BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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SB 1315 (De León) 5
As Amended March 29, 2012
Hearing date: April 17, 2012
Government Code
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IMITATION FIREARMS: LOS ANGELES EXEMPTION
HISTORY
Source: Los Angeles Police Chief
Prior Legislation: SB 798 (De León) - 2011, failed passage in
Assembly Public Safety
AB 352 (Solorio) - Ch. 422, Stats. 2008
AB 2537 (Montanez) - 2006, held in Senate
Appropriations
SB 1858 (Dunn) - Ch. 607, Stats. 2004
SB 292 (Roberti) - Ch. 598, Stats. 1993
SB 1795 (Roberti) - Ch. 1605, Stats. 1988
Support: Mayor of Los Angeles
Opposition:Airsoft Safety Foundation; Animal Pest Management
Services, Inc.; California Association of Firearms
Retailers; California Rifle and Pistol Association;
California Sportsman's Lobby; National Rifle
Association; National Shooting Sports Foundation;
Outdoor Sportsman's Coalition of California; Safari
Club International
KEY ISSUE
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SHOULD THE COUNTY OF LOS ANGELES AND ANY CITY WITHIN THE COUNTY
OF LOS ANGELES, BE ALLOWED TO ENACT AND ENFORCE AN ORDINANCE OR
RESOLUTION THAT IS MORE RESTRICTIVE THAN STATE LAW REGULATING
THE MANUFACTURE, SALE, POSSESSION, OR USE OF ANY IMITATION
FIREARM THAT EXPELS A PROJECTILE THAT IS NO MORE THAN 16
MILLIMETERS IN DIAMETER?
PURPOSE
The purpose of this bill is create an exemption from the general
state preemption of the field regarding the regulation of
imitation firearms, to allow the County of Los Angeles, and any
city within the County of Los Angeles, to enact and enforce an
ordinance or resolution that is more restrictive than state law
regulating the manufacture, sale, possession, or use of any BB
device, toy gun, replica of a firearm, or other device, that is
so substantially similar to an existing firearm as to lead a
reasonable person to perceive that the device is a firearm and
expels a projectile that is no more than 16 millimeters in
diameter.
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
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
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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 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 imitation firearms. (Penal Code §
16700.)
Current law defines "BB device" as any instrument that expels a
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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.
Any manufacturer, importer, or distributor that fails to comply
with this advisory for any imitation firearm manufactured after
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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 would provide that, notwithstanding the general state
preemption of the field regarding the regulation of imitation
firearms, the County of Los Angeles, and any city within the
County of Los Angeles, would be permitted to enact and enforce
an ordinance or resolution that is more restrictive than state
law regulating the manufacture, sale, possession, or use of any
BB device, toy gun, replica of a firearm, or other device that
is so substantially similar to an existing firearm as to lead a
reasonable person to perceive that the device is a firearm and
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expels a projectile that is no more than 16 millimeters in
diameter.
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
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
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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.
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
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1. Need for This Bill
According to the author:
Penal Code Section 16700 exempts BB guns from the laws
that govern imitation firearms. Therefore, BB guns
are not required to follow the requirements set forth
for imitation firearms in Penal Code Section 20165. Ý
] Penal Code Section 20165 restricts the sales,
purchase, distribution, manufacturing and
transportation of imitation firearms. This code
section exempts the use of imitation firearms for
interstate or foreign commerce, sporting and
ceremonial military activities, motion picture and
theatrical productions.
As a result of the exemption of BB guns in Penal Code
Section 16700, BB guns are not required to be
distinguishable from a real firearm. Given their
striking resemblance to an actual firearm, BB guns
have caused the accidental shootings of Californians,
especially young adults and minors, by law
enforcement. The use of deadly force by law
enforcement should not be taken lightly and the
Legislature must act to require BB guns to be
distinguishable from real firearms in order to protect
law enforcement and the general public.
SB 798 will Ýamend] Government Code Section 53071.5 to
allow LA County and Cities within LA County to enact
laws and regulations to address the problem of copycat
firearms.
2. BB Guns - Background
According to Wikipedia:
BB guns are a type of air gun designed to shoot
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projectiles named BBs after the birdshot pellet of
approximately the same size. These projectiles are
usually spherical but can also be pointed; those are
usually used for bird hunting. Modern day BB guns
usually have a smoothbore barrel, with a bore diameter
and caliber of 0.177 inches (4.5 mm). BBs for modern
day BB guns are usually steel, plated either with zinc
or copper to resist corrosion, and measure 0.171 to
0.173 inches (4.34 mm to 4.39 mm) in diameter. Some
manufacturers also still make lead balls of slightly
larger diameter and which are generally intended for
use in rifled BB gun barrels, as were formerly used in
BB guns. Some Asian companies make plastic BBs for
recreation.
