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
SB 798
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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