Editor's Note: Rangemaster Larry, the co-host of Dr. Airsoft at Airsoft Medicine gives us a backgrounder on SB 798 and what transpired during the hearing on the bill by the Committe on Public Safety which happened last 21 June 2011. This is a must read for everyone, even if not from California, to give you an understanding on the issues being discussed here as it will bear similarities to efforts to ban airsoft in other countries. Furthermore, it also give you an insight how State and Federal Laws work in the US as the bill is said to be in conflict with the "Preemption Clause" of the United States Code, which supercedes it.

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Sometimes, elected officials propose laws intended to cure a particular problem with little regard to the side effects of that cure.  Such is the case with California Senate Bill 798, the brain-child of Senator Kevin de Leon (D – Los Angeles).

Senator de Leon’s bill would ostensibly make it easier for law enforcement officers in California to distinguish replica guns from the real thing by “imposing a civil fine on the sale, manufacture, transportation, receipt, or distribution of imitation firearms for commercial purposes” unless the entire exterior of the replica gun is brightly colored or the entire body is clear.

As the basis for his bill, Senator de Leon cites a 2010 incident in which Los Angeles police shot a youth who had an airsoft gun, mistaking the replica for an actual firearm.  The senator provided no further facts for consideration at the hearing, but the Los Angles Times’ article on the matter provides some important context:

• The incident took place on Thursday, December 16, 2010 at 7:50 pm in the Glassell Park neighborhood of Los Angeles when police saw three people standing in the 3000 block of North Verdugo Road and stopped to investigate.
• All three ran as the police stopped their patrol car.
• The 13 year old who was shot was 5’7” tall and weighed 200 lbs.
• According to an LAPD news release on the incident, "the subject refused to comply with the officers' commands and instead produced what was later determined to be a replica Beretta 92F handgun."  The news release did not say whether the teen pointed the pellet gun at the officer. But Lt. John Romero, a police spokesman, said the youth pulled the gun from his clothing in a motion consistent with drawing a weapon.

Senator de Leon’s omission of these details is telling, particularly since this, and similar incidents, form the basis for the argument in favor of SB 798.

A bit of background is in order.  After its introduction, SB 798 gained approval by the Senate Public Safety Committee, then that of the entire Senate.  From there it passed into the hands of the Assembly Public Safety Committee for consideration at a June 21, 2011 hearing.  Interestingly, this proposed legislation had been amended only one week earlier, on June 13, to exclude any “spot marker gun that expels a projectile of greater than 10mm,” thus effectively excluding paintball guns.

Passage of SB 798 would devastate the sport of airsoft, a fact not wasted on the dozens of airsoft players and industry representatives who descended on the state capitol building in Sacramento on June 21 to voice their opposition to the bill.

Shortly after 9 o’clock, the hearing room was packed with citizens wearing “No on SB 798” t-shirts.  Dozens more overflowed into the hallway outside.  The committee’s chair, Assemblyman Tom Ammiano (D-San Francisco) admonished the crowd by announcing that the public would not be allowed to use any recording devices or cameras in the room, even as a television news crew began setting up its camera and sound equipment in the background.

Senator de Leon opened his presentation to the seven-member Assembly committee by saying his bill “protects law enforcement officers,” but did not explain exactly how that could be accomplished by requiring airsoft guns to be brightly colored.  He then introduced Los Angeles Police Department Chief Charlie Beck who told the committee that in 2010 his department was involved in 39 uses of deadly force, two of which featured suspects with replica guns.  One suspect died, another was paralyzed.  To date in 2011, he testified, there had been 25 uses of deadly force with two of these involving suspects with replica guns.  Chief Beck’s testimony did not include any details or provide further context regarding these incidents, nor did anyone ask whether a total of four incidents in 18 months was an unusual number for a metropolitan area the size of Los Angeles.

Following Chief Beck’s remarks, the committee allowed comments from individuals and organizations in support of SB 798.  These included Tippmann Sports, KEE Action Sports, and the California Paintball Safety Coalition (comprised of KEE Action Sports, Tippmann, DYE, Kingman, Giant Paintball/Hollywood Sports, and lobbying firm Mercury Public Affairs).

Notably, this same group had been opposed to the passage of SB 798 before it was amended to exempt paintball markers.  A neutral stance by the paintball industry might be tolerable, but switching from opposing the bill to favoring it might lead one to suspect that the airsoft industry’s loss would be the paintball industry’s gain.

Speakers in opposition to the bill’s passage included the California Police Chiefs’ Association, the National Rifle Association, and Spartan Imports.

Several opposition speakers cited the so-called “preemption clause” in Section 5001 of Title 15 of the United States Code, which requires orange tips on replica guns, but further prohibits individual states from making laws inconsistent with the federal law governing such markings on replica guns.  Specifically, the relevant portion of 15 USC 5001 states:

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 provided that no State shall—

(i) prohibit the sale or manufacture of any look-alike, nonfiring, collector replica of an antique firearm developed prior to 1898, or 
(ii) 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.

Those opposing the bill further argued that bright coloration of BB guns will leave parents and children with the false impression that these guns are toys rather than sporting equipment to be used by responsible adults in controlled settings.  They also cited the loss of jobs and subsequent tax revenue to the state of California should the bill succeed in passage, and further argued that criminals might easily disguise real guns in bright colors to cause law enforcement officers to delay their response to a criminal threat.