One of the most famous BB guns is the Red Ryder BB Gun
by Daisy Outdoor Products, modeled after the western
Winchester rifle. First introduced in 1938, the BB
gun became an iconic American toy, and is still in
production today.
Airsoft guns are also commonly referred to as BB guns
or pellet guns, as they also launch spherical
projectiles (typically through a smoothbore barrel).
Common airsoft "BBs" are 6 mm in diameter (0.24
inches), and are generally made of plastic or other
non-metallic materials specifically designed to impart
low target damage (however, such can still be
dangerous if carelessly or improperly used). Airsoft
projectiles are often employed for wargames similar to
paintball. (http://en.wikipedia.org/wiki/BB_gun)
3. Problems Posed by Imitation Firearms
In December 2010, the Los Angeles Times reported:
The shooting of a 13-year-old Glassell Park boy
carrying what turned out to be a pellet gun by a Los
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Angeles Police Department officer is a "tragedy,"
Chief Charlie Beck said.
"This is a tragedy for all involved, but in particular
for the young man injured in this police shooting and
for the officer who believed that he was protecting
himself and his partner from a real threat," Beck said
in a statement. "The pellet gun the juvenile was
using is the exact dimensions of a Beretta 92F and is
indistinguishable from a real handgun on a dark
night."
The chief added: "We have seen far too much heartbreak
involving these types of realistic-looking guns that
are labeled as toys."
The incident occurred about 7:50 p.m. Thursday when
two LAPD officers on routine patrol in the 3000 block
of North Verdugo Road saw three pedestrians in the
middle of the street and stopped to investigate. The
three people ran, with one ending up behind a van.
The officers got out of their patrol car, and one of
them, Officer Victor Abarca, shined a flashlight on
the person behind the van and ordered him to
surrender. Based on the person's 5-foot-7, 200-pound
frame, Abarca assumed that he was a young adult male.
Police said the boy refused to comply and instead
produced what was later found to be a fake Beretta 92F
handgun. Abarca fired his gun, striking the boy. Los
Angeles Fire Department personnel responded and took
the boy to a hospital, where he underwent surgery and
was listed in critical but stable condition.
After the shooting, Abarca and rescue personnel were
stunned to learn that the wounded male was, in fact,
just 13. The other two youths, ages 13 and 14, were
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detained without incident after dropping their fake
handguns. Three faux weapons were recovered.
Detectives from the LAPD's force investigation
division responded to the scene. Police said they had
determined that the subjects had been playing in the
dark street, shooting pellets at one another with the
fake handguns. They said they anticipated that no
criminal charges would be filed against any of the
three juveniles. (LAPD shooting of 13-year-old with
pellet gun is a 'tragedy,' Chief Beck says, Los
Angeles Times, December 18, 2010.
http://latimesblogs.latimes.com/lanow/2010/12/lapd-shoo
ting-of-13-year-old-with-pelet-gun-tragedy-for-all-invo
lved-chief-beck-says.html )
4. State Preemption and the Effect of This Bill
The state Constitution authorizes cities and counties to enact
"and enforce . . . all local police, sanitary and other
ordinances and regulations not in conflict with general laws."
(Article XI, section 7). Since 1988, the Government Code has
provided that the state law preempts local regulation of the
manufacture, sale, or possession of imitation firearms,
including BB devices. (Gov. Code § 53071.5.) State law
requires bright coloration on "imitation firearms" but does not
extend this requirement to "BB guns." (Penal Code §
16700(b)(2).) Last year SB 798 (De León) proposed extending
this requirement to "BB guns" and that bill failed passage in
the Assembly Public Safety Committee. This bill takes a
narrower approach and would allow the County of Los Angeles, or
any city within the county, to enact its own ordinance or
resolution that is more restrictive than state law regulating
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the manufacture, sale, possession, or use of any BB device, toy
gun, replica of a firearm, or other device that is so
substantially similar to an existing firearm as to lead a
reasonable person to perceive that the device is a firearm and
expels a projectile that is no more than 16 millimeters in
diameter.
COULD THIS RESULT IN A PATCHWORK OF INCONSISTENT STATUTES IN LOS
ANGELES COUNTY?
WHAT ISSUES WOULD THAT POSE FOR LAW ENFORCEMENT?
5. Federal Preemption Issues
State or local laws that "interfere with, or are contrary to"
Federal law are invalid under the Supremacy Clause of the United
States Constitution. (US Const., Art VI, cl (2).) This is
known as the doctrine of preemption. One issue raised by this
bill is whether any local ordinance would be preempted by the
Federal Toy Gun Law of 1988. (15 USC § 5001 and its
implementing regulations, 15 CFR 1150.1 et seq.)
