BILL ANALYSIS ------------------------------------------------------------ |SENATE RULES COMMITTEE | SB 408| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ 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 SB 408 Page 2 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).) SB 408 Page 3 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." SB 408 Page 4 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 SB 408 Page 5 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. SB 408 Page 6 "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 **** END ****