BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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AB 2333 (Solorio) 3
As Amended June 18, 2012
Hearing date: June 26, 2012
Penal Code
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IMITATION FIREARMS
HISTORY
Source: Airsoft Safety Foundation; California Police Chiefs
Association
Prior Legislation: SB 1315 (DeLeon) -Pending in Assembly Public
Safety, 2012
SB 798 (DeLeon) -Failed passage in Assembly Public
Safety, 2011
AB 352 (Solorio) - Ch. 422, Stats. 2008
AB 2537 (Montanez) -held in Senate Appropriations,
2006
SB 1858 (Dunn) - Ch. 607, Stats. 2004
SB 292 (Roberti) - Ch. 598, Stats. 1993
SB 1795 ( Roberti) - Ch. 1605, Stats.1988
Support: Association of Los Angeles Deputy Sheriffs; California
Association of Firearms Retailers; California
Sportsman's Lobby, Inc.; Outdoor Sportsman's Coalition
of California; Peace Officers Research Association of
California; S/R Industries, Inc.; Crossman Corporation;
Gamo Outdoor USA, Inc.; Riverside Sheriffs Association;
Safari Club International; Umarex USA; California
Probation, Parole and Correctional Association; San
Diego Schools Police Officers Association
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Opposition:California Rifle and Pistol Association; National
Rifle Association
Assembly Floor Vote: Ayes 48 - Noes 24
KEY ISSUE
SHOULD ANY PERSON WHO KEEPS A BB DEVICE WITHIN ANY PREMISES THAT ARE
UNDER THE PERSON'S CUSTODY OR CONTROL, WHO KNOWS OR REASONABLY
SHOULD KNOW THAT A MINOR IS LIKELY TO GAIN ACCESS TO THAT BB DEVICE
WITHOUT THE PERMISSION OF THE MINOR'S PARENT OR LEGAL GUARDIAN, AND
A MINOR OBTAINS ACCESS TO THAT BB DEVICE AND THEREAFTER CARRIES THE
BB DEVICE OFF-PREMISES AND OPENLY DISPLAYS OR EXPOSES THE BB DEVICE
IN A PUBLIC PLACE IN VIOLATION OF SECTION 20170, BE SUBJECT TO CIVIL
FINES, REQUIRED TO ATTEND INSTRUCTIONAL COURSES, AND/OR PERFORM
COMMUNITY SERVICE, AS SPECIFIED?
PURPOSE
The purpose of this bill is to provide that any person who keeps
a BB device within any premises that are under the person's
custody or control, who knows or reasonably should know that a
minor is likely to gain access to that BB device without the
permission of the minor's parent or legal guardian, and a minor
obtains access to that BB device and thereafter carries the BB
device off-premises and openly displays or exposes the BB device
in a public place in violation of Penal Code Section 20170, is
subject to civil fines, required to attend instructional
courses, and/or perform community service, as specified.
Current federal law requires that no person shall manufacture,
enter into commerce, ship, transport, or receive any toy,
look-alike, or imitation firearm ("device"), as defined, unless
such device contains, or has affixed to it a bright orange
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marking, as specified, covering the circumference of the barrel
from the muzzle end for a depth of at least 6 millimeters,
unless exempted, as specified. (15 United States Code � 5001, 15
Code of Federal Regulations �� 1150.2, 1150.3.) This
requirement does not apply to "traditional B-B, paint-ball, or
pellet-firing air guns that expel a projectile through the force
of air pressure." (15 United States Code � 5001(c).)
Current law provides that by the enforcement of this section,
the Legislature occupies the whole field of regulation of the
manufacture, sale, or possession of imitation firearms, as
defined, and that subdivision shall preempt and be exclusive of
all regulations relating to the manufacture, sale, or possession
of imitation firearms, including regulations governing the
manufacture, sale, or possession of BB devices and air rifles,
as defined. (Gov. Code � 53071.5.)
