BILL NUMBER: SB 1858 ENROLLED
BILL TEXT
PASSED THE SENATE AUGUST 26, 2004
PASSED THE ASSEMBLY AUGUST 18, 2004
AMENDED IN ASSEMBLY AUGUST 16, 2004
AMENDED IN ASSEMBLY JULY 28, 2004
AMENDED IN ASSEMBLY JUNE 29, 2004
AMENDED IN ASSEMBLY JUNE 8, 2004
AMENDED IN SENATE APRIL 29, 2004
AMENDED IN SENATE MARCH 25, 2004
INTRODUCED BY Senator Dunn
(Principal coauthors: Assembly Members Negrete McLeod and
Spitzer)
FEBRUARY 20, 2004
An act to amend Section 53071.5 of the Government Code, to amend
Section 417.4 of, to add Sections 12550, 12553, 12554, 12555, and
12556 to, to repeal Section 417.2 of, and to amend the heading of
Article 1 (commencing with Section 12550) of Chapter 6 of Title 2 of
Part 4 of, the Penal Code, relating to imitation firearms, and
declaring the urgency thereof, to take effect immediately.
LEGISLATIVE COUNSEL'S DIGEST
SB 1858, Dunn. Imitation firearms.
Existing law defines "imitation firearm" which definition excludes
BB guns.
This bill would include a BB device within the definition of
"imitation firearm" for certain purposes.
Existing law generally regulates commerce in imitation firearms,
as specified. This bill would repeal, recast and add those
provisions, and expand certain exceptions to the scope of those
provisions regulating commerce of imitation firearms.
Existing law, subject to exceptions, makes it an offense to draw
or exhibit an imitation firearm in a threatening manner, as
specified.
This bill would expand the definition of imitation firearm for
purposes of that crime.
By expanding the scope of an existing crime, this bill would
impose a state-mandated local program.
This bill would provide that, subject to exceptions, any person
who alters a device that is not an imitation firearm with the result
that the device appears more like a firearm, as specified, is
punishable as a misdemeanor.
By creating a new crime, this bill would impose a state-mandated
local program.
This bill would provide that any manufacturer, importer, or
distributor of imitation firearms that fails to comply with any
applicable federal law or regulation governing the marking of a toy,
look-alike or imitation firearm as defined by federal law or
regulation is punishable as a misdemeanor.
By creating a new crime, this bill would impose a state-mandated
local program.
This bill would require an advisory label for imitation firearms,
as specified. The bill would provide that failure to provide the
advisory would make a manufacturer, importer, or distributor liable
for a civil fine, as specified.
This bill would, subject to exceptions, make it an offense to
openly display or expose any imitation firearm in a public place.
By creating a new crime, this bill would impose a state-mandated
local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
The bill would declare that it is to take effect immediately as an
urgency statute.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 53071.5 of the Government Code is amended to
read:
53071.5. 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 in Section 12550 of the
Penal Code, 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 described in
subdivision (g) of Section 12001 of the Penal Code.
SEC. 2. Section 417.2 of the Penal Code is repealed.
SEC. 3. Section 417.4 of the Penal Code is amended to read:
417.4. Every person who, except in self-defense, draws or
exhibits an imitation firearm, as defined in Section 12550, 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.
SEC. 4. The heading of Article 1 (commencing with Section 12550)
of Chapter 6 of Title 2 of Part 4 of the Penal Code is amended to
read:
Article 1. BB Devices and Imitation Firearms
SEC. 5. Section 12550 is added to the Penal Code, to read:
12550. As used in this article, the following definitions apply:
(a) "BB device" is defined in subdivision (g) of Section 12001.
(b) "Firearm" is defined in subdivision (b) of Section 12001.
(c) "Imitation firearm" means 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.
SEC. 6. Section 12553 is added to the Penal Code, to read:
12553. Any person who changes, alters, removes, or obliterates
any coloration or markings that are required for by any applicable
state or federal law or regulation, for any imitation firearm, or
device described in subdivision (c) of Section 12555, in any way that
makes the imitation firearm or device look more like a firearm is
guilty of a misdemeanor. This subdivision shall not apply to
manufacturer, importer, or distributor of imitation firearms or to
the lawful use in theatrical productions, including motion pictures,
television, and stage productions.
