A California appellate court has struck down the state law barring ex-felons from possessing body armor. The law was passed in 1998 and the Congress passed a similar federal law in 2002.

The California law was passed in response to case like that of Lee Boutwell, who fatally shot San Francisco Officer James Guelff in November 1994 and wounded another officer before being killed in a shootout. Boutwell was wearing a ballistic helmet, a flack jacket, and carrying hundreds of rounds of ammunition. The law made it punishable by up to three years in prison for felons with violent offenses to possess the body armor.

The Second District Court of Appeal in Los Angeles ruled that the law was vague and people could own a vest without knowing that it qualified as body armor under the state law. In a 2-1 ruling, Presiding Justice Joan Dempsey Klein held “[w]e 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.”

The ruling overturned the conviction of Ethan Saleem, who was arrested in January 2007 in Los Angeles. Here is how the Court described the arrest:

On January 23, 2007, at about 3:00 a.m., Los Angeles Police Officer Jeffrey Rivera and his partner were on patrol in Wilmington. Rivera was in the passenger seat of their marked patrol car. He saw an approaching vehicle make a quick right turn and pull off to the side of the road. Because this seemed suspicious, the officers circled the block and came to a stop next to a Honda Element. The Honda’s engine was running and it was parked just about where Rivera had seen the vehicle pull over. Shining their lights on the Honda, the officers saw the driver try to hide himself by reclining his seat. Two people in the back seat suddenly popped into view and one of them started reaching underneath the car seat. This was defendant Saleem. Rivera ordered everyone to exit the Honda.

Saleem did not immediately respond and Rivera had to repeat his order four or five times. After he got out of the Honda, Saleem had to be told three or four more times to step onto the curb with his hands up. When Saleem began walking away from the officers, Rivera again ordered him to put his hands up and turn around. Saleem took five or six steps, then stopped and turned around. At that point, Rivera could see Saleem was wearing “a camouflage vest” similar to the “ballistic” or “bulletproof” vests Rivera had worn while he was deployed in Iraq with the Marines. Over the vest, Saleem was wearing an unbuttoned shirt.

As a matter of officer safety, Rivera immediately alerted his partner to Saleem’s vest. Both officers drew their guns, pointed them at Saleem, and ordered him to the ground. Saleem complied with this order only after it had been repeated two or three times. Finally, he got down on his knees and put his hands up. Rivera searched under the seat where he had seen Saleem reaching, but he did not find anything illegal. Saleem told the officers he was on parole for voluntary manslaughter.

2. Officer Rivera’s testimony about the vest.

Rivera testified Saleem’s vest weighed about 10 pounds. A label on the vest said “[b]ody armor, fragmentation protection vest for ground troops.” Behind the label was a pamphlet addressing “the use and care of body armor fragmentation protection vest, ground troops . . . .”

During his time in the military, Rivera had participated in the testing of flak jackets similar to Saleem’s body vest: “[T]he vest was placed on a dummy, and we were able to fire various types of rounds at [it], and we were also able to observe the different capabilities of the vest and what rounds it’s able to withstand.” Based on that experience, Rivera opined Saleem’s vest would protect against pistol rounds, such as .22, .38, .40 and .45 caliber, and 9-millimeter.

While the pamphlet inside the vest warned that it would not protect against small-arms fire, a police expert testified that the device would stop a .22-caliber bullet.

The court explained:

We already have concluded, ante, that neither prior certification of the body vest, nor prior testing, pursuant to the technical specifications contained in title 11 of the Code of Regulations, is an element of the criminal offense set forth in section 12370. However, as we explain, [*19] a necessary element of the offense is either actual knowledge of, or negligence with regard to, the facts making possession of a particular body vest illegal under the statute.

Section 12370 does not contain an explicit knowledge element. This does not mean the Legislature did not intend to require one, however. “As a general rule, no crime is committed unless there is a union of act and either wrongful intent or criminal negligence. This rule, which is ‘firmly embedded’ in ‘”the principles of Anglo-American criminal jurisprudence”‘, is so basic that wrongful intent or criminal negligence ‘is an invariable element of every crime unless excluded expressly or by necessary implication’ [citations], and ‘penal statutes will often be construed to contain such an element despite their failure expressly to state it’ [citations].” (People v. King (2006) 38 Cal.4th 617, 623-623.) Courts have been “justifiably reluctant” to construe offenses carrying substantial penalties as strict liability offenses where dispensing with mens rea would “require the defendant to have knowledge only of traditionally lawful conduct.” (In re Jorge M. (2000) 23 Cal.4th 866, 881.) “The prevailing trend in the law is against imposing criminal liability without proof of some mental state where the statute does not evidence the Legislature’s intent to impose strict liability.” (In re Jennings (2004) 34 Cal.4th 254, 267.) Indeed, “at least where the penalties imposed are substantial, section 20 4 can fairly be said to establish a presumption against criminal liability without mental fault or negligence, rebuttable only by compelling evidence of legislative intent to dispense with mens rea entirely.” (In re Jorge M., supra, at p. 879.)

Saleem has a previous manslaughter conviction and four other felonies on his record.

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