Current law 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.) Violations are
punishable by a civil fine in an action brought by the city
attorney or the district attorney of up to $10,000 for each
violation. (Penal Code � 20165.)
Current law defines "imitation firearm" for most purposes to
mean 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.
However, for purposes of the prohibition on commercial
manufacture, sale, etc., "imitation firearm" does not include
any of the following:
A non-firing collector's replica that is historically
significant, and is offered for sale in conjunction with a
wall plaque or presentation case.
A BB device.
A device where the entire exterior surface of the device
is white, bright red, bright orange, bright yellow, bright
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green, bright blue, bright pink, or bright purple, either
singly or as the predominant color in combination with
other colors in any pattern, as provided by federal
regulations governing imitation firearms, or where the
entire device is constructed of transparent or translucent
materials which permits unmistakable observation of the
device's complete contents, as provided by federal
regulations governing imitation firearms. (Penal Code �
16700.)
Current law defines "BB device" as any instrument that expels a
projectile, such as a BB or a pellet, not exceeding 6mm caliber,
through the force of air pressure, gas pressure, or spring
action, or any spot marker gun. (Penal Code � 16250.)
Current law provides that sale of any BB device to a minor is a
misdemeanor, punishable by up to 6 months in county jail, a fine
of up to $1,000, or both. (Penal Code � 19910.)
Current law provides 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 6 months in county jail, a fine
of up to $1,000, or both. (Penal Code � 19915.)
Current law provides that any person who changes, alters,
removes, or obliterates 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, is guilty of a
misdemeanor. This section does not apply to a manufacturer,
importer, or distributor of imitation firearms. This section
does not apply to lawful use in theatrical productions,
including motion pictures, television, and stage productions.
(Penal Code � 20150.)
Current law provides that any imitation firearm manufactured
after July 1, 2005, shall, at the time of offer for sale in this
state, be accompanied by a conspicuous advisory in writing as
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part of the packaging, but not necessarily affixed to the
imitation firearm, 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.
Any manufacturer, importer, or distributor that fails to comply
with this advisory for any imitation firearm manufactured after
July 1, 2005, shall be liable for a civil fine for each action
brought by a city attorney or district attorney of not more than
one thousand dollars ($1,000) for the first action, five
thousand dollars ($5,000) for the second action, and ten
thousand dollars ($10,000) for the third action and each
subsequent action. (Penal Code � 20160.)
Current law provides that no person may openly display or expose
any imitation firearm in a public place, as defined. (Penal
Code � 20170.) A violation 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.)
Current law provides that every 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.)
Current law provides that possession of an imitation firearm
while on school grounds, while going to or coming from school,
during the lunch period whether on or off the campus, during, or
while going to or coming from a school sponsored activity, or if
the possession is otherwise related to school activity or school
attendance, is grounds for expulsion. (Education Code �
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48900(m).)
Current law provides that if all of the following conditions are
satisfied, a person shall be punished by imprisonment in a
county jail for up to one year, by a fine of up to $1,000, or
both:
The person keeps a pistol, revolver, or other firearm
capable of being concealed upon the person, loaded or
unloaded, within any premises that are under the person's
custody or control.
The person knows or reasonably should know that a child
is likely to gain access to that firearm without the
permission of the child's parent or legal guardian.
The child obtains access to that firearm and thereafter
carries that firearm off-premises. (Penal Code � 25200(a).)
Current law provides that if all of the following conditions are
satisfied, a person shall be punished by imprisonment in a
county jail for up to one year, by a fine of up to $5,000, or
both:
The person keeps any firearm within any premises that
are under the person's custody or control.
The person knows or reasonably should know that a child
is likely to gain access to the firearm without the
permission of the child's parent or legal guardian.
The child obtains access to the firearm and thereafter
carries that firearm off-premises to any public or private
preschool, elementary school, middle school, high school,
or to any school-sponsored event, activity, or performance,
whether occurring on school grounds or elsewhere.(Penal
Code � 25200(b).)
