Wednesday, May 13, 2009
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Court Rejects Constitutional Challenge to Body Armor Law
By KENNETH OFGANG, Staff Writer
A federal law that makes it a crime for a convicted felon to possess body armor that has been “sold or offered for sale in interstate commerce” does not violate the Commerce Clause, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
A divided panel upheld Cedrick Alderman’s conviction for violation of the James Guelff and Chris McCurley Body Armor Act of 2002, which is 18 U.S.C. Sec. 931. The law is named for a San Francisco police officer and an Alabama deputy sheriff who were killed in the line of duty by felons wearing protective body armor.
In enacting the statute, Congress cited the killings of the two law enforcement officers, as well as the 1997 North Hollywood bank robbery and ensuing shootout between Los Angeles officers and heavily armed and armored criminals, as establishing the need for the law. Congress noted that body armor was sold in interstate commerce and said existing federal, state, and local laws had proved inadequate to prevent criminals from obtaining body armor and wearing it to facilitate new crimes.
Alderman entered a conditional guilty plea, reserving the right to appeal on the ground that the law is unconstitutional. As part of the agreement, he admitted possessing a bulletproof vest that was made in California, sold to a distributor in Washington, and then delivered by the distributor to the Washington Department of Corrections.
There was no mention in the record as to how Alderman acquired the vest, which he was wearing when arrested in a 2005 drug sting. He had previously been convicted of robbery and several drug crimes.
Federal records show that he was released from prison in September of last year, six months after his appeal was argued before a three-judge panel in Seattle.
Judge M. Margaret McKeown, writing yesterday for the Ninth Circuit, said the activity criminalized by the statute has a sufficient nexus to interstate commerce to fall within congressional power under the Constitution.
The judge cited Scarborough v. United States (1977) 431 U.S. 563, in which the Supreme Court upheld a federal statute criminalizing possession of a firearm by a felon when the gun traveled in interstate commerce.
McKeown distinguished United States v. Morrison (2000) 529 U.S. 598, striking down the criminal provisions of the Violence Against Women Act, and United States v. Lopez (1995) 514 U.S. 549, declaring the Gun Free School Zones Act unconstitutional.
Unlike the Body Armor Act, McKeown explained, those statutes did not require proof of a connection between the criminalized activity and interstate or foreign commerce.
The judge noted that the Ninth Circuit, as recently as 2002, cited Scarborough in upholding the federal carjacking statute, which makes carjacking a federal crime when the car was transported in interstate commerce. She also cited decisions in other circuits that have upheld the Body Armor Act and other statutes against Commerce Clause challenges.
“We decline to create a circuit split on this issue or to deviate from binding precedent,” the judge wrote. “The congressional findings, the nature of the body armor statute, and the express requirement of a sale in interstate commerce, considered in combination, provide a sufficient nexus to and effect on interstate commerce to uphold § 931.”
Senior Judge Betty B. Fletcher concurred, but Judge Richard A. Paez dissented.
“In my view, felon-possession of body armor does not have a substantial effect on interstate commerce; its prohibition under 18 U.S.C. § 931 neither regulates commerce or any sort of economic enterprise nor regulates intrastate, non-economic activity that is essential to a comprehensive federal regulatory scheme,” the dissenting jurist wrote.
Paez argued that Scarborough did not control because the Body Armor Act differs significantly from the firearms statute, and that under Lopez the nexus between possession of body armor and interstate commerce is insufficient to support federal regulation.
The judge argued that the act “is unrelated to any broader attempt to control or suppress the market in body armor,” noting that ”Congress has not regulated the manufacture, distribution, sale, possession, or use of body armor” and that “it is perfectly legal, for example, to sell body armor to a felon or to buy body armor from a felon.”
Nor, he went on to argue, does the congressional finding that body armor is sold in interstate commerce supply the required nexus. “...I fail to see how § 931 is responsive to that finding where it does nothing to limit the interstate movement of body armor,” Paez wrote, noting that there is no requirement of a connection between the defendant and interstate commerce.
The case is United States v. Alderman, 07-30186.
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