BILL ANALYSIS
SENATE RULES COMMITTEE
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THIRD READING
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Bill No: AB 830
Author: Speier (D)
Amended: 7/3/95 in Senate
Vote: 27
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SENATE CRIMINAL PROCEDURE COMMITTEE: 5-0, 6/20/95
AYES: Johnson, Kopp, Watson, Boatwright, Marks
NOT VOTING: Campbell, Polanco
SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8
ASSEMBLY FLOOR: 70-2, 5/11/95 - See last page for vote
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SUBJECT: Tear gas
SOURCE: Author and Attorney General
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DIGEST: This bill deregulates the sale, purchase,
possession, transportation, and use of tear gas, including
pepper spray and tear gas weapons.
This bill repeals the requirement that the Department of
Justice certify as acceptable any type and brand of tear
gas or tear gas weapon to be sold, purchased, transported
or used in the state.
ANALYSIS: Existing law defines "injurious object" in
connection with pupil safety as objects specified in
certain provisions of law that include weapons such as
knives, guns, and explosive substances.
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This bill would include in this definition "tear gas" and
"tear gas weapon."
Existing law prohibits the possession of certain weapons,
including any tear gas or tear gas weapon, within any state
or local public building or at any meeting required by
state law to be open to the public.
This bill instead would make this prohibition applicable to
any unauthorized tear gas weapon.
Existing law regulates the purchase, possession,
transportation, and use of any tear gas or tear gas weapon
and makes its provisions applicable to, among others,
specified peace officers, licensed private investigators,
private patrol operators, employees of specified state
agencies, and minors.
This bill would revise and recast these provisions by
repealing certain licensing requirements administered by
the Department of Justice and other requirements covering
oleoresin capsicum certification and the purchase,
possession, or use of tear gas or tear gas weapons in which
this active ingredient is used. The department would be
authorized to issue a permit for the possession and
transportation of tear gas or tear gas weapons that are not
intended or certified for personal self-defense purposes,
upon proof that good cause exists for the issuance of this
permit.
This bill would require that every tear gas container and
tear gas weapon that may be lawfully purchased be
accompanied at the time of purchase by printed instructions
for use.
This bill would also repeal the provision that no tear gas
or tear gas weapon shall be possessed, sold, or transported
in this state unless the Department of Justice has
certified that particular type and brand of tear gas weapon
to be acceptable. The bill would make other related,
technical and conforming changes.
Specifically, this bill:
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1. Revises and recasts the laws relating to purchase,
possession, transportation, and use of any tear gas or
tear gas weapon, by generally repealing the DOJ licensing
requirements.
2. Deletes other requirements covering OC certification
and the regulations applicable to tear gas and tear gas
weapons that utilize OC as an active ingredient. Allows
for over-the-counter sale of tear gas weapons by
non-prohibited persons, with no training requirements.
3. Deletes the requirement of the DOJ to certify as
acceptable, particular types and brands of tear gas
weapons to be acceptable, as specified. Because the DOJ
will no longer be required to certify such items, the
requirement that law enforcement use only certified tear
gas weapons has been deleted as well.
4. Amends the existing provision providing that no tear
gas or tear gas weapon shall be possessed within any
state or local building or at any meeting required by
state law to be open to the public unless a person has a
tear gas card. Since tear gas will be unregulated, only
those prohibited from having tear gas weapons (felons,
etc.) will be prohibited from having such weapons in
those places.
5. Deletes the DOJ form and the affidavit under penalty of
perjury by a minor who has attained the age of 16; leaves
in requirement of parent or guardian to either accompany
minor or provide written consent to purchase.
6. Retains the prohibitions against purchase, possession,
or use of tear gas or tear gas weapons, by persons
convicted of assault or misuse of tear gas, felons, drug
addicts, and minors except as specified. Retains the
prohibition against any tear gas weapon that expels a
projectile, or by any method other than an aerosol spray.
The purpose of this bill is to generally deregulate the
importation, sale, purchase, and possession of tear gas
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weapons in California for private citizens.
FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes
Local: No
SUPPORT: (Verified 7/14/96)
Attorney General (co-source)
Doris Tate Crime Victims Bureau
Chief of Police
City of El Monte
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OPPOSITION: (Verified 7/14/95)
Peace Officers Research Association
ACLU
Security Source International, Inc.
