BILL ANALYSIS SENATE COMMITTEE ON PUBLIC SAFETY Senator Mark Leno, Chair S 2009-2010 Regular Session B 4 0 8 SB 408 (Padilla) As Amended January 13, 2010 Hearing date: January 19, 2010 Penal Code (URGENCY) SM:mc BODY ARMOR: POSSESSION BY SPECIFIED FELONS HISTORY Source: Los Angeles County District Attorney; San Francisco County District Attorney Prior Legislation: AB 960 (V. Manuel Perez) (2009) - pending, Senate Public Safety AB 1707 (Wildman) - Chap. 297, Stats. of 1998 Support: Association for Los Angeles Deputy Sheriffs; California District Attorneys Association; California Narcotic Officers Association; California Peace Officers' Association; California Police Chiefs Association; California State Sheriffs' Association; California Statewide Law Enforcement Association; Los Angeles County Board of Supervisors; Riverside Sheriffs' Association; San Diego District Attorney; Attorney General; San Bernardino County Sheriff; Peace Officers Research Association of California (PORAC) Opposition:None known (More) SB 408 (Padilla) PageB KEY ISSUE SHOULD THE DEFINITION OF BODY ARMOR THAT A PERSON WITH A PRIOR VIOLENT FELONY CONVICTION IS PROHIBITED FROM POSSESSING BE AMENDED TO PROVIDE THAT SUCH BODY ARMOR INCLUDES "ANY BULLET-RESISTANT MATERIAL INTENDED TO PROVIDE BALLISTIC AND TRAUMA PROTECTION FOR THE PERSON WEARING THE BODY ARMOR?" PURPOSE The purpose of this bill is to redefine "body armor" as "any bullet-resistant material intended to provide ballistic and trauma protection for the person wearing the body armor," for purposes of the prohibition on possession of body armor by persons convicted of a violent felony. Current law provides that any person who wears a body vest in the commission or attempted commission of a violent offense, as defined, shall, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished by an additional term of one, two, or five years. For purposes of this statute, "body vest" means any bullet-resistant material intended to provide ballistic and trauma protection for the wearer. (Penal Code 12022.2(b) and (c).) Current statute provides that any person who has been convicted of a violent felony, as defined, under the laws of the United States, the State of California, or any other state, government, or country, who purchases, owns, or possesses body armor, as defined by Section 942 of Title 11 of the California Code of Regulations, except as specified below, is guilty of a felony, punishable by imprisonment in a state prison for 16 months, or two or three years. (Penal Code 12370(a).) (More) SB 408 (Padilla) PageC Current statute states that any person whose employment, livelihood, or safety is dependent on the ability to legally possess and use body armor, who is subject to the prohibition on possession of body armor due to a prior violent felony conviction, may file a petition with the chief of police or county sheriff of the jurisdiction in which he or she seeks to possess and use the body armor for an exception to this prohibition. The chief of police or sheriff may reduce or eliminate the prohibition, impose conditions on reduction or elimination of the prohibition, or otherwise grant relief from the prohibition as he or she deems appropriate, based on the following: A finding that the petitioner is likely to use body armor in a safe and lawful manner. A finding that the petitioner has a reasonable need for this type of protection under the circumstances. In making its decision, the chief of police or sheriff shall consider the petitioner's continued employment, the interests of justice, any relevant evidence, and the totality of the circumstances. It is the intent of the Legislature that law enforcement officials exercise broad discretion in fashioning appropriate relief under this paragraph in cases in which relief is warranted. However, this paragraph may not be construed to require law enforcement officials to grant relief to any particular petitioner. Relief from this prohibition does not relieve any other person or entity from any liability that might otherwise be imposed. (Penal Code 12370(a).) Current statute defines "body armor," for purposes of section 12370, as "those parts of a complete armor that provide ballistic resistance to the penetration of the test ammunition for which a complete armor is certified." (Title 11 California Code of Regulations 942.) (More) SB 408 (Padilla) PageD Current law requires that before any body armor may be purchased for use by state peace officers the Department of Justice, after consultation with the Department of the California Highway Patrol, shall establish minimum ballistic performance standards, and shall determine that the armor satisfies those standards. Only body armor that meets state requirements for acquisition or purchase shall be eligible for testing for certification under the ballistic performance standards established by the Department of Justice; and only body armor that is certified as acceptable by the department shall be purchased for use by state peace officers. (Penal Code 12361.) Current federal law prohibits a person who has been convicted of a crime of violence from possessing body armor. Similar to California's section 12370, federal law states that it is an affirmative