After hearing oral testimony, the committee opened the session for individuals to express their opposition to the proposed bill.  Under the committee’s rules, individuals were allowed to step to the microphone, say their names and city of residence, and state simply that they were opposed.  Speeches and testimony were not permitted.

Even given the brevity imposed by the committee’s standard rules, this opposition process took several minutes.  Over 130 individuals came to the microphone, most wearing the “No on SB798” t-shirts with their postal codes plainly written in magic marker.

When all voices in attendance had registered their opposition for the record, the individual committee members began their questioning. Assemblyman Curt Hagman (R – Chino Hills) asked why paintball was excluded from the bill.  Chief Beck responded that it was because airsoft guns are exact replicas of their real-steel counterparts, but paintball guns are not.

Clearly, Chief Beck is unfamiliar with the current state of paintball guns.  Premierpaintballguns.com’s website, for example, describes the RAP17 EX as being “designed to replicate the look, feel, and functionality of a real modern handgun,” under a caption describing it as the “Glock 17 EX Pistol.”

Assemblyman Hagman posed another question to the Chief:  “The representative of the California Police Chiefs’ Association spoke against this bill.  Is this only an LAPD concern?  Why couldn’t Los Angeles make its own local ordinance instead of this body making a statewide law?”

In response, Senator de Leon stepped in for the Chief, reciting a “parade of horribles” in which individuals with replica guns were shot by law enforcement officers in various cities across California.  Again, the senator failed to provide any context to these incidents such as the suspects’ ages, or their behaviors prior to being shot by police.  Such details are often omitted when they conflict with the speaker’s arguments.  While this might not be the case with Senator de Leon’s paucity of detail, some research of police shooting suspects armed with airsoft guns in the cities mentioned by the senator reveals suspect behavior, not “gun color” as a determining factor in such incidents.  For example, in Redding, California in December 2009 a 20 year old was killed by police after he robbed a bank and then threatened police with his BB gun.

While this may not be one of the incidents to which Senator de Leon alluded, it may well be more representative of “police vs. airsoft” incidents in the world – incidents in which the reckless, even malicious, behavior of the individual is the driving force.

Assembly member Gil Cedillo, a Democrat whose district includes Glassell Park, asked, “Does the exterior color eliminate the utility of a bb gun?”

Ignoring the fact that realism and aesthetics are critical elements in the sport of airsoft, Senator de Leon answered that the exterior color of a gun “does not affect its functionality.”

Cedillo continued his line of questioning:  “So, [this bill] won’t eliminate manufacturing, sales, or jobs?”

Senator de Leon responded, without truly answering the question, “Correct. BB guns are not firearms and should be distinguishable as such.”

Assembly member Holly Mitchell (D – Culver City) said, “My office has received many calls, several from out of state, on this bill.  I’ve heard the federal pre-emption argument; I’ve heard the economic argument, mostly from people with a stake in the industry; and I’ve heard the safety argument.  One voice not heard today was that of the mother of the 13 year old shot by the LAPD.  What would she say? This is an unfinished dialogue, and I am waiting to hear more about the argument balancing the hobby benefits against public safety concerns.”  Ironically, after saying she wanted to hear more, she left the room and was absent for the initial vote on the matter.

Assembly member Steve Knight (R – Antelope Valley) noted, “The biggest issue I see is the preemption argument, and I don’t know how we can get around it.  Federal law says we cannot do this, yet we’re forcing this through.  This law would be unlawful.”

After all testimony had been heard, Chairman Ammiano addressed Senator de Leon.  “I am proud of you and your efforts, Senator, but I have great concerns about the federal preemption issue and therefore can’t support the bill at this time and will be voting ‘no’.”

The first roll-call vote yielded three “no” votes, and two “yes” votes.  Two of the members had left the room prior to the vote, likely from the strong public showing in opposition to the bill.

With an insufficient number of votes cast, the bill remained “on call” and was brought up again later in the day with all seven members voting; five against it (Ammiano, Knight, Hagman, Hill and Skinner) and two (Cedillo and Mitchell) for it.

Normally, that would kill the bill, but the committee voted 7-0 to reconsider it at a later date.  In a press release on June 21, Senator Kevin de Leon said:

“The bill is being held in committee while I work to secure the necessary votes to move it to the Assembly Floor. The safety of our law enforcement officers and the public depends on this advancing. This does not inhibit recreational BB gun enthusiasts. It will keep copycat handguns and military style assault weapons off our streets. It is a small price to pay if we spare even one life lost needlessly.”

No, the Munchkins should not be singing “Ding, Dong” yet.  This bill is not dead. It has merely returned to the re-spawn area.

While Senator de Leon “works to secure the necessary votes,” those opposed to this legislation must work to convince the Assembly Public Safety Committee members that they should not move the bill to the Assembly floor.

Members of the California Assembly Public Safety Committee:

Tom Ammiano - Chair
(916) 319-2013
[email protected]

Steve Knight - Vice Chair
(916) 319-2036
[email protected]

Gilbert Cedillo
(916) 319-2045
[email protected]

Curt Hagman
(916) 319-2060 
[email protected]

Jerry Hill
(916) 319-2019
[email protected]

Holly J. Mitchell
(916) 319-2047
[email protected]

Nancy Skinner
(916) 319-2014
[email protected]