October 24, 2008
LEGISLATION ON PAINTBALL GUNS
By: Christopher Reinhart, Senior Attorney
You asked for information on legislation regulating paintball guns in other states and proposals in Connecticut.
We found eight states with statutes that regulate paintball guns or paintball activities. The laws in these states regulate paintball in a number of ways.
1. Three states regulate sales to and possession by minors (Illinois for minors under age 13 and New Hampshire and Rhode Island for minors under age 18.).
2. Two states permit towns to adopt ordinances related to paintball guns (Delaware only authorizes Wilmington to do so but Virginia authorizes all local authorities to do so.)
3. Illinois prohibits using a paintball gun from or across a street, sidewalk, road, highway, public land, or public place except on a safely constructed target range.
4. Pennsylvania prohibits using a paintball gun against someone who is not participating in a paintball game or activity.
5. Pennsylvania imposes requirements on transporting paintball guns in vehicles.
6. Pennsylvania imposes a criminal penalty for causing property damage with a paintball gun.
7. New Hampshire allows schools to expel students for possessing a paintball gun.
8. Two states limit government liability if a government entity allows paintball on its property (Florida and Texas).
9. Delaware designates paintball as an agritourism activity allowed on farms.
Paintball guns may also be regulated in some states if they fit under a state's definition of a “weapon” or a similar term. Laws regulating the sale, possession, use, or transportation of “weapons” may apply to paintball guns in those states. For example, in two cases where minors improperly used paintball guns to cause damage to persons and property, respectively, courts held that paintball guns are weapons. A New York Supreme Court judge ruled that a paintball gun that used a carbon dioxide cartridge was an “air-gun” within the meaning of the state's Penal Law, and held a teen and his parents liable for injuries to another child caused by the gun's misuse (Danielle A. v. Christopher P., 776 N.Y. S. 2d 226 (2/13/04)). In State of New Jersey, in the Interest of G.C., 846 A. 2d 1222 (2004), the court found that a paintball gun used to damage an unoccupied parked car was a weapon under that state's law making it illegal for minors to possess weapons.
Since 2002, six bills in Connecticut addressed paintball guns but none have become law. These proposals addressed using a motor vehicle to engage in paintball, prohibiting children from shooting paintball at or near a home or vehicle, excluding paintball guns from the definition of “firearm” in the penal code, and using or possessing non-biodegradable paintball pellets or projectiles on public property.
PAINTBALL STATUTES IN OTHER STATES
Town Ordinances. Delaware law generally prohibits towns from enacting laws regulating firearms. But it specifically permits Wilmington to enact a law or ordinance on possessing or concealing paintball guns as necessary to protect public safety (22 Del. C. § 111)
Agritourism. Effective July 21, 2008, Delaware provides that agritourism activities, which include paintball, may be allowed on farms of 10 or more acres subject to certain provisions (9 Del. C. § 306)
Government Liability. A Florida law:
1. encourages government owners or lessees of property to make land available to the public for paintball, among other things;
2. recognizes that government owners or lessees have failed to make property available for these activities because of the exposure to liability and the cost of insurance, if available; and
3. recognizes that risks and dangers are inherent in these activities, which should be assumed by the participants.
The law does not grant authority or permission to engage in these activities unless a government entity specifically designates land for use. The government entity must post a rule in each designated area identifying authorized activities and indicating that a child under age 17 cannot engage in the activities until the entity has written consent, in an acceptable form, from the child's parents or legal guardians.
A government entity or public employee is not liable to anyone who voluntarily participates in paintball for damage or injury to people or property from participating in the activity in a designated area. This does not limit liability that would otherwise exist for:
1. failing to guard against or warn of a dangerous condition which a participant does not and cannot reasonably be expected to have notice;
2. gross negligence by the government entity or public employee that is the proximate cause of the injury; or
3. the government entity's failure to obtain written consent from the parents or legal guardians of a child under age 17 before authorizing the child to participate, unless the child's participation violates posted rules.