Federal law, the Federal Toy Gun Law, regulates the manufacture
of and interstate commerce in "look-alike" or imitation
firearms. (15 USC § 5001.) Federal law requires that "each
toy, look-alike, or 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 6 millimeters from the muzzle end
of the barrel of such firearm." (15 USC § 5001(b)(1).)
However, these requirements do not apply to any ". . .
traditional B-B, paint-ball, or pellet-firing air guns that
expel a projectile through the force of air pressure." (15 USC
§ 5001(c).)
The Federal Toy Gun Law specifically addresses the issue of
preemption, which states:
The provisions of this section shall supersede any
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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--
(i) prohibit the sale or manufacture of any
look-alike, nonfiring, collector replica of an antique
firearm developed prior to 1898, or
(ii) 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. (15 USCS § 5001(g).)
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The question this raises is whether any local ordinance that
would require additional or different markings than federal law
would be inconsistent with the federal law. The New York State
Court of Appeal has addressed this issue in relation to a local
ordinance. The City of New York passed an ordinance which
prohibited look-alike or imitation firearms unless "the entire
exterior surface of such toy or imitation firearm is colored
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; or such toy or imitation firearm is constructed
entirely of transparent or translucent materials which permits
unmistakable observation of the imitation or toy firearm's
complete contents" as well as other requirements. (NYC
Administrative Code 10-131.) In response to the claim of one
manufacturer that the New York City ordinance was preempted by
Federal Toy Gun Law, the Court stated:
The Federal Toy Gun Law only supersedes State or local
laws that "provide for markings or identification
inconsistent with" its terms. The additional
conditions imposed by Administrative Code § 10-131 (g)
do not conflict with the conditions enumerated in the
Federal Toy Gun Law. As the Appellate Division noted
"it is feasible to make a red or purple toy gun Ýwhich
bears the manufacturer's trade name and contains] an
orange Ýplug], thus satisfying both laws". Therefore,
it is not impossible to comply with both the Federal
Toy Gun Law and Administrative Code § 10-131 (g).
That the sale of JA-RU's toy guns is only illegal
under the terms of the local provision is not a basis
for preemption of the City law, as the dissenters
below opine, because "this general principle applies
only where the Legislature has shown its intent to
preempt the field." Indeed, compliance with both the
Federal and local laws at once furthers the intent of
Congress and achieves the public safety objective
underlying each measure. The Federal Toy Gun Law
seeks to impose some regulatory guidelines, in part,
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to override local laws that completely banned toy guns
from certain jurisdictions. In response to these
local bans, the Hobby and Toy Industry of America and
the Toy Manufacturers of America pressed congressional
members for passage of the Federal Toy Gun Law, which
by its terms incorporates markings voluntarily adopted
by the industry. Against this backdrop, the Federal
Toy Gun Law is not an attempt to dominate the field.
States and localities can erect a regulatory framework
that expands upon the Federal foundation and to the
extent that Administrative Code § 10-131 (g)
complements the Federal Toy Gun Law, the City's
regulatory conditions can coexist with the Federal
statute. (City of New York v. Job-Lot Pushcart, 88
N.Y.2d 163, 170-171 (1996).) (citations omitted.)
California, like the New York ordinance, already
requires imitation firearms to contain similar
markings with bright colors throughout the outer
surface. (Penal Code § 16700.) BB guns, however,
were specifically exempted from this requirement.
DOES THE FEDERAL TOY GUN LAW PREEMPT LOCAL LAWS REGULATING
IMITATION FIREARMS?
6. Statement in Support
The Mayor of Los Angeles states:
Currently, local governments are preempted by the
Legislature from regulating imitation firearms. This
lack of local regulation has created a public safety
concern. Given their stunning resemblance to
firearms, these devices have been involved in the
accidental shootings of youth by law enforcement
officers. We must aid our officers in discerning
these devices from real firearms by regulating
imitation firearms. Moreover, the safety of our youth
who unwittingly point these devices at law enforcement
officers is at issue. We must work to eliminate these
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tragic circumstances involving the youth within our
cities. The passage of SB 1315 will provide for the
City of Los Angeles to enact regulations that will aid
the LAPD to clearly distinguish an imitation gun from
a real firearm.
7. Statement in Opposition
Airsoft Safety Foundation states:
If paintball gun owners comply with existing state
imitation firearm laws applying to BB devices, there
should be few, if any problems with paintball gun
possession and use at the local level. The problem is
failure to comply with current state laws, not a need
for more laws at the local level.
State BB device laws are generally adequate, but if
revisions are needed they should be made at the state
level, not by local government.
Since paintball guns may be transported through
several jurisdictions while traveling from a person's
home to a place where they may be used, such as a
paintball shooting facility, statewide uniformity of
laws is necessary. If each local jurisdiction has its
own laws, a person could easily and unknowingly be in
an out of compliance while enroute.
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