BILL ANALYSIS
SENATE COMMITTEE ON Public Safety
Senator John Vasconcellos, Chair A
1999-2000 Regular Session B
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AB 2053 (Wesson) 3
As Amended June 22, 2000
Hearing date: June 27, 2000
Penal Code
SH:mc
IMITATION FIREARMS
HISTORY
Source: Los Angeles City Council Member Mark Ridley-Thomas
Prior Legislation: SB 292 - Chapter 598, Statutes of 1993
SB 1795 - Chapter 1605, Statutes 1988
Support: California Peace Officers' Association; California
Police Chiefs Association; City Council of the City of Los
Angeles; City of Los Angeles Board of Education;
Los Angeles County District Attorney's Office;
Monterey Park Police Department; City of Los Angeles
Police Department; California State Sheriffs'
Association; Association for Los Angeles Deputy
Sheriffs; Los Angeles Police Protective League;
Riverside Sheriff's Association
Opposition:None known
Assembly Floor Vote: Ayes 61 - Noes 11
KEY ISSUES
EXISTING LAW RESTRICTS THE PURCHASE, SALE, MANUFACTURE,
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SHIPPING, AND TRANSPORTATION OF "IMITATION FIREARMS" AND
EXCLUDES FROM THE DEFINITION OF RESTRICTED "IMITATION FIREARMS"
THOSE WHICH HAVE PRESCRIBED MARKINGS OR CONSTRUCTION, I.E., (1)
A BLAZE ORANGE PLUG, (2) A BLAZE ORANGE MARKING ON THE BARREL,
(3) CONSTRUCTION ENTIRELY OF
(CONTINUED)
TRANSPARENT OR TRANSLUCENT MATERIALS WHICH PERMITS UNMISTAKABLE
OBSERVATION OF THE DEVICE'S COMPLETE CONTENTS, OR (4) 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.
(1) SHOULD THE PROHIBITIONS IN CURRENT LAW BE LIMITED TO THOSE WHICH
ARE "FOR COMMERCIAL PURPOSES"?
(2) SHOULD THE APPROVED "BLAZE ORANGE" PLUG OR MARKINGS BE DELETED
FROM LAW SO THAT ONLY AN "IMITATION FIREARM" WHICH MEETS THE
FOLLOWING EXISTING CRITERIA DOES NOT FALL INTO THE RESTRICTED
CATEGORY:
AN IMITATION FIREARM WHERE THE COLORATION OF THE ENTIRE EXTERIOR
SURFACE OF THE DEVICE IS BRIGHT ORANGE OR BRIGHT GREEN, EITHER
SINGLY OR IN COMBINATION?
(3) SHOULD ANY PERSON WHO PURCHASES, SELLS, MANUFACTURES, SHIPS,
TRANSPORTS, DISTRIBUTES, OR RECEIVES, BY MAIL ORDER OR IN ANY OTHER
MANNER, A FIREARM WHERE THE COLORATION OF THE ENTIRE EXTERIOR
SURFACE OF THE FIREARM IS BRIGHT ORANGE OR BRIGHT GREEN, EITHER
SINGLY, OR IN COMBINATION, OR AS THE PREDOMINANT COLOR IN
COMBINATION WITH OTHER COLORS IN ANY PATTERN, IS LIABLE FOR A CIVIL
FINE IN AN ACTION BROUGHT BY THE CITY ATTORNEY OF THE CITY OR THE
DISTRICT ATTORNEY OF THE COUNTY OF NOT MORE THAN TEN THOUSAND
DOLLARS ($10,000) FOR EACH VIOLATION?
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PURPOSE
The purpose of this bill is to (1) add "for commercial purposes"
to the transportation restriction on imitation firearms, (2) to
delete the blaze orange plug and marking characteristics, clear
construction, and other colors but for bright orange or bright
green, which under current law exempt a replica firearm from
existing restrictions; and (3) to make it unlawful to purchase,
sell, manufacture, ship, transport, distribute, or receive, a
firearm which is bright orange or bright green, as specified.
Existing law does the following:
Provides that any person who purchases, sells, manufactures,
ships, transports, distributes, or receives, by mail order or
in any other manner, an imitation firearm shall be liable for
a civil fine of up to $10,000. (Penal Code section 417.2(a).)
Provides that the manufacture, purchase, sale, shipping,
transport, distribution, or receipt, by mail or in any other
manner, of imitation firearms is permitted for any of the
following purposes:
a) Solely for export in interstate or foreign commerce.
b) Solely for use in theatrical productions, including
motion picture, television and stage productions.
c) For use in a certified or regulated athletic event or
competition.
d) For use in military or civil defense activities.
e) For public displays authorized by public or private
schools. (Penal Code section 417.2(b).)
Defines "imitation firearm" as a replica of a firearm that is
so substantially similar in physical properties to an existing
firearm as to lead a reasonable person to conclude that the
replica is a firearm. (Penal Code section 417.2(c).)