defense to prove that the defendant had obtained prior written certification from his or her employer, as defined, that the defendant's purchase, use, or possession of body armor was necessary for the safe performance of lawful business activity; and the use and possession by the defendant were limited to the course of such performance. (18 USC 931.) Current federal law defines "body armor, for purposes of the above prohibition as, "any product sold or offered for sale, in interstate or foreign commerce, as personal protective body covering intended to protect against gunfire, regardless of whether the product is to be worn alone or is sold as a complement to another product or garment." (18 USC 921.) This bill deletes the reference in section 12370(a) to the California Code of Regulations Title 11 Section 94 as the definition of "body armor." This bill instead defines "body armor" as "any bullet-resistant material intended to provide ballistic and trauma protection for the person wearing the body armor." RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION (More) SB 408 (Padilla) PageE California continues to face a severe prison overcrowding crisis. The Department of Corrections and Rehabilitation (CDCR) currently has about 170,000 inmates under its jurisdiction. Due to a lack of traditional housing space available, the department houses roughly 15,000 inmates in gyms and dayrooms. California's prison population has increased by 125% (an average of 4% annually) over the past 20 years, growing from 76,000 inmates to 171,000 inmates, far outpacing the state's population growth rate for the age cohort with the highest risk of incarceration.<1> In December of 2006 plaintiffs in two federal lawsuits against CDCR sought a court-ordered limit on the prison population pursuant to the federal Prison Litigation Reform Act. On February 9, 2009, the three-judge federal court panel issued a tentative ruling that included the following conclusions with respect to overcrowding: No party contests that California's prisons are overcrowded, however measured, and whether considered in comparison to prisons in other states or jails within this state. There are simply too many prisoners for the existing capacity. The Governor, the principal defendant, declared a state of emergency in 2006 because of the "severe overcrowding" in California's prisons, which has caused "substantial risk to the health and safety of the men and women who work inside these prisons and the inmates housed in them." . . . A state appellate court upheld the Governor's proclamation, holding that the evidence supported the existence of conditions of "extreme peril to the safety of persons and property." (citation omitted) The Governor's declaration of the ---------------------- <1> "Between 1987 and 2007, California's population of ages 15 through 44 - the age cohort with the highest risk for incarceration - grew by an average of less than 1% annually, which is a pace much slower than the growth in prison admissions." (2009-2010 Budget Analysis Series, Judicial and Criminal Justice, Legislative Analyst's Office (January 30, 2009).) (More) SB 408 (Padilla) PageF state of emergency remains in effect to this day. . . . the evidence is compelling that there is no relief other than a prisoner release order that will remedy the unconstitutional prison conditions. . . . Although the evidence may be less than perfectly clear, it appears to the Court that in order to alleviate the constitutional violations California's inmate population must be reduced to at most 120% to 145% of design capacity, with some institutions or clinical programs at or below 100%. We caution the parties, however, that these are not firm figures and that the Court reserves the right - until its final ruling - to determine that a higher or lower figure is appropriate in general or in particular types of facilities. . . . Under the PLRA, any prisoner release order that we issue will be narrowly drawn, extend no further than necessary to correct the violation of constitutional rights, and be the least intrusive means necessary to correct the violation of those rights. For this reason, it is our present intention to adopt an order requiring the State to develop a plan to reduce the prison population to 120% or 145% of the prison's design capacity (or somewhere in between) within a period of two or three years.<2> The final outcome of the panel's decision, as well as any appeal --------------------------- <2> Three Judge Court Tentative Ruling, Coleman v. Schwarzenegger, Plata v. Schwarzenegger, in the United States District Courts for the Eastern District of California and the Northern District of California United States District Court composed of three judges pursuant to Section 2284, Title 28 United States Code (Feb. 9, 2009). (More) SB 408 (Padilla) PageG that may be in response to the panel's recent final decision, is unknown at the time of this writing. This bill does appear to aggravate the prison overcrowding crisis outlined above. COMMENTS 1. Need for This Bill According to the author: The James Guelff Act was signed into law in 1998. This critically important public safety measure prohibited violent felons from possessing body armor. Passage