The law does not create a duty of care or basis of liability for death, personal injury, or damage to personal property and does not waive sovereign immunity. It does not limit the liability of an independent concessionaire or a person or organization (other than a government entity or public employee) for injuries or damages suffered as a result of their operating paintball equipment on public property, regardless of whether the person or organization has a contractual relationship with a government entity to use the public property. Anyone who participates or assists in paintball assumes the known and unknown inherent risks in these activities and is legally responsible for all damages, injury, or death to himself, herself, or other persons or property which result from these activities. Anyone who observes paintball activities also assumes the known and unknown inherent risks in these activities and is legally responsible for all damages, injury, or death to himself or herself which result from these activities. A government entity that sponsors, allows, or permits paintball on its property is not required to eliminate, alter, or control the inherent risks in these activities.
While engaged in paintball, irrespective of where such activities occur, a participant is responsible for:
1. acting within the limits of his or her ability and the purpose and design of the equipment used;
2. maintaining control of himself or herself and the equipment used; and
3. refraining from acting in a manner that may cause or contribute to death or injury of himself, herself, or others.
Failing to comply with these requirements is negligence.
If a government entity carries insurance that covers any of these acts, it does not waive the protections of the law (Fla. Stat. § 316.0085).
Sale to and Use By Minors. Illinois law includes paintball guns under the definition of “air rifles” and regulates their sale to and possession by minors under age 13.
The law prohibits a dealer from selling, lending, renting, giving, or otherwise transferring an air rifle to someone under age 13 when the dealer knows or believes the person is under 13 or the dealer does not make a reasonable inquiry into the person's age. It also prohibits anyone else from selling, giving, lending or otherwise transferring an air rifle to someone under age 13 except for the child's parent, guardian, or adult instructor or someone who legally stands in place of the minor's parents.
Someone under age 13 cannot carry an air rifle on public streets or public land unless it is unloaded. Someone under age 13 can only possess an air rifle if:
1. it is kept within his or her house of residence or other private enclosure;
2. he or she is an enrolled member of a club, team, or society organized for educational purposes that maintains or has written permission to use a rifle range under the supervision, guidance, and instruction of a responsible adult and the air rifle is actually used in connection with the activities and under adult supervision; or
3. it is used in or on private grounds or a residence and it is used in a way that does not endanger people or property and that prevents the projectile from passing over any place outside the limits of the grounds or residence.
The law does not prohibit sales (1) by wholesalers, (2) for shipment out-of-state, or (3) for target ranges as provided by the act or for military or veterans' organizations.
State police, sheriffs, and police officers must seize, at the owner's expense, an air rifle sold or used in a way that violates these provisions. Dealers who violate these provisions commit a petty offense, which is subject to a fine of up to $1,000. Anyone who violates any other provision commits a petty offense and must pay a fine of up to $50.
The law does not invalidate any town ordinance with greater restrictions or limits on sales, purchases, use, or possession of air rifles (720 ILCS 535/1 et seq.).
Where Air Rifles Cannot Be Used. The law prohibits discharging an air rifle from or across a street, sidewalk, road, highway, public land, or public place except on a safely constructed target range. The same penalties listed about apply to this provision (720 ILCS 535/1 et seq.).
School Expulsion. New Hampshire allows local school boards to expel a pupil for possessing a paintball gun (RSA 193:13).
Sale to and Use By Minors. The law makes it a violation to sell, rent, or give a paintball gun to someone under age 18 without the written consent of the person's parent or guardian. Someone under age 18 can only use a paintball gun at home under parental supervision or on an approved range under responsible adult supervision. Someone under age 18 can only possess a paintball gun at home under parental supervision or on the way to or from an approved range that is under the supervision of a responsible adult such as an instructor in gun safety or marksmanship (RSA 644:14).
Carrying in Vehicles and Use Against Non-Players. Pennsylvania law prohibits someone from carrying a paintball gun or paintball marker in a vehicle on a highway unless:
1. it is empty of encapsulated gelatin paintballs;
2. the propellant source on the paintball gun or paintball marker is disconnected, disabled, or turned off;
3. the paintballs are stored in a separate and closed container; and
4. the paintball gun or paintball marker is in a secure wrapper, has a barrel-blocking device, or is not readily or directly accessible from the passenger compartment of the vehicle.
