Metropolitan News-Enterprise


Thursday, March 11, 2010


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S.C. to Review Ruling Overturning Body Armor Ban for Felons




The California Supreme Court yesterday agreed to decide whether Penal Code Sec. 12370’s prohibition on a convicted felon’s possession of body armor is void for vagueness.

The justices, at their weekly conference in San Francisco, voted unanimously to grant Attorney General Jerry Brown’s petition for review in People v. Saleem (2009) 180 Cal.App.4th 254. The Court of Appeal for this district, Div. Three, ruled in December that the statute was void because a person of ordinary intelligence would not know whether an item he or she was wearing met the statute’s definition of body armor.

Presiding Justice Joan Dempsey Klein, joined by Justice H. Walter Croskey, explained that the law incorporated the technical definition of body armor contained in the Code of Regulations, which entails a rigorous testing regimen requiring the use of sophisticated testing 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. Justice Richard Aldrich dissented, insisting that language in the regulations stating that body armor is “popularly called a ‘bulletproof vest’ ” defined the term sufficiently to give ordinary persons notice of what is prohibited.

Decision Praised

Brown called the high court’s decision to hear the case “a clear victory for police officers everywhere” and commented in a statement that “[a]llowing criminals and gang members to arm themselves with body armor makes no sense, and I’m confident the Supreme Court will reverse this wrong-headed decision.”

Gerald Peters of Thousand Oaks, the court-appointed appellate attorney for the defendant, Ethan Saleem, said Brown’s statement was “pretty preposterous.” The unanimous decision to hear the case, he said, does not necessarily portend that the decision will be overturned.

“Anytime a criminal statute is knocked down as unconstitutional, the California Supreme Court is likely to grant review,” he explained.

The ruling came about, he said, because the statute, which defines body armor with reference to technical standards contained in state regulations, “gives you a process but doesn’t give you a result.”

He noted that the National Rifle Association and California Rifle and Pistol Association had urged the high court to deny review, and said he expected them to file an amicus brief supporting Saleem on the merits, while law enforcement organizations will likely line up on Brown’s side.

Peters said he had not seen pending legislation to revive the ban with a simpler definition, but said creating a valid law was “not an insoluble problem.”

Legislation Proposed

SB 408 by Sen. Alex Padilla, D-Pacoima, which would revive the ban and define body armor as “any bullet-resistant material intended to provide ballistic and trauma protection for the person wearing the body armor,” passed the Senate Jan. 28 as an urgency measure by a vote of 35-0. It is currently pending in the Assembly Public Safety Committee.

The bill would apply only to persons convicted of violent felonies, and would allow an exception whereby a local police chief or sheriff could grant an affected person permission to wear body armor if they needed to do so for work or safety.

Saleem, who was on parole for a prior voluntary manslaughter conviction, was arrested by a Los Angeles police officer in Wilmington during the early morning hours of Jan. 23, 2007, wearing a camouflage-patterned vest labeled “body armor.” The officer testified that the vest weighed about 10 pounds and was similar to the “ballistic” or “bulletproof” vests the officer had worn while he was deployed in Iraq with the Marines.

In other conference action, the justices:

Agreed to decide whether an order upholding a legislative subpoena is appealable.

The court said it would review the Fourth District Court of Appeal’s dismissal of five appeals by medical marijuana dispensaries challenging subpoenas issued by the Dana Point City Council.

 The city issued the subpoenas to Dana Point Beach Collective, The Point Alternative Care, Dana Point Safe Harbor Collective, Holistic Health, and Beach Cities Collective last July. The city acted under Government Code Sec. 37104, which permits a city council to issue “subpoenas requiring attendance of witnesses or production of books or other documents for evidence or testimony in any action or proceeding pending before it.”

The Orange County Register reported that the city subpoenaed the dispensaries’ records as part of an investigation into whether they were operating legally. The dispensaries argue they have a right to protect financial data and clients’ names, but Orange Superior Court Judge Glenda Sanders disagreed and ordered the dispensaries to comply.

In a brief order yesterday, the high court stayed Sanders’ orders and granted review solely to determine whether they can be appealed.

•Agreed to decide whether, in a personal injury case involving a plaintiff with private health insurance, the plaintiff’s damages may include the “negotiated rate differential”—the difference between the full amount of the medical providers’ bills and the lesser amount paid by the insurer to the medical providers under agreements in which the providers agreed to accept the lesser sums as payment in full.

The Fourth District’s Div. One held in Howell v. Hamilton Meats & Provisions, Inc. (2009) 179 Cal.App.4th 686 that the differential—which amounted to more than $130,000 of the $190,000 in medical expenses awarded to the plaintiff—was recoverable under the collateral source rule.

•Agreed to review an unpublished decision of this district’s Court of Appeal which held that an insurer was not required to provide coverage for an arson fire set by the son of the insured homeowners. The panel in Century National Insurance Co. v. Garcia, decided Dec. 2 of last year, agreed with the trial judge that language excluding coverage for the intentional acts of “any insured,” which was defined to include relatives of the named insureds, did not violate the Insurance Code.


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