weapons that are not
intended or certified for personal self-defense purposes, upon proof
that good cause exists for the issuance of this permit.
This bill would also repeal the provision that no tear gas or tear
gas weapon shall be possessed, sold, or transported in this state
unless the Department of Justice has certified that particular type
and brand of tear gas weapon to be acceptable. The bill would
make other related, technical and conforming changes.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 171b of the Penal Code is amended to read:
171b. (a) Any person who brings or possesses within any state or
local public building or at any meeting required to be open to the
public pursuant to Chapter 9 (commencing with Section 54950) of Part
1 of Division 2 of Title 5 of, or Article 9 (commencing with Section
11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of, the
Government Code, any of the following is guilty of a public offense
punishable by imprisonment in a county jail for not more than one
year, or in the state prison:
(1) Any firearm.
(2) Any deadly weapon described in Section 653k or 12020.
(3) Any knife with a blade length in excess of four inches, the
blade of which is fixed or is capable of being fixed in an unguarded
position by the use of one or two hands.
(4) Any unauthorized tear gas weapon , as
defined in Sections 12401 and 12402 .
(5) Any taser or stun gun, as defined in Section 244.5.
(6) Any instrument that expels a metallic projectile, such as a BB
or pellet, through the force of air pressure, CO2 pressure, or
spring action, or any spot marker gun or paint gun.
(b) Subdivision (a) shall not apply to, or affect, any of the
following:
(1) A person who possesses weapons in, or transports weapons into,
a court of law to be used as evidence.
(2) (A) A duly appointed peace officer as defined in Chapter 4.5
(commencing with Section 830) of Title 3 of Part 2, a retired peace
officer with authorization to carry concealed weapons as described in
subdivision (a) of Section 12027, a full-time paid peace officer of
another state or the federal government who is carrying out official
duties while in California, or any person summoned by any of these
officers to assist in making arrests or preserving the peace while he
or she is actually engaged in assisting the officer.
(B) Notwithstanding subparagraph (A), subdivision (a) shall apply
to any person who brings or possesses any weapon specified therein
within any courtroom if he or she is a party to an action pending
before the court.
(3) A person holding a valid license to carry the firearm pursuant
to Article 3 (commencing with Section 12050) of Chapter 1 of Title 2
of Part 4.
(4) A person holding a valid tear gas weapon card
pursuant to Section 12403.7 allowing that person to carry the tear
gas or tear gas weapon.
(5) A person who has permission to possess that weapon
granted in writing by a duly authorized official who is in charge of
the security of the state or local government building.
(6)
(5) A person who lawfully resides in, lawfully owns, or is
in lawful possession of, that building with respect to those portions
of the building that are not owned or leased by the state or local
government.
(7)
(6) A person licensed or registered in accordance with, and
acting within the course and scope of, Chapter 11.5 (commencing with
Section 7512) or Chapter 11.6 (commencing with Section 7590) of
Division 3 of the Business and Professions Code who has been hired by
the owner or manager of the building if the person has permission
pursuant to paragraph (5).
(c) As used in this section, "state or local public building"
means a building that meets all of the following criteria:
(1) It is a building or part of a building owned or leased by the
state or local government, if state or local public employees are
regularly present for the purposes of performing their official
duties. A state or local public building includes, but is not
limited to, a building that contains a courtroom.
(2) It is not a building or facility, or a part thereof, that is
referred to in Section 171c, 171d, 626.9, 626.95, or 626.10 of this
code, or in Section 18544 of the Elections Code.
(3) It is a building not regularly used, and not intended to be
used, by state or local employees as a place of residence.
SEC. 2. Section 12403 of the Penal Code is amended to read:
12403. Nothing in this chapter shall prohibit any person who is a
peace officer, as defined in Chapter 4.5 (commencing with Section
830) of Title 3 of Part 2, from purchasing, possessing, transporting,
or using any tear gas or tear gas weapon if the person has
satisfactorily completed a course of instruction approved by the
Commission on Peace Officer Standards and Training in the use of tear
gas .
SEC. 2.
