BILL ANALYSIS
SB 1858
Page A
Date of Hearing: June 22, 2004
Counsel: Harry Ermoian
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Mark Leno, Chair
SB 1858 (Dunn) - As Amended: June 8, 2004
As Proposed to be Amended in Committee
SUMMARY : Establishes a new definition for imitation firearms,
generally prohibits the open display or exposure of imitation
firearms in public places, and make numerous other changes
related to imitation firearms. Specifically, this bill :
1)Establishes the Article "BB Devices and Imitation Firearms"
within existing firearm laws.
2)Defines "imitation firearm" as "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."
3)Defines "BB device" and "firearm" by reference to existing
statutory definitions.
4)Creates a misdemeanor for a person to alter or remove any
required coloration or markings on an imitation firearm or
another device, as specified, to make it look more like a
firearm. This would not apply to manufacturers, importers, or
distributors, or to use of imitation firearms in theatrical
productions.
5)Creates a misdemeanor for any manufacturer, importer, or
distributor of imitation firearms that fails to comply with
federal marking requirements.
6)Provides that for any imitation firearm manufactured after
July 1, 2005 and offered for sale in California shall, at the
time of sale, be accompanied by a "conspicuous advisory" that
explains the imitation firearm may be mistaken for a real
firearm, that altering the coloration or markings is dangerous
and may be a crime, and that brandishing or displaying the
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imitation firearm in public may cause confusion and may be a
crime.
7)Provides that any manufacturer, importer, or distributor that
fails to comply with the advisory requirement shall be liable
for a civil fine for each action brought by a city attorney or
district attorney. The fine schedule would be a maximum of
$1,000 for a first offense; a maximum $5,000 for a second
offense; and a maximum of $10,000 for a third or subsequent
offense.
8)Relocates, renumbers, and amends the existing statute
regulating the purchase, sale, manufacture, transport, or
receipt of an imitation firearm.
a) Retains the existing civil fine for any person who, for
commercial purposes, purchases, sells, manufactures,
distributes or receives, by mail order or any other manner,
an imitation firearm.
b) Retains the existing limited circumstances under which
an imitation firearm may be purchased, sold, shipped,
transported, distributed, or received, but also adds the
"ceremonial activities" as a permissible circumstance, as
well as replacing "athletic event" with "sporting event."
c) Deletes the definition of "imitation firearm" from this
section in recognition of the applicability of the new
definition established in this bill.
d) Retains specified exceptions to the limitations in this
section:
i) Deletes the exception for "a nonfiring collector's
replica of a firearm that was designed after 1898, is
historically significant, was issued as a commemorative
by a nonprofit organization, and is offered for sale in
conjunction with a wall plaque or presentation case."
ii) Deletes the descriptive definition of a "BB device"
and retains the cross-reference definition.
iii) Expands the current coloration exception for
imitation firearms where the entire surface is either
bright orange or bright green, either singly or in
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combination, to also include "a device" where its entire
exterior surface 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.
9)Creates the offense of openly displaying or exposing an
imitation firearm in a public place, punishable as an
infraction for the first two offenses, carrying a fine of $100
and $300, respectively. A third or subsequent violation would
be punishable as a misdemeanor.
10)Defines "public place" for purposes of the offense as "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."
11)Provides that the "public place" prohibition shall not apply
when the imitation firearm is:
a) Packaged or concealed so that it is not subject to
public viewing.
b) Displayed or exposed in the course of commerce,
including commercial film or video productions, or for
service, repair, or restoration of the imitation firearm.
c) Used in a theatrical production, a motion picture,
video, television, or stage production.
d) Used in conjunction with a certified or regulated
sporting event or competition.
e) Used in conjunction with lawful hunting, or lawful pest
control activities.
