BILL ANALYSIS Ó
SB 798
Page 1
Date of Hearing: July 5, 2011
Counsel: Milena Nelson
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 798 (De Leon) - As Amended: June 28, 2011
FOR VOTE ONLY
SUMMARY : Removes the state preemption of any local ordinances
regarding the manufacture, sale, or possession of imitation
firearms, BB devices, and air rifles.
EXISTING LAW :
1)States that the Legislature occupies the whole field of
regulation of the manufacture, sale, or possession of
imitation firearms, as specified, and that section 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 specified.
(Government Code Section 53071.5.)
2)States that prohibitions on the sale, purchase, manufacture,
transportation, receipt or distribution for commercial
purposes does not apply to the following devices:
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 BB device; or,
c) 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 purpose, 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
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materials which permits unmistakable observation of the
device's complete contents, as provided by federal
regulations governing imitation firearms. (Penal Code
Section 16700.)
3)States that any person who, for commercial purposes,
purchases, sells, manufactures, ships, transports,
distributes, or receives, by mail order or in any other
manner, an imitation firearm except as authorized by this
section shall be liable for a civil fine in an action brought
by the city attorney or the district attorney of not more than
$10,000 for each violation. ÝPenal Code Section 12555(a).]
4)Authorizes the manufacture, purchase, sale, shipping,
transport, distribution, or receipt, by mail or in any other
manner, of imitation firearms if the device is manufactured,
purchased, sold, shipped, transported, distributed, or
received for any of the following purposes:
a) Solely for export in interstate or foreign commerce;
b) Solely for lawful use in theatrical productions,
including motion picture, television, and stage
productions;
c) For use in a certified or regulated sporting event or
competition;
d) For use in military or civil defense activities, or
ceremonial activities; or,
e) For public displays authorized by public or private
schools. ÝPenal Code Section 12555(b).]
5)Defines a "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. ÝPenal Code Section
12001(g).]
6)States that the sale of a BB device to a minor is a
misdemeanor. (Penal Code Section 12551.)
7)States that furnishing a BB device to a minor, including
loaning or transfer without a sale, is a misdemeanor. (Penal
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Code Section 12552.)
8)States that any person who, for commercial purposes,
purchases, sells, manufacturers, ships, transports,
distributes, or receives a firearm, where the coloration of
the entire exterior surface of the firearm is bright orange or
bright green, either singly, 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 for the
county of not more than $10,000. (Penal Code Section
12020.3.)
9)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 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. 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. Ý15
U.S.C. Section 5001(a) to (c).]
10)Preempts 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
prohibit the sale or manufacture of any look-alike, nonfiring,
collector replica of an antique firearm developed prior to
1898, or prohibit the sale (other than prohibiting the sale to
minors) of traditional B-B, paint ball, or pellet-firing air
guns that expel a projectile through the force of air
pressure. Ý15 U.S.C. Section 5001(g).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "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 copycat
firearms .The use of lethal force against persons carrying
copycat BB devices is a significant threat to public safety.
The proliferations of these copycat BB devices which are
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becoming regular tools in crimes to intimidate residents and
more and more frequently triggering officer involved
shootings.
"SB 798 will repeal Government Code Section 53071.5 to allow
local governments to devise their own solution the problem of
copycat firearms.
"On December 18, 2010, the Los Angeles Times wrote about the
tragic accidental shooting of a 13-year-old boy by a Los
Angeles Police Department (LAPD) officer. According to the
LAPD, the 13-year-old boy and two of his friends were playing
that evening in the middle of a dark street shooting pellets
at one another with fake handguns. When the two LAPD officers
stopped to investigate, the three boys ran away and one
produced a copycat firearm that, a LAPD officer thought was a
real handgun. LAPD Chief Charlie Beck declared the accidental
shooting a tragedy and further stated, 'We have seen far too
much heartbreak involving these types of realistic-looking
guns that are labeled as toys.' The copycat firearm used by
the 13-year-old boy looked identical to a real gun and it even
had the exact dimensions of a Beretta 92 F. This shooting is
not an isolated incident; this problem includes the shooting
and death of Rita Elias in Modesto by the Stanislaus County
Sheriff's and the shooting of Robert McBride by the San Diego
Police. Both of these officer involved shootings occurred in
April, 2011.
"As a result of the senseless shooting of the 13-year-old boy in
Glassell Park and others throughout California, SB 798 is
desperately needed to protect the public from copycat
firearms. These shooting are tragedies and local police chiefs
and county sheriffs working with their local elected officials
know best how to solve this problem. Every local jurisdiction
has specific issues and problems with the proliferation of
copycat firearms. Therefore SB 798 should be enacted to allow
for this public safety problem to be addressed and solved
locally.
2)Federal Preemption Issue : Article VI of the U.S. Constitution
contains the supremacy clause, which provides that the
Constitution, and the laws made pursuant to it, are the
supreme law of the land. If there is a conflict between
federal and state law, federal law controls and state law is
invalidated. Traditionally, the Supreme Court has identified
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two major situations where preemption occurs. One is where
federal law expressly preempts state or local law and the
other is where preemption is implied by clear congressional
intent to preempt state or local law.
Here, Congress expressly stated, "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." Ý15 USC
5001(g).] Because federal law requires only that BB devices
have a "blaze orange plug inserted in the barrel" Ý15 USC
5001(b)(1)], any local ordinances passed which require any
alternative markings would be preempted by federal law and
invalidated by the courts.
3)Previous Legislation :
a) AB 1455 (McLeod), Chapter 246, Statutes of 2003, exempts
BB devices from the list of imitation firearms required to
be brightly colored.
b) SB 1858 (Dunn), Chapter 607, Statutes of 2004,
established a new definition for imitation firearms and
generally prohibited the open display or exposure of
imitation firearms in public places.
REGISTERED SUPPORT / OPPOSITION :
Support
Alameda Police Department
AFSCME
California Paintball Safety Coalition
Los Angeles County Sherriff's Department
Los Angeles Police Department
Los Angeles School Police Department
Mayor, City of Los Angeles
Sacramento Police Department
Women Against Gun Violence
Opposition
Airgun Information International
California Association of Firearms Retailers
California Outdoor Heritage Alliance
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California Rifle and Pistol Association, Inc.
Crossman Corporation
Gamo Outdoor USA
Gun Owners of California
KWA Performance Industries, Inc.
National Collegiate Paintball Association
National Rifle Association
National Shooting Sports Foundation, Inc.
San Marino Police Department
SoftAir USA
S/R Industries, Inc.
Umarex USA, Inc.
Velocity Paintball
388 private individuals
Analysis Prepared by : Milena Nelson / PUB. S. / (916)
319-3744