Metropolitan News-Enterprise


Thursday, February 4, 2010


Page 1


Court Upholds Federal Ban on Body Armor for Felons


By STEVEN M. ELLIS, Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday, over the dissent of four of its judges, declined to review en banc a ruling upholding a federal ban on body armor possession by felons.

A divided three-judge panel ruled last May that a federal law making 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 panel, in an opinion by Judge M. Margaret McKeown, upheld Cedrick Alderman’s conviction for violating the James Guelff and Chris McCurley Body Armor Act of 2002. The law, 18 U.S.C. § 931, is named for a San Francisco police officer and an Alabama deputy sheriff killed in the line of duty by felons wearing protective body armor.

A majority of the Ninth Circuit’s active judges voted against review, but Judge Diarmuid O’Scannlain—joined by Judges Richard A. Paez, Jay S. Bybee and Carlos T. Bea—said that Congress overstepped its bounds.

In enacting the statute, Congress cited the killings of Guelff and McCurley, 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. Legislators noted that body armor was sold in interstate commerce and said existing federal, state and local laws had proven inadequate to prevent criminals from obtaining body armor and wearing it to facilitate new crimes.

Alderman, who had previously been convicted of robbery and drug crimes, was arrested in a 2005 drug sting wearing a bulletproof vest that was made in California, sold to a distributor in Washington and delivered to the Washington Department of Corrections. It was unclear how Alderman acquired the vest, and federal records show he was released from prison in September 2008, six months after his appeal was argued before the three-judge panel in Seattle.

Senior Judge Betty B. Fletcher joined McKeown in the panel’s ruling that activity criminalized by the statute had a sufficient nexus to interstate commerce to fall within congressional power because the statute required proof of a connection between the activity and interstate or foreign commerce.

McKeown 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.

However, Paez dissented, and O’Scannlain and the other judges dissenting from the order denying rehearing adopted Paez’s position.

“The Supreme Court has told us with increasing fervor that there are limits to the power of Congress to federalize regulation of personal conduct,” O’Scannlain said, pointing to rulings striking down federal laws criminalizing possession of a handgun within 1,000 feet of a school and arson, and fashioning a federal remedy for claims of violence against women.

Accusing the panel majority of “erroneously allow[ing] the federal government to legislate in a domain traditionally regulated by the states,” the judge said the opinion created a split with seven other circuits.

The ruling comes in the wake of an opinion by this district’s Court of Appeal in December striking down a similar state ban. A divided panel of Div. Three held in People v. Saleem 180 Cal.App.4th 254 that Penal Code Sec. 12370 was unconstitutionally vague.

Presiding Justice Joan Dempsey Klein, joined by Justice H. Walter Croskey, concluded that the state law incorporated a technical definition of body armor contained in the Code of Regulations, which entailed a rigorous testing regimen requiring the use of sophisticated facilities to establish that a particular vest will protect against specified ammunition.

Klein reasoned that a person of ordinary intelligence would have no reasonable way of knowing if a particular vest met the stringent requirements necessary to qualify as body armor under the regulations, and that the failure to provide fair notice “in terms that are meaningful to people of ordinary intelligence” offended due process.

Last month, Los Angeles County District Attorney Steve Cooley endorsed a bill by Sen. Alex Padilla, D-Pacoima, which would reinstate a state ban. Senate Bill 408 defines body armor as “any bullet-resistant material intended to provide ballistic and trauma protection for the person wearing body armor.” The bill would also make it possible to charge any person convicted of a violent offense who is later found in possession of body armor with a felony.

The case is United States v. Alderman, 07-30186.


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