BILL ANALYSIS Ó
SB 1315
Page 1
Date of Hearing: July 3, 2012
Counsel: Milena Blake
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 1315 (De Leon) - As Amended: March 29, 2012
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 within the County of Los
Angeles. Specifically, this bill : allows the County of Los
Angeles or any city within that county 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
meets both of the following:
1)The device 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;
and
2)The device expels a projectile that is no more than 16
millimeters in diameter.
EXISTING LAW :
1)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 BB, 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).]
2)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
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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 BB, paint ball, or pellet-firing air
guns that expel a projectile through the force of air
pressure. Ý15 U.S.C. Section 5001(g).]
3)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.)
4)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 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
Section 16700.)
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 any person who, for commercial purposes,
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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).]
7)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).]
8)States that the sale of a BB device to a minor is a
misdemeanor. (Penal Code Section 12551.)
9)States that furnishing a BB device to a minor, including
loaning or transfer without a sale, is a misdemeanor. (Penal
Code Section 12552.)
10)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.)
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FISCAL EFFECT : Unknown.
COMMENTS :
1)Author's Statement : According to the author, "SB 1315 was
introduced at the request of Los Angeles Police Chief Charlie
Beck in order to protect Californians, especially law
enforcement officers, from the dangers caused by imitation
firearms. Every day the men and women who serve as law
enforcement officers must make split second decisions to
determine if it is appropriate to use deadly force to protect
our communities.
"This quick and life changing decision is made even more
difficult given that these fake guns look exactly like real
firearms. Accidental shootings, especially the shootings of
minors and young adults, by law enforcement officers and
others is tragic.
"You may recall SB 798, a bill that was passed by this
legislative body last year and proposed that BB guns adhere to
the same laws and regulations set forth for imitation
firearms. This bill (SB 1315) provides a narrow approach to
this outstanding problem by exempting cities in LA County from
a current State preemption that prevents cities from adopting
ordinances related to imitation firearms. This bill would
simply allow cities within LA County to enact and enforce
ordinances that will ensure the safety of our men and women in
uniform as they relate to these imitation guns. This bill is
supported by Los Angeles County Sherriff Leroy Baca, Los
Angeles Mayor Antonio Villaraigosa."
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
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
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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)Exclusion of Paintball Guns : The provisions of this bill
would not allow the County of Los Angeles or cities therein to
regulate BB devices with a projectile greater than 16
millimeters, primarily paintball guns. The author states that
the intent of this bill is to prevent accidental shootings
like the one that occurred in December of 2010. A quick
Google Image search of "paintball guns" yields results that
look substantially similar to firearms. It is unclear why
these guns will not create the same confusion as guns that
fire a projectile smaller than 16 millimeters.
4)Argument in Support : According to the Mayor of Los Angeles,
"Currently, local governments are preempted by the Legislature
from regulating imitation firearms. This lack of local
regulation has created a public safety problem. 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 tragic circumstances involving
the youth within our cities. The passage of SB 1315 will
provide for the City of Los Angeles to enact local regulations
that will aid the LAPD to clearly distinguish an imitation gun
from a real firearm."
5)Argument in Opposition :
a) According to the Airsoft Safety Foundation , "If BB
device owners comply with existing state imitation firearm
laws, there should be few, if any, problems with BB device
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.
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"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 BB devices may be transported through several
jurisdictions while traveling from a person's home to a
place where they may be used, such as a recreational
shooting facility, statewide uniformity of laws is
necessary. If each local jurisdiction has its own laws, a
person could easily and unknowingly be in and out of
compliance while en route.
"The need for state wide uniformity of laws affecting the
possession and use of paintball guns is obvious. Local
laws affecting BB devices are not appropriate."
b) According to the Crossman Corporation , "SB 1315 permits
and invites ill-advised local laws that would: (1)
jeopardize the safety of police officers and the public;
(2) create inconsistent and unfair regulations; (3) be
preempted by federal law; (4) result in costly and
unnecessary litigation; and (5) negatively impact
California's local economy?
"Federal law preempts any law that would ban the sale of
airguns. 15 U.S. C. ÝSection] 5001(g) ('no state shall--
?(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.')?
"California courts also recognize this federal preemption.
See, In re Arturo H., 42 Cal.App.4th 1694, 1700, 51
Cal.Rptr.2d 5 (1996) ('Section 12001.1 appears to have been
deleted solely because of a concern that federal law had
preempted state regulation of the sales of pellet guns to
anyone other than minors.' and 'Again, it appears that
pellet guns are excepted from restrictions on the sale of
imitation firearms only because of a concern that
regulation of pellet gun sales to adults might be preempted
by federal law.').
