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Home  >  Topics  >  Legal

January 04, 2010
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Terrence P. Dwyer, Esq. Police Liability and Litigation
with Terrence P. Dwyer, Esq.

Attention California felons: Get your body armor while you can

Several years ago the California hip-hop group Cypress Hill had a smash hit with its song “Insane in the Brain.” Whether you know the full lyrics or not you would definitely recognize the rap’s steady chorus of “Insane in the membrane, insane in the brain.” I couldn’t help but think of those lyrics as I read the recent California Court of Appeals, 2nd District opinion in People v. Saleem. The Cypress Hill song extolled the virtues of urban quasi-gangster culture and mood altering substances and I had to wonder if there was a water pipe the California justices were sitting around when crafting this twisted opinion.

The “victim” in this legal saga is presumably Ethan Saleem, a convicted felon on parole for voluntary manslaughter, who was stopped by LAPD officers when observed acting suspiciously with others in a vehicle. Saleem was subsequently found to be wearing body armor. Saleem’s alleged victimization comes in the form of California Penal Code section 12370 which makes it a felony for a convicted felon to “purchase, own, or possess body armor as defined in section 942 of Title 11 of the California Code of Regulations.”

Because he was wearing body armor, Saleem was sentence to eight years in prison after a jury trial. But wait, the definition of body armor is too technical as contemplated by the statute, so how was a felon like Saleem to know the body armor he was wearing, which had the warning on its label that it was “[b]ody armor, fragmentation protection vest for ground troops” was in fact capable of stopping some of the rounds as provided in the certification requirements of section 942?

This is the dilemma that Saleem and other similarly situated California felons face who merely want to abide by the statute and wear only body armament not defined by the statute. Let’s be fair about this, Saleem, if we are to assume he read the label, was going on the premise it could only stop low velocity fragmentation rounds. So in a feat of sophistry the California Court of Appeals has ruled that section 12370 is void for vagueness.

What does it mean to be void for vagueness? Simply that the substantive due process requirements for the validity of any penal statute is that the wording be of such a nature as to provide fair notice to a person of reasonable intelligence of the conduct that is proscribed. We are to understand then, that poor Saleem may have been confused by all of this statutory language. Apparently the twelve jurors who listened to the evidence and rendered a verdict of guilty did not find the statute as dubious of meaning. Surely, as persons of reasonable intelligence these jurors had no difficulty in discerning the nature of the “vest” Saleem was wearing. But their opinion has been rendered moot by the California Court of Appeals and Ethan Saleem is remiss if he didn’t get the court’s majority a gift for the holidays.

If you are as outraged as I am at the ruling — which, by the way, has done little in the way of actually protecting an allegedly endangered constitutional right and has done more to endanger California officers and citizens — then you may want to read the full opinion1. It is more than two dozen pages long and strains statutory interpretation beyond the breaking point. At the core of the majority opinion is the knowledge requirement on the part of Saleem that the specific vest he was wearing fell within the technical definition of the statute. This legal element, known otherwise as “scienter,” is required in unison with an act to produce a legally culpable criminal result.

The basic legal equation is that the actus reus must be accompanied by a mens rea or culpable mental state. The majority opinion found the element of “knowledge” to be lacking. The court held that “the prosecution had to prove Saleem knew, or reasonably should have known, the body vest in his possession had characteristics making it illegal under section 12370.”2 Thus, the court reasoned the statute was void for vagueness “because its definition of body armor did not give him fair notice of the characteristics making his body vest illegal.”3 Under the Model Penal Code, the framework for most penal statutes in the U.S., a person acts “knowingly with respect to a material element of an offense when…the element involves the nature of his conduct…he is aware that his conduct is of that nature.”4

Generally, a defendant’s knowledge at the time of the offense may be inferred from the circumstances surrounding the crime the defendant is accused of and a prima facie case may be made. The jury may consider whether a reasonable person in the defendant’s situation at the time of offense would have had the requisite mental state. In Saleem’s case the jury had the following facts from which to consider:

1) Saleem was observed in the vehicle attempting to reach under the seat after being stopped by the police;
2) police had to repeat to Saleem four to five times to exit the vehicle;
3) after Saleem exited the vehicle he had to be told three to four more times to step onto the curb with hands raised;
4) Saleem began to walk away from the officers and had to be ordered to put his hands up and face the officers — he then took five to six steps then complied;
5) one of the officers noticed the heavy vest on Saleem, alerted his partner, they then drew their guns and ordered Saleem to the ground but had to repeat the order two to three times before Saleem complied;
6) Saleem, after complying, informed the officer’s he was on parole for voluntary manslaughter;
7) the vest Saleem was wearing was camouflaged and approximately ten pounds in weight.

It seems to me the jury reached a proper verdict after considering the evidence and the plain meaning of the statute. The lone dissenting opinion by Associate Justice Richard Aldrich supports the jury verdict and the practical understanding of the statute. Where Justice Aldrich’s colleagues go off into pretzel twisting legal analysis he proceeds in a lengthy twenty-one page dissent to argue logically and reasonably for the validity of the statute and the verdict. In what I perceive as a jab at the majority’s flawed opinion Justice Aldrich writes, “I do not believe the majority’s concern that felons will be unable to distinguish between permissible and impermissible body armor is warranted.”5 The dissent is everything the majority opinion is not — that is to say, the dissent is reasoned and correct.

So what is to be done by California officers from his point on? First, drop Associate Justice Aldrich a note of thanks for being the one rational voice on the 2nd District court. Second, write those California legislators en masse and urge them to re-draft the statute so it leaves no doubt as to what is meant by body armor and convicted felons like Saleem will no longer be left uninformed.


 

1The full opinion can be read here on PoliceOne or downloaded from the California Court of Appeals website (click Published Opinions).
2People v. Saleem, Cal. Ct. Apl., 2nd Dist., #B204646 (12/17/09) at pg. 15.
3Id. at 15.
4Model Penal Code section 2.02(2)(b)
5Saleem dissent at 10.


About the author

Terrence P. Dwyer retired in 2007 from the New York State Police after a 22-year career. He is now an Associate Professor in the Justice and Law Administration Department at Western Connecticut State University and an attorney in private practice representing law enforcement officers in discipline cases, critical incidents, and employment matters.

Contact Terry Dwyer





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