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Provides that "imitation firearm" does not include any of the
following:
A nonfiring collector's replica of an antique firearm that was
designed prior to 1898, offered for sale in conjunction with a
wall plaque or presentation case.
A nonfiring collector's replica of a firearm that was designed
after 1898, issued as a commemorative by a nonprofit
organization, and is offered for sale in conjunction with a
wall plaque or presentation.
Any instrument that expels a metallic projectile, such as a BB
or pellet, through the force of air pressure, carbon dioxide
pressure, or spring action, or any spot marker gun.
A firearm that contains, or has affixed to it, a marking
approved by the Secretary of Commerce. (Penal Code section
417.2(d).)
Provides that no person shall manufacture, enter into
commerce, ship, transport, or receive any toy, look-alike, or
imitation firearm ("device"), unless such device contains, or
has affixed to it, one of the markings approved by the
Secretary of State. (Title 15, Code of Federal Regulations,
section 1150.2.)
Provides that an 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 six millimeters from the
muzzle end of the barrel of such firearm. (Title 15, United
States Code, section 5001, subdivision (b)(1).)
Provides that the following markings are approved by the
Secretary of Commerce:
1.A blaze orange solid plug permanently affixed to the muzzle
end of the barrel as an integrated part of the entire
device and recessed no more than six millimeters from the
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muzzle end of the barrel.
2.A blaze orange 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.
3.Construction of the device entirely of transparent or
translucent materials which permits unmistakable
observation of the device's complete contents.
4.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. (Title 15, Code of Federal
Regulations, section 1150.3.)
Provides that every person who, except in self-defense, draws
or exhibits an imitation firearm in a threatening manner
against another person, 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 the county jail for
a term of not less than 30 days. (Penal Code section 417.4.)
Existing law defines "firearm" in the Dangerous Weapons Control
Act to mean "any device, designed to be used as a weapon, from
which is expelled through a barrel a projectile by the force of
any explosion or other form of combustion"; includes for
specified parts of that Act "any frame or receiver of the
weapon" and "shall include any rocket, rocket propelled
projectile launcher, or similar device containing any explosive
or incendiary material whether or not the
device is designed for emergency or distress signaling purposes"
but excludes for some provisions of the Act "an unloaded firearm
that is defined as an 'antique firearm' in Section 921(a)(16) of
Title 18 of the United States Code." (Penal Code sections
12001(b)-(e))
This bill does the following:
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adds as a condition to the prohibited acts in current law "for
commercial purposes."
limits the approved markings to an imitation firearm where the
coloration of the entire exterior surface of the device is
bright orange or bright green, either singly or in
combination.
provides that any person who purchases, sells, manufactures,
ships, transports, distributes, or receives, by mail order or
in any other manner, a firearm where the coloration of the
entire exterior surface of the firearm is bright orange or
bright green, either singly, or in combination, or as the
predominant color in combination with other colors in any
pattern, is liable for a civil fine in an action brought by
the city attorney of the city or the district attorney of the
county of not more than ten thousand dollars ($10,000) for
each violation.
COMMENTS
1. Need for This Bill
According to the author:
AB 2053 provides for the further safety of children and
police by requiring toy guns to be completely made of clear
or neon-colored material. This bill would make it
incredibly easy for officers to immediately recognize a
fake weapon, and would alleviate police officer stress
associated with determining a real life threat from a fake
one.
In 1988, State Senator Roberti passed legislation (SB 1795)
that limited the kinds of toy guns that could be sold,
manufactured or distributed in California. The Senator's
intent in this bill was to safeguard kids, playing with toy
guns, and the actions of police officers having to
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differentiate between real and fake weapons. To allow for
easier identification, SB 1795 required manufacturers to at
least paint or affix a bright colored safety tip to the
front of the toy gun muzzle.
Since 1988, there have been a number of accidental police
shootings nationwide and in California involving kids
playing with toy guns. Most recently in Monterey Park,
California, a youngster playing with a toy gun, while
walking down the street, was shot by police officers who
thought he was in possession of a real weapon.
The United States Secretary of Commerce's office has
indicated that toy guns are in large part manufactured
outside of the United States, or imported from China. So
AB 2053 would not significantly reduce the number of United
States jobs associated with the production of toy guns.
Additionally, a number of domestic retail chains including
Toys R Us, Kay Bee Toy Stores, Kmart, and Target, have
voluntarily removed realistic looking toy weapons from
their shelves to demonstrate their commitment to toy gun
safety.
Kids are purchasing toy guns and removing the safety tips
to create more realistic looking imitations. An elementary
school principal in Los Angeles has had to confiscate a
number of realistic looking toy guns that had the safety
tips removed. There is a real need to revisit safety
precautions taken by the state in relationship to toy guns.
AB 2053 does this and provides the necessary protection
for kids seeking the enjoyment of toy guns.