SEC. 3. Section 12403.5 of the Penal Code is amended to
read:
12403.5. Notwithstanding any other provision of law, a person
holding a license as a private investigator or private patrol
operator issued pursuant to Chapter 11 (commencing with Section
7500), Division 3 of the Business and Professions Code, or uniformed
patrolmen employees of a private patrol operator, may purchase,
possess, or transport any tear gas weapon, if it is used solely for
defensive purposes in the course of the activity for which the
license was issued and if the person has satisfactorily
completed a course of instruction approved by the Commission on Peace
Officer Standards and Training in the use of tear gas .
SEC. 3. Section 12403.6 of the Penal Code is amended to read:
12403.6. Provisions within this chapter shall not be construed to
prohibit any Department of Justice or California Environmental
Protection Agency employee, while acting within the scope of his
duties, from possessing any tear gas or tear gas weapon for the
purposes of examination, testing, or court appearance or any other
official activity undertaken pursuant to the provisions of this
chapter.
SEC. 4.
SEC. 4. Section 12403.6 of the Penal Code is repealed.
12403.6. Provisions within this chapter shall not be construed to
prohibit any Department of Justice or Department of Health employee,
while acting within the scope of his duties, from possessing any
tear gas or tear gas weapon for the purposes of examination, testing,
or court appearance or any other official activity undertaken
pursuant to the provisions of this chapter.
SEC. 5. Section 12403.7 of the Penal Code is amended to
read:
12403.7. (a) Notwithstanding any other law, any person may
purchase, possess, or use tear gas and tear gas weapons for the
projection or release of tear gas if the tear gas and tear gas
weapons are approved by the Department of Justice and are
used solely for self-defense purposes, subject to the
following requirements:
(1) No person convicted of a felony or any crime involving an
assault under the laws of the United States, of the State of
California, or any other state, government, or country or convicted
of misuse of tear gas under paragraph (8) shall purchase, possess, or
use tear gas or tear gas weapons.
(2) No person who is addicted to any narcotic drug shall purchase,
possess, or use tear gas or tear gas weapons.
(3) No person shall sell or furnish any tear gas or tear gas
weapon to a minor.
(4) No person who is a minor shall purchase, possess, or use tear
gas or tear gas weapons.
(5) (A) No person shall purchase, possess, or use any tear gas
weapon that expels a projectile, or that expels the tear gas by any
method other than an aerosol spray, or that is of a type, or
size of container, other than authorized by regulation of the
Department of Justice.
(B) The department, with the cooperation of the Environmental
Protection Agency's Office of Environmental Health Hazard Assessment,
hereinafter referred to as "Cal-EPA," shall develop standards
regarding the type of tear gas and tear gas weapons that may lawfully
be purchased, possessed, and used pursuant to this section and
that contains more than 2.5 ounces net weight of
aerosol spray.
(B) Every tear gas container and tear gas weapon that may be
lawfully purchased, possessed, and used pursuant to this section
shall have a label that states: "WARNING: The use of this
substance or device for any purpose other than self-defense is a
felony crime under the law. The
contents are dangerous--use with care."
(D)
(C) After January 1, 1984, every tear gas container and tear
gas weapon that may be lawfully purchased, possessed, and used
pursuant to this section shall have a label that discloses the date
on which the useful life of the tear gas weapon expires.
(6) Effective March 1, 1994, every tear gas container and tear gas
weapon that may be lawfully purchased, possessed, and used pursuant
to this section be accompanied by an insert including directions for
use, first aid information, safety and storage information, and
explanation of the legal ramifications of improper use of the tear
gas container or tear gas product. The Department of
Justice may issue informational guidelines that shall be used as a
minimum standard for compliance with this insert requirement.
(7) Any person who uses tear gas or tear gas weapons except in
self-defense is guilty of a public offense and is punishable by
imprisonment in a state prison for 16 months, or two or three years
or in a county jail not to exceed one year or by a fine not to exceed
one thousand dollars ($1,000), or by both the fine and imprisonment,
except that if the use is against a peace officer, as defined in
Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2,
engaged in the performance of his or her official duties and the
person committing the offense knows or reasonably should know that
the victim is a peace officer, the offense is punishable by
imprisonment in a state prison for 16 months or two or three years or
by a fine of one thousand dollars ($1,000), or by both the fine and
imprisonment.
SEC. 5.