"Traditional airguns do not contain orange markings at the
muzzle or around the barrel. Traditional airguns are not
brightly colored or transparent. Therefore, any law
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requiring airguns to have such markings would effectuate a
ban on the sale of traditional airguns and is preempted by
federal law?
"Any law requiring airguns to look like a toy is not wise.
It creates a dangerous situation and potential liability
for airgun manufacturers. Airguns are purposefully
designed and manufactured to look like real guns. Our
company and the industry will fight any law requiring then
to look like toys. Naturally, this would result in a
wasteful expenditure of tax payers' monies by Los Angeles
County and/or certain cities?
"Federal law also preempts and supersedes any state or local
law that requires markings inconsistent with federal law.
15 U.S.C. ÝSection] 5001(g) ('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?'); 15 CRF 1150.5 ('In accordance with? 15 U.S.C.
5001(g), the provisions of section 4(a) of that Act and the
provisions of this part supersede any provision of State or
local laws or ordinances which provides for markings or
identification inconsistent with the provisions of section
4 of that Act or the provisions of this part.').
"This means no state or local law can require airguns to have
any markings. The federal statute specifically exempts
traditional airguns from the marking requirements. 15
U.S.C. ÝSection] 5001(c) ('For purposes of this section,
the term 'look-alike firearm'? does not include any ?
traditional B-B, paint-ball, or pellet-firing air guns that
expel a projectile through the force of air pressure.')
True to the statute, the federal regulations state, 'This
part does not apply to: ? (b) traditional B-B, paint-ball,
or pellet-firing air guns that expel a projectile through
the force of compressed air, compressed gas or mechanical
spring action, or any combination thereof, as described in
American Society for Testing and Materials standard F
589-85, Standard Consumer Safety Specification for
Non-Powder Guns, June 28, 1985.' 15 CRF 1150.1.
"Thus, federal law does not require airguns to have markings,
and airgun manufacturers, because of the nature of their
products, choose not to make airguns that are brightly
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colored, transparent, or toy-like in appearance. Any law
stripping away that choice and requiring airguns to have
any markings is 'inconsistent with' federal law and,
therefore, expressly preempted?
"It is suggested federal preemption does not apply, and City
of New York v. Job-Lot Pushcart, 88 N.Y.2d 163 (1996) is
cited. The Job-Lot case did not involve an airgun, an
airsoft gun, or any gun that expelled a projectile. The
case involved toys, not capable of causing injury. Neither
airguns nor airsoft guns are toys. The New York Court of
Appeals actually said, 'ÝT]he plain language employed by
Congress demonstrates that ? State regulation of ? B-B
guns, paint ball guns, or pellet-firing air guns is
expressly preempted under 15 U.S.C. ÝSection] 5001(g),
which bars any State from prohibiting the sale of such
devices?' This New York case has no factual or legal
significance in light of the products at issue and the
California jurisprudence on preemption."
c) According to the owner of Animal Pest Management
Services, Inc. (APMS) , "BB devices (pellet guns) are
frequently used for the control of pests where no other
realistic option for their control exists. APMS has
customers is several different communities within Los
Angeles County. If the county, or communities within the
county, enact differing BB device laws, if could seriously
harm the business operations of APSM or even curtail them
altogether.
"It is important to the success of our business that there be
uniformity of BB device laws in each of the communities and
counties where APMS has customers. The only way to achieve
this is through statewide laws. State preemption over
local BB device laws must not be disrupted by the creation
of exemptions for various local governments."
6)Related Legislation : SB 798 (De Leon), would have removed the
state preemption of any local ordinances regarding the
manufacture, sale, or possession of imitation firearms, BB
devices, and air rifles. SB 798 failed passage in this
committee.
7)Previous Legislation :
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a) 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.
b) AB 1455 (McLeod), Chapter 246, Statutes of 2003, exempts
BB devices from the list of imitation firearms required to
be brightly colored.
REGISTERED SUPPORT / OPPOSITION :
Support
Office of the Mayor of Los Angeles
Opposition
Airsoft Extreme
Airsoft Safety Foundation
Airsoft Wholesaler Inc.
Airsoft Zone Corporation
Airsplat.com
Animal Pest Management Services, Inc.
California Rifle and Pistol Association, Inc.
California Association of Firearms Retailers
Crossman Corporation
EDO Trading Inc.
KTT International
KWA Performance Industries, Inc.
National Shooting Sports Foundation, Inc.
Outdoor Sportsmen's Coalition of California
PWC United Ventures LLC
S/R Industries, Inc.
Safari Club International
Specialized Distribution
Tac City
The California Sportsman's Lobby, Inc.
The Wurster, Inc.
Umarex USA
Xtreme Airsoft Zone
601 Private Individuals
Analysis Prepared by : Milena Blake / PUB. S. / (916) 319-3744
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