This bill provides that any person who keeps a BB device within
any premises that are under the person's custody or control, who
knows or reasonably should know that a minor is likely to gain
access to that BB device without the permission of the minor's
parent or legal guardian, and a minor obtains access to that BB
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device and thereafter carries the BB device off-premises and
openly displays or exposes the BB device in a public place in
violation of Section 20170, is subject to the following:
For the first instance, a written warning or a
requirement to successfully complete a course of
instruction applicable to BB devices that includes the
principles of safe handling and storage, or both the
written warning and successfully completing the course of
instruction.
For the second instance, a civil fine not to exceed $100
or a requirement to successfully complete an advanced
course of instruction applicable to BB devices that
includes the principles of safe handling and storage, or
both the fine and successfully completing the course of
instruction.
For a third or subsequent instance, a civil fine not to
exceed $200 or a requirement to perform community service,
or both that fine and community service.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
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Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
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On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
COMMENTS
1. Need for This Bill
According to the author:
�P]ublic safety officials have expressed concerns that
minors and their guardians often fail to observe
existing imitation firearm laws because there lacks an
enforceable punishment for compliance. It is unlawful
to store firearm weapons where a child is likely to
gain access to the weapon, but there lack a similar
penalty to ensure safe storage of imitation firearms.
There have been documented cases where a child has
brought and displayed imitation firearms in academic
settings, which has caused other students and teachers
to reasonably fear for their safety and security. Law
enforcement representatives have suggested that civil,
not criminal, penalties (starting with a written
warning) are more effective punishments to apply on
adults whose negligent actions result in a minor
obtaining unlawful possession of an imitation firearm.
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2. What This Bill Would Do
Current law requires handgun owners to store the weapon in such
a way that the weapon is inaccessible to children. (Penal Code
� 25400(a).) If the owner fails to do so and a child finds the
guns and takes it off the premises without their parents'
permission, the owner is subject to up to one year in county
jail and a fine of up to $1,000. If the child obtains access to
the firearm and thereafter carries that firearm off-premises to
any public or private preschool, elementary school, middle
school, high school, or to any school-sponsored event, activity,
or performance, whether occurring on school grounds or
elsewhere, then the owner would be subject to up to one year in
jail and a fine of up to $5,000. (Penal Code � 25400(b).)
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This bill would take a similar approach to safe storage of BB
devices, such as airsoft guns, but with significantly lower
penalties. This bill would only impose penalties if the BB
device was stored in such a way that the person in control of a
premises would reasonable know that a minor is likely to gain
access to that device without the permission of the minor's
parent or guardian and a minor then takes the BB device off the
premises and displays it in public. The penalty for the first
offense would be a warning or a requirement to complete a
safe-storage course. Subsequent offense could result in small
civil fines, a requirement to take a safe storage course and/or
perform community service.
3. Statement in Support
The California Police Chiefs Association, Inc. states:
Assembly Bill 2333 � ] provides an important tool to
assure that all imitation firearms are treated with
respect. The law prohibits the use of imitation
firearms on public property without adult supervision.
Assembly Bill 2333 will permit the imposition of
civil fines for those parents who permit the public
use of imitation firearms in the absence of that
supervision.
4. Statement in Opposition
The National Rifle Association states:
In Assembly Bill 2333, the proponents seek to create a
new negligent storage law for BB guns, airsoft
imitation firearms and paintball devices. Assembly
Bill 2333 creates an absurd sweeping legal liability
on parents by punishing the parent for a minor's use
of any type of "BB device" without the parent's
"permission". A "minor" is someone under the age of
18, so the parent is subject to liability if a 17 year
old ever takes any bb, airsoft, or paintball device
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out of the house without the parent's permission. This
new legal liability will create a number of
problematic legal issues that the bill does not define
or speak to.
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AB2333 does not define what permission a parent has to
provide, so what will trigger legal liability? Will
that be a valid defense?
AB2333 does not define what a BB device "safety"
course of instruction is or what agency will �have]
that responsibility for creating the program and who
will pay for it!
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