This does not apply to a commercial paintball field, range, or course where passengers are transported by the operator to and from designated player areas.
An individual cannot discharge or fire a paintball gun or paintball marker at a person who is not participating in paintball games or paintball-related recreational activities.
A violation is a summary offense punishable by up to 90 days in prison, a fine of up to $300, or both (18 Pa.C.S. § 2707.2).
Causing Property Damage. It is criminal mischief if a person intentionally defaces personal, private, or public property by discharging a paintball gun or paintball marker at that property. This crime is a:
1. felony of the third degree if the actor intentionally causes (a) pecuniary loss in excess of $5,000 or (b) a substantial interruption or impairment of public communication; transportation; supply of water, gas or power; or other public service (punishable by up to seven years in prison, a fine of up to $15,000, or both);
2. misdemeanor of the second degree if the actor intentionally causes pecuniary loss in excess of $1,000 (punishable by up to two years in prison, a fine of up to $5,000, or both);
3. misdemeanor of the third degree if the actor intentionally or recklessly causes pecuniary loss in excess of $500 (punishable by up to one year in prison, a fine of up to $2,500, or both); or
4. summary offense (punishable by up to 90 days in prison, a fine of up to $300, or both) (18 Pa.C.S. § 3304).
Sale to Minors. Rhode Island prohibits selling paintball guns to someone under age 18 without the written authorization of the minor's parent or legal guardian. Violations are subject to one to five years in prison, fines of $1,000 to $3,000, or both and the weapons are confiscated (Gen. Laws § 11-47-42).
Government Liability. Texas law limits the liability of a government unit that allows paintball activities on premises it owns, operates, or maintains. It also requires posting a warning sign (Tex. Civ. Prac. & Rem. Code § 75.002).
Local Ordinances. Virginia allows its counties, cities, and towns to regulate “pneumatic guns” which include paintball guns. A locality can adopt an ordinance to prohibit the shooting of pneumatic guns in any area that is so heavily populated that it is dangerous to inhabitants and can require a parent, guardian, or other adult approved by a parent or guardian to supervise a minor under the age of 16 in use of pneumatic guns on private or public property. The ordinance can specify that minors above 16 can, with a parent's or guardian's written consent, use a pneumatic gun at any place designated for use by the local governing body or on private property with the owner's consent. The ordinance can specify that a minor is responsible for obeying all laws, regulations, and restrictions on use. Any penalty set by an ordinance cannot exceed a Class 3 misdemeanor (punishable by a fine of up to $500).
An ordinance cannot prohibit use of pneumatic guns at shooting ranges or other property where firearms may be discharged.
A parent, guardian, Junior Reserve Officers Training Corps instructor, or certified instructor must directly supervise training minors in using pneumatic guns. Minors over 16 can be trained without direct supervision if approved by the minor's instructor, with the permission of and under the responsibility of a parent or guardian. Ranges and instructors may be certified by the National Rifle Association, a state or federal agency with a certification program, a service of the Department of Defense, or a person authorized by these authorities to certify ranges and instructors.
The law authorizes the creation and operation of commercial or private areas designated for use of pneumatic paintball guns for recreational use. Participants must be given equipment to protect the face and ears and signs must warn against entering the paintball area unprotected or unaware that paintball guns are in use (Va. Code § 15.2-915.4).
CONNECTICUT PROPOSED BILLS
Since 2002, six bills in Connecticut addressed paintball guns but none have become law. One proposal, introduced in three session, would have required a three-month driver's license suspension and 120 hours of community service for someone who uses a motor vehicle to engage in paintball. This proposal was introduced in 2003 (Proposed Bill 5851), 2005 (Proposed Bill 5117), and 2007 (Proposed Bill 5087). It received a public hearing in 2005 and 2007 but no further action. A bill in 2005 (Proposed Bill 5483) would have prohibited children from shooting paintballs at or near a home or vehicle. Another bill in 2005 (SB 1133) would have amended the definition of “firearm” in the penal code to exclude paintball guns but this provision was not included in the version of the bill that became law. A 2008 bill (SB 626) would have made it an infraction to use or possess a paintball pellet or projectile on state or municipal property unless it was biodegradable. This bill received a public hearing but no further action.