Thursday, March 3, 2016

Imitation Firearms, School Discipline And Changes To Penal Code 16700

By Michelle Ball, California Education Attorney for Students since 1995

On January 1, 2016, Penal Code section 16700, regarding "imitation firearms," changed and will potentially help students facing discipline for possession of "imitation firearms." 

Air soft guns, BB guns and other similar devices have proven irresistible items for some students. What fun to get one of these "play" guns and go shoot some targets, right?  Unfortunately, these students have ended up in the school office and usually in front of expulsion panels when possessing these devices on campus or within the zone of a school's area of control (to/from school, field trips, near school, etc.).  

Schools look toward many legal codes to get their guidance.  Often, definitions in the Education Code are vague and other codes may need to be looked to for clarification.  The California Penal Code (lists the criminal statutes applicable in California) is a frequently used reference.  

Per Education Code, section 48900(m), a student may be suspended or expelled for possession of an "imitation firearm."  This section defines what an imitation firearm is as:

"a replica of a firearm that is so substantially similar in physical properties to an existing firearm as to lead a reasonable person to conclude that the replica is a firearm."  

This is not that clear, and is similar to the definition in Penal Code §16700(a) of an "imitation firearm."

Penal Code §16700 subsection (b) changed on January 1, 2016.  Previously, this section stated BB guns were not "imitation firearms," but offered no clarification.

This subsection now better defines what is not an "imitation firearm" (in penal code terms):

"'imitation firearm' does not include any of the following:

(1)  A nonfiring collector's replica that is historically significant, and is offered for sale in conjunction with a wall plaque or presentation case.
(2)  A spot marker gun which expels a projectile that is greater than 10mm caliber.
(3)  A BB device that expels a projectile, such as a BB or pellet, that is other than 6mm or 8mm caliber.
(4)  A BB device that is an airsoft gun that expels a projectile, such as a BB or pellet, that is 6mm or 8mm caliber which meets the following:
(A)  If the airsoft gun is configured as a handgun, in addition to the blaze orange ring on the barrel required by federal law, the airsoft gun has a trigger guard that has fluorescent coloration over the entire guard, and there is a two centimeter wide adhesive band around the circumference of the protruding pistol grip that has fluorescent coloration.
(B) If the airsoft gun is configured as a rifle or long gun, in addition to the blaze orange ring on the barrel required by federal law, the airsoft gun has a trigger guard that has fluorescent coloration over the entire guard, and there is a two centimeter wide adhesive band with fluorescent coloring around the circumference of any two of the following:
   (i) The protruding pistol grip.
   (ii) The buttstock.
   (iii) A protruding ammunition magazine or clip.
(5) 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."

The clarification may help in getting an "imitation firearm" charge dropped in school discipline matters.  This change does not mean, however, that students won't face other school or juvenile/criminal charges, particularly if a BB or airsoft device is possessed on a school campus. (still a misdemeanor under Penal Code §626.10). However, hopefully, this will prove useful for administrators and students when evaluating future discipline matters.  We shall see.

Michelle Ball
Education Law Attorney 

717 K Street, Suite 228 

Sacramento, CA 95814 
Phone: 916-444-9064 
Fax: 916-444-1209
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Please see my disclaimer on the bottom of my blog page. This is legal information, not legal advice and no attorney-client relationship is formed by this posting, etc. etc.!  This blog may not be reproduced without permission from the author and proper attribution of authorship.

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