BILL ANALYSIS                                                                                                                                                                                                    



                                                                       



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                                 THIRD READING


          Bill No:  SB 408
          Author:   Padilla (D), et al
          Amended:  1/26/10
          Vote:     27 - Urgency

           
           SENATE PUBLIC SAFETY COMMITTEE  :  4-0, 1/19/10
          AYES:  Leno, Cogdill, Cedillo, Huff

           SENATE APPROPRIATIONS COMMITTEE  :  9-0, 1/21/10
          AYES:  Kehoe, Cox, Corbett, Denham, Leno, Liu, Price,  
            Walters, Yee


           SUBJECT  :    Body armor:  possession by specified felons

           SOURCE  :     Los Angeles County District Attorney


           DIGEST  :    This bill redefines 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

           ANALYSIS  :    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  
                                                           CONTINUED





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          trauma protection for the wearer.  (Penal Code Section  
          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 Section 12370(a).)

          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:

          1.A finding that the petitioner is likely to use body armor  
            in a safe and lawful manner.

          2.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 Section 12370(a).)







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          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 Section 942.)

          Current law requires that before any body armor may be  
          purchased for use by state peace officers the Department of  
          Justice (DOJ), 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 DOJ; and  
          only body armor that is certified as acceptable by the  
          department shall be purchased for use by state peace  
          officers.  (Penal Code Section 12361.)

          Current federal law prohibits a person who has been  
          convicted of a crime of violence from possessing body  
          armor.  Similar to California's Penal Code 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 Section  
          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 Section 921.)

          This bill deletes the reference in Penal Code Section  
          12370(a) to the California code of Regulations Title 11  
          Section 94 as the definition of "body armor."








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          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."

           Background

           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.  
           
           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  Yes    
          Local:  Yes

          According to the Senate Appropriations Committee:

                          Fiscal Impact (in thousands)

           Major Provisions             2010-11             2011-12          
              2012-13             Fund

           Allows felony               Up to $92        Up to $92       
            Up to $92        General
          conviction for body
          armor possession

           SUPPORT  :   (Verified  1/25/09)

          Los Angeles County District Attorney (co-source)
          San Francisco District Attorney (co-source)
          California Police Chiefs Association (co-source)
          California Police Officers Association (co-source)
          Los Angeles County Sheriff's Department (co-source)
          Los Angeles Police Protective League (co-source)
          San Diego County District Attorney (co-source)
          Association for Los Angeles Deputy Sheriff's
          California Association of Highway Patrolmen







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          California Attorney General
          California Correctional Peace Officers Association
          California District Attorneys Association
          California Fraternal Order of Police
          California Narcotics Officers Association
          California State Sheriffs Association
          County of Los Angeles
          Long Beach Police Officers Association
          Los Angeles City Attorney
          Los Angeles County Police Chiefs Association
          Los Angeles County Professional Peace Officers Association
          Peace Officers Research Association of California
          Riverside County Sheriffs Department
          Santa Ana Police Officers Association
          San Bernardino County Sheriffs Department

           ARGUMENTS IN SUPPORT  :    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 form  
          e had 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 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 six 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 for the average  
          citizen to understand.








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          "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 (sic) section  
          12022.2(b) of the Penal Code.

          "I am carrying SB 408 to once again make it illegal for  
          violent felons to own bulletproof vests and body armor.   
          This bill has strong support throughout the law enforcement  
          community who believe that it is a significant tool in  
          protecting the safety of peace officers in the line of  
          duty."


          RJG:cm  1/26/10   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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