2. Confrontations Between Police and Juveniles in Which a Toy
Gun was Used
According to the Assembly Committee on Public Safety Committee
analysis of this bill, since 1988, in California, there have
been at least five confrontations between the police and
juveniles in which toy guns were involved: on November 10,
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1999, in Monterey Park, a 13-year-old was injured; on June 9,
1995, in San Francisco, a 12-year-old died; on June 5, 1995, in
Orange County, a five-year-old died; on May 29, 1995, in Carson
Park, a 12-year-old was injured; on April 2, 1995, in Terrace,
an 18-year-old died.
3. Federally Approved Markings Which are not Included in This
Bill
This bill deletes the following currently authorized imitation
firearms markings or construction:
(a) A blaze orange (Federal Standard 595a, February, 1987, color
number 12199, issued by the General Services Administration) or
orange color brighter than that specified by the federal
standard color number, solid plug permanently affixed to the
muzzle end of the barrel as an integral part of the entire
device and recessed no more than 6 millimeters from the muzzle
end of the barrel.
(b) A blaze orange (Federal Standard 595a, February, 1987, color
number 12199, issued by the General Services Administration) or
orange color brighter than that specified by the Federal
Standard color number, 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 6
millimeters.
(c) Construction of the device entirely of transparent or
translucent materials which permits unmistakable observation of
the device's complete contents.
(d) Coloration of the entire exterior surface of the device in
white, bright red, bright yellow, bright blue, bright pink, or
bright purple, either singly or as the predominant color in
combination with other colors in any pattern. (Title 15, Code
of Federal Regulations, section 1150.3.)
4. The Prohibition on Bright Orange or Bright Green "Real"
Firearms
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As now amended, the allowed coloration for imitation firearms
would be limited to bright orange or bright green, either singly
or in combination. The author's staff indicates that anecdotal
indications are that at least some "real" firearms are being
manufactured in colors other than silver or gun metal black.
While there is no indication that any such firearms are being
produced in either bright orange or bright green, the author
intends to preclude "real" firearms from California which are
the same colors as allowed for "imitation firearms." This bill
adds that provision to the section pertaining to "imitation
firearms" which is many sections removed from the Dangerous
Weapons Control Act at sections 12000 et seq. Penal Code
section 12020 specifically addresses a number of restricted and
prohibited dangerous weapons. If bright orange and bright green
"real" firearms are to be restricted in California, it may be
more appropriate - and easier to find - to add a new Penal Code
section 12020.3, as follows:
12020.3 Any person who purchases, sells, manufactures,
ships, transports, distributes, or receives, by mail order
or in any other manner, a firearm where the coloration of
the entire exterior surface of the firearm is bright orange
or bright green, either singly, or in combination, or as
the predominant color in combination with other colors in
any pattern, is liable for a civil fine in an action
brought by the city attorney of the city or the district
attorney of the county of not more than ten thousand
dollars ($10,000) for each violation.
That language would then be deleted from Penal Code section
417.2. The penalty for such weapons would then remain the same
as the penalty for prohibited acts regarding "imitation
firearms."
SHOULD THAT NEW SECTION 12020.3 BE CREATED RATHER THAN BAN SUCH
FIREARMS IN SECTION 417.2?
SINCE "REAL FIREARMS" CANNOT NORMALLY BE SENT "MAIL ORDER" TO
PERSONS WHO ARE NOT DEALERS, SHOULD "BY MAIL ORDER OR ANY OTHER
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MANNER" BE DELETED?
SHOULD THAT LANGUAGE BE LIMITED TO "FOR COMMERCIAL PURPOSES" AS
THE IMITATION FIREARM LANGUAGE WILL BE LIMITED BY THIS BILL?
SHOULD THE SAME CIVIL PENALTY FOR IMITATION FIREARMS BE
MAINTAINED FOR THE PROHIBITED "REAL FIREARMS"?
Because the proposed ban on such firearms is new in this bill,
committee staff has not been able to ascertain if there are
lawful "firearms" which might run afoul of this prohibition.
For example, are some hunting long guns available in bright
orange? Are some bright orange firearms sold for training
purposes to law enforcement?
ARE THERE ANY BRIGHT ORANGE - OR BRIGHT GREEN - FIREARMS
CURRENTLY SOLD OR AVAILABLE IN CALIFORNIA?
5. The Effort to Limit "Imitation Firearms"
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While there is no question that it is a very laudable goal to
make it possible for law enforcement to be able to discern an
"imitation firearm" from a "real" firearm which poses an
immediate danger. If this bill is enacted, it may provide an
additional aid in reaching that goal. However, there will
remain in California "imitation firearms" which are marked or
constructed in the
existing approved manner. This bill does not require that those
imitation firearms be taken from those who lawfully posses them.
The restrictions of this bill will be applicable to those
imitation firearms that are subject to the restrictions
effective January 1, 2000. Thus law enforcement will still be
likely to confront circumstances where judgement calls will
remain difficult and vexing.
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