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f) Used or possessed at certified or regulated public or
private shooting ranges.
g) Used at fairs, exhibitions, expositions, or activities
permitted by a government agency or museum collection.
h) Used in military, civil defense, or civic activities,
including flag ceremonies, color guards, parades, award
presentations, historical re-enactments, and memorials.
i) Used for public displays authorized by public or private
schools.
j) Used in parades, ceremonies, or activities permitted by
local or state government.
aa) Displayed on a wall plaque or in a presentation case.
bb) Used in areas where discharge a firearm is otherwise
lawful.
cc) 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.
12)Amends the existing brandishing statute to incorporate the
revised definition of "imitation firearm".
13)Amends the existing statute that grants the Legislature
exclusive authority to regulate the manufacture, sale, or
possession of imitation firearms to cross-reference the
revised definition.
14)Deletes cross-references to violations of Penal Code Sections
417.1 and 417.2 in the existing 10-year prohibition from
owning or possessing a firearm statute.
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15)Contains an urgency clause.
EXISTING LAW :
1)Provides that an imitation firearm is a replica of a firearm
so substantially similar in physical properties to an existing
firearm as to lead a reasonable person to conclude that the
replica is a firearm. [Penal Code Section 417.2(c).]
2)Provides that any person who, for commercial purposes,
purchases, sells, manufactures, distributes or receives, by
mail order or any other manner, an imitation firearm shall be
liable for a civil fine of not more than $10,000 for each
violation. [Penal Code Section 417.2(a).]
3)States that the manufacturing, purchasing, selling, shipping,
transporting, distributing, or receiving of imitation firearms
is permitted if the devices are sold or received:
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 athletic event or
competition;
d) For use in military or civil defense activities; or,
e) For public displays authorized by public or private
schools. [Penal Code Section 417.2(b)]
4)Provides that imitation firearm does not include any of the
following:
a) A non-firing collector's replica of a firearm designed
prior to 1898, is historically significant, and is offered
for sale in conjunction with a wall plaque or presentation
case;
b) A non-firing collector's replica of a firearm designed
after 1898, is historically significant, was issued as a
commemorative by a nonprofit organization, and is offered
for sale in conjunction with a wall plaque or presentation
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case;
c) A BB device as defined in of Penal Code Section 12001(g)
(an instrument that expels a metallic projectile, such as a
BB or pellet, not exceeding 6mm caliber, through the force
of air pressure, carbon dioxide pressure, or spring action,
or any spot marker gun);
d) An imitation firearm where the coloration of the entire
exterior surface of the device is bright orange or bright
green, either singly or in combination; or,
e) An instrument that expels a projectile, such as a BB or
pellet, through the force of air pressure, gas pressure, or
spring action, or a spot marker gun. [Penal Code Section
417.2(d)]
5)Provides that every person who, except in self-defense, draws
or exhibits an imitation firearm in a threatening manner
against another person 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 Section 417.4.)
6)Defines "BB device" for the purpose of Penal Code Sections
12551 and 12552 as an instrument that expels a projectile,
such as a BB or pellet, not exceeding 6mm caliber, through the
force of air pressure, gas pressure, or spring action, or any
spot marker gun. [Penal Code Section 12001(g).]
7)Provides that any person who sells to a minor any BB device is
guilty of a misdemeanor. (Penal Code Section 12551.)
8)Provides that any person who furnishes any BB device to a
minor, without the express or implied permission of the parent
or legal guardian of the minor, is guilty of a misdemeanor.
[Penal Code Section 12552(a).]
9)Provides 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
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the city attorney of the city or the district attorney for the
county of not more than $10,000. [Penal Code Section
12020.3.]
10)Grants the Legislature exclusive authority to regulate the
manufacture, sale, or possession of imitation firearms, as
specified. (Government Code Section 53071.5.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Air guns and BB
guns are being produced by some manufacturers to look so
realistic that trained law enforcement personnel can not
differentiate them from a real firearm. This realism is
desired by the consumer and is eagerly met by manufacturers -
with grave consequences.
"Police officers throughout California are increasingly being
placed in situations where they must determine whether a
juvenile suspect is a threat to their lives or simply a child
playing 'cops and robbers.' Unfortunately, we now live in a
world where the tragedies of Columbine High School in
Littleton, Colorado, and Santana High School in Santee,
California, cause us to reevaluate what we used to dismiss as
childhood pastimes.