SEC. 6. Section 12403.8 of the Penal Code is amended to
read:
12403.8. (a) Notwithstanding paragraph (4) of subdivision (a) of
Section 12403.7, a minor who has attained the age of 16 years may
purchase and possess tear gas or tear gas weapons pursuant to this
chapter if he or she is accompanied by a parent or guardian, or has
the written consent of his or her parent or guardian.
(b) Notwithstanding paragraph (3) of subdivision (a) of Section
12403.7, a person may sell or furnish tear gas or a tear gas weapon
to a minor who has attained the age of 16 years and who is
accompanied by a parent or guardian, or who presents a statement of
consent signed by the minor's parent or guardian.
(c) Any civil liability of a minor arising out of his or her use
of tear gas or a tear gas weapon other than for self-defense is
imposed upon the person, parent, or guardian who signed the statement
of consent specified in subdivision (b) who shall be jointly and
severally liable with the minor for any damages proximately resulting
from the negligent or wrongful act or omission of the minor in the
use of the tear gas or a tear gas weapon.
SEC. 6.
SEC. 7. Section 12423 of the Penal Code is amended to read:
12423. The Department of Justice may issue a permit for the
possession and transportation of tear gas or tear gas weapons that
are not intended or certified for personal self-defense purposes,
upon proof that good cause exists for the issuance thereof to the
applicant for this permit. The permit may also allow the applicant
to install, maintain, and operate a protective system involving the
use of tear gas or tear gas weapons in any place which is accurately
and completely described in the application for the permit.
SEC. 7.
SEC. 8. Section 12426 of the Penal Code is amended to read:
12426. Permits issued in accordance with this article may be
revoked or suspended by the issuing authority at any time when it
appears that the need for the possession or transportation of the
tear gas or tear gas weapons or protective system involving the use
thereof, has ceased, or that the holder of the permit has engaged in
an unlawful business or occupation or has wrongfully made use of the
tear gas or tear gas weapons or the permit issued.
SEC. 8.
SEC. 9. Section 12435 of the Penal Code is repealed.
SEC. 9. Section 12450 of the Penal Code is amended to read:
12450. Except as otherwise authorized by this chapter, no tear
gas or tear gas weapon shall be possessed, sold, or transported in
this state after January 1, 1971, unless, pursuant to this article,
the Department of Justice has certified that particular type and
brand of tear gas or tear gas weapon to be acceptable.
SEC. 10. Section 12453 of the Penal Code is amended to read:
12453. Any application submitted pursuant to Section 12452 shall
contain all of the following:
(a) Full reports of any investigation conducted by any public or
private agency for the purpose of determining whether the tear gas or
tear gas weapon is acceptable.
(b) A full statement of the composition of each component of the
tear gas or tear gas weapon.
(c) A full statement of the methods used in, and the facilities
and controls used for, the manufacture, processing and packing of the
tear gas or tear gas weapon.
(d) Any samples of tear gas or tear gas weapon and its components
that the department may require.
(e) Specimens of the labeling, instructions, and advertisements
used or proposed to be used for the tear gas or tear gas weapon.
SEC. 11. Section 12458 of the Penal Code is amended to read:
12458. Prior to certification of any tear gas or tear gas weapon,
the department shall request from Cal-EPA a report on each type and
brand of tear gas or the contents of each type and brand of tear gas
weapon submitted to it by the department. At the Attorney General's
discretion, Cal-EPA shall prepare and transmit the report to the
department, and shall also submit supplemental reports whenever the
facts warrant that action. All the reports shall be for the purpose
of aiding the department in determining whether the type and brand of
tear gas or the contents of the dispensed material of the particular
type and brand of tear gas weapon are harmful, toxic, or present any
health hazards to human beings, and shall be based on any one or
more of the following:
(a) Investigations conducted by the facilities of Cal-EPA.
(b) Investigations conducted by independent laboratories.
(c) Any other investigations approved by Cal-EPA.
The applicant shall reimburse Cal-EPA and the Department of
Justice for any actual expenses incurred by the departments in
connection with the reports.
SEC. 12.
SEC. 10. Article 5 (commencing with Section 12450) of Chapter 4 of
Title 2 of the Penal Code is repealed.
SEC. 11. Section 12460 of the Penal Code is repealed.