BILL ANALYSIS
SB 408
Page 1
Date of Hearing: April 22, 2010
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 408 (Padilla) - As Amended: January 26, 2010
SUMMARY : Deletes the existing definition of "body armor" and
instead defines "body armor" as "any bullet-resistant material
intended to provide ballistic and trauma protection for the
person wearing the armor" for purposes of the prohibition on
possession of body armor by persons convicted of a violent
felony.
EXISTING LAW :
1)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
Section 12022.2(b) and (c).]
2)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).]
3)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
SB 408
Page 2
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 [Penal
Code Section 12370(a)]:
a) A finding that the petitioner is likely to use body
armor in a safe and lawful manner; and,
b) 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).]
4)Defines "body armor," for purposes of Penal Code 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 (CCR) 942.]
5)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 DOJ shall be purchased for use by state peace
officers. [Penal Code Section 12361.]
6)Prohibits, under federal law, a person who has been convicted
of a crime of violence from possessing body armor. Similar to
SB 408
Page 3
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.)
7)Defines, under federal law, "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.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : 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 firefight 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 Los Angeles
Police Department officers in an hour long gun battle. The
body armor the robbers were using could not be penetrated by
the officers' handguns or shotguns. The bullets simply
bounced off of them. 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
SB 408
Page 4
vague. They stated that the definition of body armor in the
law was too confusing 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
CCR Section 942 and 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 Section 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."
This bill changes the definition of "body armor" contained in
Penal Code Section 12370 to conform to the definition of "body
vest" contained in Penal Code Section 12022.2.
3)Penal Code Section 12370 Has Been Found Unconstitutional : On
December 17, 2009, the Second District Court of Appeal held in
People v. Saleem, 180 Cal.App.4th 254 (2009) that Penal Code
Section 12370 is unconstitutionally vague and that 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 is in response to the Saleem
decision and is intended to reinstate the prohibition on
violent felons owning body armor.
SB 408
Page 5
4)People vs. Rodriquez : In February 2008, the California Fourth
District Appellate Court, in an unpublished opinion,
overturned a Penal Code Section 12370 conviction for
possession of "body armor" by a person convicted of a violent
felony due to lack of evidence that the body armor "was
certified to "provide ballistic resistance to the penetration
of test ammunition." [People v. Rodriguez 2008 WL 544295, 4
(Cal.App. 4 Dist.).] Certification would have required
extensive testing of the armor, which would have to meet the
body armor standards defined in CCR Sections 941 and 942.
When defining "body armor," Penal Code Section 12370 currently
references CCR Sections 941 and 942, which was intended to
define "body armor" certification for purchase and use by law
enforcement. Uncertified but otherwise effective body armor
is not currently illegal for ownership by a person convicted
of a violent felony.
5)Certified Body Armor : Penal Code Section 12360, et seq.,
requires that before any body armor is provided to peace
officers in California, it must be certified by DOJ as meeting
certain standards. The definition of body armor contained in
the CCR is part of the regulatory scheme which implements the
certification requirements set forth in Penal Code Sections
12360, et seq. By utilizing this definition, Penal Code
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 Saleem Court stated, "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.)
Therefore, redefining "body armor" in Penal Code 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 broadens the definition of
what is illegal to possess for a person with a violent felony
conviction beyond that which was prohibited by Penal Code
Section 12370.
SB 408
Page 6
6)Existing Federal Law Prohibits This Conduct : As noted above,
apart from the statute, this bill reinstates that wearing body
armor in the commission or attempted commission of a violent
crime subjects the wearer to a sentence enhancement of an
additional one, two, or five years in state prison. (Penal
Code Section 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 Section 931.)
The penalty is up to three years in federal prison. [18 USC
Section 924(a)(7).]
7)Argument in Support : The Los Angeles District Attorney's
Office states, "[t]he law was recently found to be
unconstitutional due to a flaw in the definition of 'body
armor'. SB 408 corrects the constitutional defect and
restores this vital public safety protection.
"Unless this bill is adopted by the Legislature and signed into
law, it will be legal for violent felons to possess and wear
body armor in California. We believe that there is a very
real possibility that a peace officer or member of the public
will be killed or seriously injured unless the ban on body
armor for violent felons is reinstated.
"The California Legislature enacted Penal Code Section 12370 in
1998, as a response to several incidents in which violent
felons possessed body armor during confrontations with law
enforcement, including the murder of San Francisco Police
Officer James Guelff by a felon wearing body armor. Over 120
police officers were held over a half an hour. In a North
Hollywood bank robbery, two criminals wearing body armor held
off 350 police officers during a gun battle that lasted an
entire hour.
"Violent felons who possess body armor represent a serious
threat not only to law enforcement officers by to the general
public as well. SB 408 will help protect the lives of law
enforcement officers and citizens by making it unlawful to
again in California for violent felons to possess body armor."
SB 408
Page 7
8)Related Legislation: AB 960 (V. Manual Perez) amends the
definition of "body armor" for the purposes of streamlining
the prosecution of persons previously convicted of a violent
felony from owning or possessing body armor. AB 960 is
pending hearing by the Senate Public Safety Committee.
9)Prior Legislation : AB 1707 (Wildman), Chapter 297, Statutes
of 1998, made it a felony for any person convicted of a
violent felony to possess body armor.
REGISTERED SUPPORT / OPPOSITION :
Support
Attorney General of California
California Association of Highway Patrolmen
California Correctional Peace Officers Association
California District Attorneys Association
California Highway Patrol
California Narcotic Officers Association
California Peace Officers Association
California Police Chiefs Association
California State Sheriffs' Association
City of Los Angeles
County of Los Angeles
District Attorney's Office of San Francisco
Los Angeles County District Attorney's Office (sponsor)
Los Angeles Deputy Sheriffs
Los Angeles Mayor Antonio Villaraigosa
Los Angeles Police Protective League
Orange County Employees Association
Peace Officers Research Association of California
Riverside Sheriffs' Association
San Bernardino Sheriff's Department
San Diego County District Attorney's Office
San Diego Police Officers Association
San Francisco Police Department
Opposition
None
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744
SB 408
Page 8