of this law followed two horrific incidents: San Francisco police officer James Guelff was killed in 1994 during a gun battle with a car-jacking suspect wearing full body armor. At the end of a 32- minute gun battle involving 120 officers, the suspect was finally killed by a San Francisco Police Department sniper. In 1997, in North Hollywood, two bank robbers covered from head to toe in body armor were able to engage 350 LAPD officers in an hour long gun battle. The body armor the robbers were using could not be penetrated by the officers' handguns and shotguns. The bullets simply bounced off of the body armor. It was not until additional officers arrived with higher caliber guns that the suspects were finally stopped. Tragically, 11 police officers and 6 civilians were wounded. On December 17th, 2009 the California Second District Court of Appeals ruled that the James Guelff Act was unconstitutionally vague. They stated that the definition of body armor in the law was too confusing (More) SB 408 (Padilla) PageH for the average citizen to understand. SB 408 addresses the decision of the court by clarifying the definition of body armor. The language in the bill is the same as the definition used the section 12022.2 (b) of the Penal Code. I'm carrying SB 408 to once again make it illegal for violent felons to own bullet-proof vests and body armor. This bill has strong support throughout the law enforcement community who believe that this is a significant tool in protecting the safety of peace officers in the line of duty. 2. Redefining Body Armor Under current law, any person who has been convicted of a violent felony is prohibited from owning or possessing body armor. (Penal Code 12370(a).) "Body armor" is defined in that statute by reference to Title 11 of the California Code of Regulations, section 942. That definition reads, "those parts of a complete armor that provide ballistic resistance to the penetration of the test ammunition for which a complete armor is certified." A similar statute also prohibits wearing a "body vest" in the commission or attempted commission of a violent offense. (Penal Code 12022.2(b) and (c).) That statute, by contrast, defines a "body vest" as, "any bullet-resistant material intended to provide ballistic and trauma protection for the wearer." (More) This bill would change the definition of "body armor" contained in section 12370 to conform to the definition of "body vest" contained in section 12022.2. 3. Section 12370 Has Been Found Unconstitutional On December 17, 2009, the 2d District Court of Appeal held in People v. Saleem, 180 Cal.App.4th 254 (2009) that Penal Code section 12370 is unconstitutionally vague, and this statute is, therefore, invalid at this time unless or until a higher court stays or overturns that decision. The basis of the decision was that "? only an expert would know if any particular protective body vest was proscribed by section 12370." (Saleem, supra.) This bill comes in response to the Saleem decision and is intended to reinstate the prohibition on violent felons owning body armor. 4. Certified Body Armor Penal Code sections 12360, et seq. require that before any body armor is provided to peace officers in California, it must be certified by the Department of Justice as meeting certain standards. The definition of body armor contained in the Code of Regulations is part of the regulatory scheme which implements the certification requirements set forth in Penal Code sections 12360, et seq. By utilizing this definition section 12370(a) therefore prohibited persons with violent felony convictions from possessing law enforcement grade body armor but not all material that might be considered by a lay person as body armor. As the Court stated in Saleem: [] the body armor proscribed by section 12370 is not just any garment popularly known as a bulletproof vest. Given the detailed technical specifications spelled out in the Code of Regulations, and specifically referenced by section 12370, the proscribed body armor must be some subset of the category garments popularly called bulletproof vests. (People v. Saleem, supra.) (More) SB 408 (Padilla) PageJ Therefore, redefining "body armor" in section 12370(a) as "any bullet-resistant material intended to provide ballistic and trauma protection for the person wearing the body armor," as this bill proposes, would broaden the definition of what is illegal to possess if you are a person with a violent felony conviction beyond that which was prohibited by section 12370. 5. Existing Federal Law Prohibits This Conduct As noted above, apart from the statute this bill seeks to reinstate, wearing body armor in the commission or attempted commission of a violent crime subjects the wearer to a sentence enhancement of an additional 1, 2, or 5 years in prison. (Penal Code 12022.2.) The subject of this bill is the possession of body armor by a person with a violent felony conviction, apart from its use to commit a crime. Although the California statute which prohibits possession of body armor by these felons is currently invalid, the same conduct is still prohibited under federal law. (18 USC 931.) The penalty is up to three years in federal prison. (18 USC 924(a)(7).) ***************