"Today, when children play 'cops and robbers' or 'war games' in
places like parks, parking lots and in front of their homes,
they play with imitation firearms that look exactly like real
guns. When people see others with these devices, they are apt
to think there is a threat serious enough to call the police.
Once an officer arrives on scene and sees these real looking
'toys', he or she must proceed with caution. The following
examples illustrate the seriousness of this issue:
a) Lakewood : A sheriff's deputy shot and wounded a
14-year-old boy when he pulled an imitation of a
semi-automatic pistol from his waistband.
b) Bishop : Two high school students brought imitation
firearms to school that looked exactly like Beretta
pistols. The two individuals were shooting at one another
and at other students. Officers responded and a shooting
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incident nearly occurred between the students and officers.
c) Ashburn : Police responded to a Target parking lot where
four juveniles were playing with what the caller thought
was a firearm. Another incident required officers to
apprehend at gunpoint three young adults at a Del Taco for
carrying what appeared to be real pistols.
"This bill requires all imitation firearms manufactured after
July 1, 2005 and offered for sale in California to be
accompanied with a conspicuous advisory notifying the consumer
that the product may be mistaken for a firearm by law
enforcement officers or others; that brandishing or displaying
the product in public may cause confusion and may be a crime;
and that any attempt to alter the product so it looks more
realistic is dangerous and may also be a crime.
"This bill makes it against the law to openly display or
expose any imitation firearm in a public place and imposes a
fine of $100 for the first offense, $300 for the second
offense, and a third or subsequent offense is punishable as a
misdemeanor. We have worked with numerous advocacy groups to
define 'public place' to achieve the goals of this bill while
reducing the burdens of individuals and industry. We have
also put in place numerous exemptions so a multitude of
activities can still be enjoyed, without fear of breaking the
law.
"This bill will not solve this problem overnight, but it is a
first step in attempting to address this serious problem by
educating the public about the seriousness of the perceived
lethality of imitation firearms."
2)Need for the Bill : According to the Office of the Attorney
General, a co-sponsor, this bill is needed because many air
guns and BB guns are designed to resemble real firearms and
"citizens from across California are being led to believe that
children playing with air guns and BB devices are possessing
real firearms. This has resulted in numerous calls to law
enforcement agencies; peace officers pulling their duty
weapons on kids who they believe are carrying a real firearm;
and, tragically, a shooting in Lakewood."
3)Revised Definition of "Imitation Firearm" : Existing law
defines an "imitation firearm" as a replica of a firearm so
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substantially similar in physical properties to a real firearm
so as to lead a reasonable person to conclude that the replica
is a firearm. The definition established in this bill would
also define an "imitation firearm" based on substantial
similarity to a firearm, but would substitute "coloration and
overall appearance" for "physical properties." What
constitutes an imitation firearm hinges on what a reasonable
person concludes about a replica being a firearm while this
bill relies on whether a reasonable person perceives the
device to be a firearm. Although this bill specifically adds
BB devices, toy guns, and "other devices" that meet the
reasonable-person test to the definition of an "imitation
firearm", it is unclear whether the specific inclusion of
these additional devices expands the definition. Because
existing law defines an "imitation firearm" based on
substantial physical properties and a reasonable person's
conclusion, it is possible that these specified devices may
already constitute imitation firearms if the test is met.
However, to the extent that this bill would include additional
devices, the existing misdemeanor brandishing statute would
correspondingly be expanded.
4)Notice to Current and Prospective Owners of Imitation
Firearms : It is unclear how persons who currently own
imitation firearms would be notified of the new prohibition of
displaying or exposing these devices. Additionally, to the
extent that this bill would expand the current definition of
"imitation firearm", it is unclear how owners of BB devices,
toy guns, or other devices substantially similar in coloration
and appearance to an existing firearm would be notified of the
new classification and prohibition. While this bill would
require an advisory to accompany the sale of any imitation
firearm manufactured after July 1, 2005, the advisory is only
a general statement that includes broad advisories that
certain conduct may be a crime when under this framework
proposed by this bill that conduct definitively is criminal.