(b) Any manufacturer, importer, or distributor of imitation
firearms that fails to comply with any applicable federal law or
regulation governing the marking of a toy, look-alike or imitation
firearm as defined by federal law or regulation is guilty of a
misdemeanor.
SEC. 7. Section 12554 is added to the Penal Code, to read:
12554. (a) 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.
(b) 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.
SEC. 8. Section 12555 is added to the Penal Code, to read:
12555. 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 ten thousand dollars ($10,000) for each violation.
(b) The manufacture, purchase, sale, shipping, transport,
distribution, or receipt, by mail or in any other manner, of
imitation firearms is authorized if the device is manufactured,
purchased, sold, shipped, transported, distributed, or received for
any of the following purposes:
(1) Solely for export in interstate or foreign commerce.
(2) Solely for lawful use in theatrical productions, including
motion picture, television, and stage productions.
(3) For use in a certified or regulated sporting event or
competition.
(4) For use in military or civil defense activities, or ceremonial
activities.
(5) For public displays authorized by public or private schools.
(c) As used in this section, "imitation firearm" does not include
any of the following:
(1) A nonfiring collector's replica that is historically
significant, and is offered for sale in conjunction with a wall
plaque or presentation case.
(2) A BB device, as defined in subdivision (g) of Section 12001.
(3) 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.
SEC. 9. Section 12556 is added to the Penal Code, to read:
12556. (a) No person may openly display or expose any imitation
firearm, as defined in Section 12550, in a public place.
(b) Violation of this section, except as provided in subdivision
(c), is an infraction punishable by a fine of one hundred dollars
($100) for the first offense, and three hundred dollars ($300) for a
second offense.
(c) A third or subsequent violation of this section is punishable
as a misdemeanor.
(d) Subdivision (a) shall not apply to the following, when the
imitation firearm is:
(1) Packaged or concealed so that it is not subject to public
viewing.
(2) Displayed or exposed in the course of commerce, including
commercial film or video productions, or for service, repair, or
restoration of the imitation firearm.
(3) Used in a theatrical production, a motion picture, video,
television, or stage production.
(4) Used in conjunction with a certified or regulated sporting
event or competition.
(5) Used in conjunction with lawful hunting, or lawful pest
control activities.
(6) Used or possessed at certified or regulated public or private
shooting ranges.
(7) Used at fairs, exhibitions, expositions, or other similar
activities for which a permit has been obtained from a local or state
government.
(8) Used in military, civil defense, or civic activities,
including flag ceremonies, color guards, parades, award
presentations, historical reenactments, and memorials.
(9) Used for public displays authorized by public or private
schools or displays that are part of a museum collection.
(10) Used in parades, ceremonies, or other similar activities for
which a permit has been obtained from a local or state government.
(11) Displayed on a wall plaque or in a presentation case.
(12) Used in areas where the discharge of a firearm is lawful.
(13) 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, or
where the entire device is constructed of transparent or translucent
materials which permits unmistakable observation of the device's
complete contents. Merely having an orange tip as provided in
federal law and regulations does not satisfy this requirement. The
entire surface must be colored or transparent or translucent.
(e) For purposes of this section, the term "public place" means an
area open to the public and includes streets, sidewalks, bridges,
alleys, plazas, parks, driveways, front yards, parking lots,
automobiles, whether moving or not, and buildings open to the general
public, including those that serve food or drink, or provide
entertainment, and the doorways and entrances to buildings or
dwellings.
(f) Nothing in this section shall be construed to preclude
prosecution for a violation of Section 171b, 171.5, or 626.10.
SEC. 10. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.
SEC. 11. This act is an urgency statute necessary for the
immediate preservation of the public peace, health, or safety within
the meaning of Article IV of the Constitution and shall go into
immediate effect. The facts constituting the necessity are:
In order to effectively regulate imitation firearms for purposes
of promoting public safety, it is necessary that this act take effect
immediately.