Saturday, December 19, 2009

SAN FRANCISCO -- A decade-old California law that bans possession of body armor by anyone with a violent felony conviction is unconstitutional because the average person wouldn't be able to decipher which types of bulletproof vests are prohibited, a state appeals court has ruled.

The law, passed in 1998, was intended to protect police against flak-jacketed criminals such as Lee Boutwell, who fatally shot San Francisco Officer James Guelff in November 1994 and wounded another officer before being killed in a shootout. Congress passed a similar federal law in 2002.

The state law makes it a crime, punishable by up to three years in prison, for felons with violent offenses on their record to possess or wear body armor. State regulations define body armor as apparel that provides "ballistic resistance to the penetration of the test ammunition" for certain types of guns, a standard also used to certify armor for police.

Another law, not involved in the court case, adds one to five years to the sentence of anyone who commits a violent crime while wearing "any bullet-resistant material," a broader definition than the terms of the 1998 law.

In Thursday's ruling, the Second District Court of Appeal in Los Angeles said even someone who owned a device that had been sold as a bulletproof vest wouldn't know, without testing or expert advice, whether it fit the law's definition of body armor.

"We do not see how, without providing something like an official list of prohibited vests, the statute can be said to provide either fair notice to a defendant or meaningful guidelines to the officer on the street," Presiding Justice Joan Dempsey Klein said in the 2-1 ruling.

When someone is charged with possessing an illegal weapon or device, the prosecution is constitutionally required to show that the defendant should have known the characteristics that made the item illegal, Klein said. She cited state and federal rulings overturning assault weapons convictions because the defendant's gun was not on the government's list of prohibited weapons.

Dissenting Justice Richard Aldrich said a violent felon who possesses armor that appears to be bullet-resistant is on notice that the device may be illegal, even if the owner doesn't know the technical specifications.

The ruling overturned the conviction of Ethan Saleem, who was arrested in January 2007 in Los Angeles after the driver of his car abruptly pulled off the road when a patrol car approached. Saleem was wearing a 10-pound military-style armored vest labeled "body armor, fragmentation protection," the court said.

A pamphlet inside the vest warned that it would not protect against small-arms fire, but a police expert testified that the device would stop a .22-caliber bullet, testimony that helped persuade the jury that Saleem possessed body armor.

Saleem, who had a previous manslaughter conviction and four other felonies on his record, was sentenced to eight years in prison.

His lawyer, Gerald Butler, said the law's defect was its reliance on obscure and convoluted regulations that were designed for police departments, not ordinary citizens. He said the state might fix the law by simplifying the definition, listing prohibited models or requiring sellers to attach labels to vests that violent felons are barred from wearing.

The state could appeal the ruling to the California Supreme Court.

The ruling can be read at links.sfgate.com/ZIYQ

http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/12/18/BASN1B6DOO.DTL&type=printable