Should the warning specifically state that altering required
coloration or markings and openly displaying are crimes in
California? Should this advisory also be provided with the
sale of those devices that meet marking or coloration
requirements but are not imitation firearms due to the marking
or coloration so that those purchasers are aware of the crime
should they choose to change the markings or coloration?
5)Public Place Prohibition : This bill broadly defines "public
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place" to include virtually all public areas and some private
property locations. The definition adopts a modified version
of the "public place" definition in Health and Safety Code
Section 11530(b), the statute addressing loitering for drug
activities. The effect would likely accomplish the sponsor's
intent to generally prohibit the displaying or exposing of an
imitation firearm in public areas where there may be potential
confusion faced by peace officers. While the underlying goal
may be accomplished, the definition and exceptions may need
clarification.
The language in this bill does not specifically recognize
existing statutory public place prohibitions for some of these
devices. Existing law in Penal Code Sections 171b, 171.5, and
626.10 include specific prohibitions on possessing BB devices
in public buildings, airports, and on school grounds. The
author may wish to consider clarifying that the terms of this
bill are not intended to supercede those prohibitions and the
associated higher penalties.
This bill provides several exemptions from the public place
prohibition, many which appear derived from the stream of
commerce exemption in existing Penal Code Section 417.2(b) and
some which appear repetitive or in need of clarification.
There are two exemptions related to film and video productions
[Penal Code Section 12556(d)(2) and (3)] and two provisions
exempting governmentally permitted activities [Penal Code
Section 12556(d)(7) and (10)]. In both instances, it would
appear that consolidation of the repetitive provisions is
possible, and the latter also includes what may be a misplaced
reference to museum collections. Finally, will the author's
proposed amendment to exempt areas where a firearm may be
lawfully discharged negate the need for some of the exemptions
currently in this bill?
6)Appropriate Penalty for Public Place Violations ? The goal of
the prohibition is simply to reduce the incidents where law
enforcement officers are confronted with realistic looking
devices. According to the sponsor, a number of the incidents
prompting this bill have involved minors and mistakes in
determining whether a device was an actual firearm. In light
of the goal to avoid confusion, is the penalty appropriate for
the offense or should there be greater flexibility, such as
providing that the fine shall not exceed the specified
amounts?
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7)Changes to Statute Regulating the Purchase, Sale, Manufacture,
Transport, or Receipt of an Imitation Firearm : This bill
would retain the framework of existing law while making two
changes to the limited circumstances when an imitation firearm
may be in the stream of commerce. This bill would add that an
imitation firearm may be purchased, sold, manufactured,
transported or received for use in a "ceremonial activities"
and replace the current limitation related to certified or
regulated "athletic events" with "sporting events." This bill
does not define what constitutes a "ceremonial activity" and
it is unclear whether the term "sporting" is more inclusive
than the existing term "athletic". Penal Code Section
12556(d)(4) adopts the same sporting event language while
Penal Code Section 12556(d)(10) limits ceremonial activities
to those permitted by a state or local government. The author
or sponsor may wish to address the intent of these changes.
8)Altering Coloration or Markings : As noted above, this bill
would create a misdemeanor for a person to alter or remove any
required coloration or markings on an imitation firearm or
another device, as specified, to make it look more like a
firearm. This bill would also create a misdemeanor for any
manufacturer, importer, or distributor of imitation firearms
who fails to comply with federal marking requirements. The
former provision includes any required coloration or marking
under both state or federal law or regulation while the latter
would create only an offense related to failure to comply with
federal law or regulation. Because this bill would adopt the
federal coloration scheme as well as define imitation firearm,
should the latter provision also apply to violations of state
law or regulation?
9)Coloration Changes : The bill would also expand the colors
under which a device may be entirely, or in pattern, colored
such that it would not constitute an imitation firearm,
adopting the federally approved colors found in 11 C.F.R.
