BILL ANALYSIS Ó
------------------------------------------------------------
|SENATE RULES COMMITTEE | SB 798|
|Office of Senate Floor Analyses | |
|1020 N Street, Suite 524 | |
|(916) 651-1520 Fax: (916) | |
|327-4478 | |
------------------------------------------------------------
THIRD READING
Bill No: SB 798
Author: De León (D)
Amended: 4/13/11
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 5-2, 4/26/11
AYES: Hancock, Calderon, Liu, Price, Steinberg
NOES: Anderson, Harman
SUBJECT : Firearms: BB devices: imitation firearms
SOURCE : Los Angeles Chief of Police
DIGEST : This bill includes BB devices within
requirements pertaining to imitation firearms" that are
prohibited for manufacture or sale in California unless 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, 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 specified.
ANALYSIS : 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
CONTINUED
SB 798
Page
2
affixed to it a bright orange 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 section 5001, 15 Code
of Federal Regulations sections 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 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 nonfiring 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 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
CONTINUED
SB 798
Page
3
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 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.
CONTINUED
SB 798
Page
4
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 § 48900(m).)
This bill includes BB guns within the current requirements
pertaining to "imitation firearms" that are prohibited for
manufacture or sale in California unless 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, 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,
CONTINUED
SB 798
Page
5
as provided by federal regulations governing imitation
firearms.
Prior Legislation
AB 352 (Solorio), Chapter 422, Statutes of 2008
SB 1858 (Dunn), Chapter 607, Statutes of 2004
SB 292 (Roberti), Chapter 598, Statutes of 1993
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 4/27/11)
Los Angeles Chief of Police (source)
Los Angeles Mayor Antonio Villaraigosa
Women Against Gun Violence
OPPOSITION : (Verified 4/27/11)
National Rifle Association
California Association of Firearms Retailers
National Shooting Sports Foundation, Inc.
ARGUMENTS IN SUPPORT : According to the author's office:
SB 798 was introduced at the request of Los Angeles
Police Chief Charlie Beck to protect Californians,
especially law enforcement officers, from the threat
and dangers caused by fake firearms such as BB guns.
The accidental shooting of residents, especially
minors and young adults, by law enforcement officers
and others is a public safety problem. This problem
must be addressed as these fake guns are often
indistinguishable from real guns and the Legislature
must act swiftly in order to protect the lives of the
public and the brave men and women of law enforcement.
SB 798 will amend Penal Code Section 16700 to require
BB guns to be included in the laws and regulations set
forth for imitation firearms. The incorporation of BB
guns into the laws that governs firearms will help to
make these fake guns distinguishable from real guns
and reduce the proliferation of these fake guns into
CONTINUED
SB 798
Page
6
our communities.
Under existing law, any person who changes, alters,
removes, or obliterates any coloration or markings
that are required by any applicable state or federal
law or regulation is guilty of a misdemeanor.
Additionally, the Penal Code regulates the selling,
distribution, manufacturing and transportation of
imitation firearms and only provides exemptions for
interstate commerce or foreign trade, motion picture
and theatrical performances, sporting and ceremonial
activities. Given the strict restrictions placed upon
imitation firearms, BB guns should also adhere to
these restrictions because similar to imitation
firearms, they illicit the same threats and dangers as
real guns.
ARGUMENTS IN OPPOSITION : The National Shooting Sports
Foundation, Inc., states:
In 2004, legislation (SB 1858, Dunn - Imitation
firearms) was carefully crafted by a working group
comprised of industry, the Department of Justice, and
law enforcement representatives.
It was clear from the outset that all parties wanted
to create legislation that would respond to an
identified specific problem while recognizing,
preserving and protecting the legitimate ceremonial,
theatrical, recreational and sporting uses of these
imitation firearms and BB devices throughout
California.
Specifically, the identified problem was confusion
created among law enforcement officers by some
imitation firearm products which, because of their
unique coloration and features, were not easily
distinguishable from BB devices or real firearms.
This confusion, it was feared, could lead to an
accidental shooting of a child or other person when an
officer responds in the field.
The term "imitation firearm" includes BB Devices, but
it also includes products like toy guns that do not
CONTINUED
SB 798
Page
7
fire projectiles which have the potential to cause
injury.
While BB devices are not firearms, they do propel
projectiles that can result in injury if the BB device
is improperly used. They are not toys and should not
be treated as such.
In recognition of the above, BB device manufacturers
include warnings with their products that they are not
toys and that their improper use can result in injury.
If it is required by statute to color them like toys,
as proposed in SB 798, a dangerous risk of injury will
be created because users could view them as toys and
treat them accordingly. In fact, SB 798 could
unintentionally promote the use of BB devices as if
they are toys.
RJG:nl 4/27/11 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
**** END ****
CONTINUED