BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  SB 798
                                                                  Page  1

          Date of Hearing:   June 21, 2011
          Counsel:               Milena Nelson


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                    SB 798 (De Leon) - As Amended:  June 13, 2011


           SUMMARY  :   Removes BB devices, except those which expel a 
          projectile greater than 10 millimeters, from the list of devices 
          not intended to be an imitation firearm for purposes of imposing 
          civil fines for the sale, manufacture, transportation, receipt, 
          or distribution of imitation firearms for commercial purposes.  

           EXISTING LAW  :

          1)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 
               materials which permits unmistakable observation of the 
               device's complete contents, as provided by federal 
               regulations governing imitation firearms.  (Penal Code 
               Section 16700.) 

          2)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 








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            by the city attorney or the district attorney of not more than 
            $10,000 for each violation.  ÝPenal Code Section 12555(a).]

          3)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).]

          4)Defines "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).]

          5)States that the sale of a BB device to a minor is a 
            misdemeanor.  (Penal Code Section 12551.)

          6)States that furnishing a BB device to a minor, including 
            loaning or transfer without a sale, is a misdemeanor.  (Penal 
            Code Section 12552.)

          7)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 








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            county of not more than $10,000.  (Penal Code Section 
            12020.3.)

          8)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).]

          9)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 fake firearms 
            such as BB guns.  The accidental shooting of residents, 
            especially minors and young adults, by law enforcement 
            officers and others is a public safety problem.  This problem 
            must be addressed as these fake guns are often 
            indistinguishable from real guns and the Legislature must act 
            swiftly in order to protect the lives of the public and the 
            brave men and women of law enforcement.

           2)Injuries from BB Devices  :  A 2004 article published in 
            Pediatrics, the official journal of the American Academy of 
            Pediatrics, reviewed the potential dangers from nonpowder 
            guns, including BB guns, pellet guns, air rifles, and 
            paintball guns.  The author found that in 2000, there were an 








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            estimated 21840 injuries related to nonpowder guns, with 
            approximately 4% resulting in hospitalization.  ÝLaraque, 
            Injury Risk of Nonpowder Guns, Pediatrics, (November 1, 2004), 
            available at .]  Over one-half of these injuries occurred in 
            children under the age of 14, with approximately 12% of 
            injuries to the eye; 24% to the head and neck, excluding the 
            eye; 63% to extremities; and 1% to other body areas.  (Id.)  

          The article notes that the small size of the pellets shot from 
            nonpowders guns can contribute to the severity of the injury.  
            The small size of the wound may lead to parents or emergency 
            room personnel to overlook the injury, but "but if not 
            appreciated for their potential for tissue disruption, 
            nonpowder gun injuries to the head, chest, and abdomen may 
            have catastrophic results."  (Id.)  The authors also note that 
            "pellets from air guns have a propensity to embolize if the 
            missile enters a blood vessel or the heart. The light weight 
            of air gun pellets allows the missile to be swept by the blood 
            flow more readily than heavier, higher-energy projectiles."  
            (Id.)   The article also notes that injuries from paintball 
            guns are primarily limited to eye injuries.  (Id.)

           3)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 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)], the requirements in this bill that BB devices be 
            entirely bright colored or translucent, as specified, are in 
            conflict and would be preempted by federal law.  

            Additionally, the provision in this bill that prohibits the 








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            commercial sale of any non-conforming BB device is also in 
            conflict with federal law.  The relevant provisions state, "no 
            State shall . . . 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 USC 5001(g)(ii).]  Because there 
            is no provision in this bill that would exempt currently owned 
            non-conforming BB devices, this bill prevents the re-sale of 
            these devices, in violation of federal law.  

           4)Argument in Support  :  According to the  Mayor, City of Los 
            Angeles  , "Under current law Ýimitation handguns], while oft 
            considered 'toys,' end up in the hands of juveniles.  Since 
            law enforcement officers come in contact with these devices in 
            the hands of individuals/juveniles, it is a responsible action 
            to increase the ability to discern a replica gun from a real 
            gun.  The current marking requirements of these devices 
            continue to place law enforcement officers in a potential 
            officer involved shooting situation.  Therefore, as a security 
            precaution, it is incumbent to support SB 798."

           5)Argument in Opposition  :

             a)   According to the  National Rifle Association  , 
               "Traditional air guns that fire metallic projectiles are 
               exempt from federal marking requirements. In contrast to 
               the imitation firearms Congress chose to regulate, 
               traditional air guns fire metallic projectiles at higher 
               velocities and have a far greater potential for injury is 
               mishandled.  In creating the exemption, Congress recognized 
               that traditional air guns are not toys, that they must be 
               handled with additional care, and that marking them to 
               appear as toys would actually increase the risk of injury 
               associated with air gun misuse.  If SB 798 became law, a 
               child seeing a brightly-colored or translucent air gun 
               might well mistake it for a harmless toy, treats it as 
               such, and suffer injury as a result."

             b)   According to  Velocity Paintball  , "This proposed 
               legislation would lead to a dramatic decline in paintball 
               participation in California.  Paintball consumers are 
               looking for the 'video game experience,' which requires 
               that the markers be darker and more mil-sim 
               Ýmilitary-simulation] in appearance.   Removing this aspect 
               from our products would effectively kill our industry, as 








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               forcing consumers to use unattractive markers would cause 
               them to lose interest in continuing with the sport.

             "On an employment level, there are 10 jobs at stake within my 
               company alone if SB 798 is approved in the Assembly and 
               approved by Governor Brown.  We employ a wide variety of 
               local community residents at our facilities.  It will be 
               impossible to avoid layoffs of the majority of my staff is 
               the new restrictions in AB 798 are implemented as written.  


             "In addition, industry-wide paintball sales and participation 
               at fields generated significant taxable income to state and 
               local governments.  With more than 500,000 participants 
               annually in California, sales tax receipts alone are as 
               high at $3-$5 million annually for paintball related 
               businesses, not to mention corporate and personal income 
               taxes generated through the operation of these businesses.  
               Finally, the industry as two large paintball marker 
               companies headquartered in California."

           6)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








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            Opposition 
           
          Airgun Information International
          California Association of Firearms Retailers
          California Outdoor Heritage Alliance 
          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