1150.3. The expanded coloration is repeated in the exemptions
to public display as well. In recent years, the Legislature
has frequently changed the coloration requirement for such
devices. From 1993-2001, Penal Code Section 417.2 exempt from
the imitation firearm definition "a firearm that contains, or
has affixed to it, a marking approved by the Secretary of
Commerce, as provided in Section 5001 of Title 15 of the
United States Code." The federal statute and corresponding
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regulation (15 C.F.R. 1150.3.) provides that "toys,
look-alike, and imitation firearms" must have a blaze orange
plug inserted in the barrel; blaze orange markings covering at
least 6mm of the barrel from the tip; be constructed of
transparent or translucent material; or 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.<1> AB 2053
(Wesson), Chapter 275, Statutes of 2000, replaced the
cross-reference to federal law with the much narrower current
exemption for "an imitation firearm where the coloration of
the entire exterior surface of the device is bright orange or
bright green, either singly or in combination." The effect of
the change in 2000 was to delete the remaining authorized
imitation firearm markings or construction, including the
additional colors added back by this bill. As a result of the
frequent changes in the law, it is conceivable that numerous
imitation firearms that preceded the change in 2000 may still
be in use. Additionally, should this bill pass, less than
four years will have elapsed since California limited the
colors to orange and green. The effort in 2000 to limit the
available colors for such a device to increase recognition
would be changed by this bill.
10)Cross-Reference Changes in Penal Code Section 12021 : This
bill would delete two cross-references to Penal Code
violations from the list of offenses that result in a 10-year
prohibition from owning or possessing a firearm under Penal
Code Section 12021. This bill would delete reference to Penal
Code Section 417.1, a provision repealed in 1998. It would
appear that the conduct previously prohibited in this section
was included in the expansion of prohibited conduct under
Penal Code Section 417 and, therefore, would still be subject
to the 10-year prohibition. This bill would also strike the
reference to Penal Code Section 417.2. Prior to 1994, Penal
---------------------------
<1>Federal law provides defines a look-alike firearm as "an
imitation of any original firearm which was manufactured,
designed, and produced since 1898, including and limited to toy
guns, water guns, replica nonguns, and air-soft guns firing
nonmetallic projectiles. Such term does not include any
look-alike, nonfiring, collector replica of an antique firearm
developed prior to 1898, or traditional B-B, paint-ball, or
pellet-firing air guns that expel a projectile through the force
of air pressure." [15 U.S.C. 5001(c).]
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Code Section 417.2 prohibited brandishing a replica of a
firearm - conduct that appears prohibited by Penal Code
Section 417.4. Should a person who brandishes an imitation
firearm be subject to the 10-year firearm prohibition?
11)Technical Amendments Needed : The current version of the bill
appears to include two typographical errors. On Page 11, Line
22, this bill refers to "state productions." This reference
should be to "stage productions." On Page 13, Line 15, this
bill refers to "film or vide production." Should this
reference remain it this bill, it should refer to "film or
video production."
12)Related Legislation : AB 1864 (Negrete-McLeod) would redefine
(differently from this bill) what constitutes a BB device for
purposes of existing statutes. AB 1864 is pending hearing by
the Senate Appropriations Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State, County and Municipal Employees
Association for Los Angeles Deputy Sheriffs
California Fraternal Order of Police
Long Beach Police Officers Association
Los Angeles County Probation Officers Union, AFSCME, Local 685
Los Angeles County Professional Peace Officers Association
Office of the Attorney General
Orange County Chiefs of Police and Sheriff's Association
Peace Officers Research Association of California
Riverside Sheriffs' Association
San Bernardino County Office of the Sheriff
San Diego County Sheriff
Santa Ana Police Officers Association
Opposition
California Sportsman's Lobby
National Air-Powered Shooting Sports Association
National AirSoft Sporting Industry Association
Outdoor Sportsmen's Coalition of California
Analysis Prepared by : Harry Ermoian / PUB. S. / (916)
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