BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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SB 408 (Padilla)
As Amended January 13, 2010
Hearing date: January 19, 2010
Penal Code (URGENCY)
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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
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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).)
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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.)
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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
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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
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<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).)
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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).
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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
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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."
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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.)
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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).)
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