ARGUMENTS IN SUPPORT: According to the author:
Existing law impedes the sale and purchase of pepper spray
by civilians since it limits the products that can be sold
and requires civilians to watch a 30 minute video before
they can be certified to buy pepper spray. If pepper spray
is deregulated, law-abiding citizens will have greater
access to a self-defense device that has been proven to be
safe, non-lethal, and highly effective against aggressors.
Based on pepper spray's proven record over the last year in
the hands of civilians, this legislation is designed to
eliminate the red-tape requirements for buying pepper
spray. Everyone knows how to use an aerosol can. They are
used every day, from hair spray to bug spray. People know
how to spray a can. And that's exactly what pepper spray
is. You just aim it, spray it, and run the other way.
The purpose of this bill is to deregulate all civilian tear
gas products, including pepper spray, which will make it
more affordable and easier for the public to buy. This
bill calls for the removal of all required training and
certification requirements to purchase and possess pepper
spray.
This bill will also ease the manufacturing and product
restriction on pepper spray. Currently any manufacturer
who wants to legally sell pepper spray in California must
receive state approval from the DOJ. Under this proposed
legislation, manufacturers must follow state business codes
but will not need to have their product's design or
contents otherwise approved by the state.
The Department of Justice indicates that:
California is one of only four states which continue to
regulate the purchase of self-defense tear gas weapons.
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The DOJ began licensing tear gas trainers and issuing
permits in 1976. Since then, DOJ has certified some
700,000 persons to carry and use CS and CN tear gas
weapons. Since March, 1994, it has certified nearly
126,266 additional persons to use tear gas weapons
containing oleoresin capsicum (OC - pepper spray). DOJ
began certifying law enforcement use of CS and CN tear gas
in 1971. It has been certifying OC for law enforcement
since April, 1992.
ARGUMENTS IN OPPOSITION: The ACLU opposes this bill.
The ACLU has just released a third report entitled "Pepper
Spray Update"; the first two reports were issued in
September, 1993, and March, 1994. The third report focuses
primarily on questions and fatalities involving the use of
pepper spray by peace officers and the deaths of persons
arrested or subdued.
The June, 1995, report concludes that pepper spray either
does not work on some individuals (resulting in overuse by
those trying to subdue those persons) or that it has undue
risks for some persons with respiratory disease; that some
restraints combined with pepper spray are especially
dangerous to those being subdued; that Cal-EPA has warned
DOJ of dangers; and that no federal or state agency has
taken regulatory responsibility for the use of pepper
spray.
The reports recommendations include that DOJ and Cal-EPA
work to develop warning labels for both police and civilian
use of pepper spray; that the Legislature defeat AB 830;
and that the U.S. Consumer Product Safety Commission should
take responsibility for pepper spray, for both use by
civilians and peace officers.
The ACLU has written in opposition to this bill that:
By eliminating the requirement that police agencies use
only state-approved OC products, this bill opens the
market up for manufacturers beyond the two currently
licensed to try to make inroads in the police markets.
By eliminating the training, registration and sales record
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requirements for civilian OC, the bill creates an even
worse potential for civilians to be given absolutely no
information on the limitations and potential pitfalls of OC
sprays, making it even more possible that civilian users
will have outlandishly unrealistic expectations for the
protection they can expect from OC. (For example, some
potential victims may stand their ground if they have OC
rather than run or yell for help when in fact OC may not
prove effective against all attackers.)
A disinterested regulatory agency must have the oversight
on the area of advertising, label and brochure claims for
OC.
ASSEMBLY FLOOR:
AYES: Aguiar, Alby, Allen, Alpert, Archie-Hudson, Baca,
Baldwin, Bates, Battin, Bordonaro, Bowen, Bowler, Brewer,
V. Brown, Brulte, Burton, Bustamante, Caldera, Campbell,
Cannella, Conroy, Cortese, Cunneen, Davis, Figueroa,
Firestone, Friedman, Frusetta, Gallegos, Goldsmith,
Granlund, Hannigan, Harvey, Hauser, Hawkins, Hoge,
Horcher, House, Isenberg, Kaloogian, Katz, Knight,
Knowles, Kuehl, Kuykendall, Lee, Machado, Martinez,
Mazzoni, McDonald, McPherson, Morrissey, Morrow, K.
Murray, W. Murray, Napolitano, Poochigian, Pringle,
Rainey, Richter, Rogan, Setencich, Sher, Speier, Sweeney,
Thompson, Vasconcellos, Weggeland, W. Brown
NOES: Boland, Tucker
NOT VOTING: Ducheny, Escutia, Knox, Olberg, Takasugi,
Villaraigosa, Woods
RJG:jk 7/15/95 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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