BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 408|
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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)
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
California Attorney General
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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 addresses the decision of the court by clarifying
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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 1/25/10 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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