BODY ARMOR AND THE LAW:
A SURVEY OF CURRENT FEDERAL AND STATE
STATUTES
DREW A. SWANK *
On February 28, 1997, after robbing a Bank of America in North
Hollywood, California, Larry Phillips Jr. and Emil Matasareanu
engaged in a prolonged firefight with approximately 300 law
enforcement officers. Besides the horrific nature of the battle –
broadcast live on television – and the fact that for the most part the
bank robbers were better armed than the law enforcement officers
they were fighting, what made this crime notable was that the
perpetrators were wearing homemade body armor over almost, but
critically not all, of their bodies. When individuals are determined to
commit horrible crimes, many times they will wear ballistic
protection – body armor. Crimes committed by individuals like
Phillips and Matasareanu have led to efforts to restrict the sale,
possession, and use of body armor. This article examines those
various state and federal approaches criminalizing the use of body
armor. The irony, of course, is that in and of itself body armor is in
no way a weapon; its sole purpose is to prevent – not cause – injury.
This article, while approving of the consideration of using body
armor during a crime as an aggravating factor for sentencing
purposes, questions the logic and legality of some of the other
approaches criminalizing body armor use or possession.
TABLE OF CONTENTS
I.
II.
III.
IV.
V.
INTRODUCTION .......................................................................390
BODY ARMOR: AN EXTREMELY BRIEF OVERVIEW ................391
FEDERAL REGULATION OF BODY ARMOR ..............................393
CONSTITUTIONAL CHALLENGES TO BODY-ARMOR BANS AND
JUSTICE CLARENCE THOMAS ..................................................396
CHALLENGES BASED ON OTHER GROUNDS ............................401
* Drew A. Swank is a graduate of the Marshall-Wythe School of Law at the
College of William and Mary and a member of the Virginia Bar. The views
expressed in this Article do not reflect those of the Social Security Administration
or of the United States Government.
390
VI.
VII.
VIII.
IX.
X.
XI.
XII.
THOMAS M. COOLEY LAW REVIEW
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STATE LEGISLATION ...............................................................403
SENTENCE ENHANCEMENT .....................................................404
CRIMES UTILIZING BODY ARMOR ..........................................405
CONVICTED CRIMINALS IN POSSESSION OF BODY ARMOR .....408
STATE RESTRICTIONS APPLYING TO ALL INDIVIDUALS .........411
DEFINING BODY ARMOR ........................................................412
CONCLUSION ..........................................................................414
I. INTRODUCTION
Almost all articles about body armor, including law-review
articles, begin by describing instances of body-armor-clad criminals
fighting the police yet invulnerable to gunfire. 1 But those articles do
not mention the people in addition to criminals, police, and soldiers
who wear body armor—such as hunters, 2 gun-store 3 and
convenience-store 4 employees, and even school principals. 5 Body
armor is not a weapon in and of itself; it cannot hurt anyone. 6 Rather,
the purpose of body armor is to prevent injury. Nevertheless, at both
the state and federal levels, a variety of legislative measures have
banned and even criminalized the use of body armor—in some cases
merely for wearing it. 7 This Article examines legislation that affects
nonmilitary or law-enforcement procurement and use of body armor.
Beyond surveying federal and state laws that concern body armor,
this Article concludes by considering the motives and merits of these
laws.
1. See, e.g., Joseph Larkin, Offenses Against Public Order and Safety: Make
Wearing Bulletproof Vests During Commission or Attempted Commission of
Certain Offenses Unlawful, 20 GA. ST. U. L. REV. 95, 95 (2003); Scott Walker, No
Body Armor for Violent Felons: Chapter 21 Reinstates the James Guelff Act, 42
MCGEORGE L. REV. 650, 650–51 (2010–2011).
2. United States v. Patton, 451 F.3d 615, 627 (10th Cir. 2006).
3. David B. Kopel, Guns, Gangs, and Preschools: Moving Beyond
Conventional Solutions to Confront Juvenile Violence, 1 BARRY L. REV. 63, 97
(2000).
4. Jeffrey P. Doss, A Structural Criticism of the DNA Analysis Backlog
Elimination Act, 39 CUMB. L. REV. 511, 554 (2008–2009).
5. Carol Innerst, Pistol-Packing Kids Put Schools on Alert—School Officials
Find More Students Armed, WASH. TIMES, Aug. 23, 1992, at A1.
6. See Larkin, supra note 1, at 96.
7. See 42 U.S.C. § 3796ll-3 (2006); VA. CODE ANN. § 18.2-287.2 (2012);
Kopel, supra note 3, at 97.
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II. BODY ARMOR: AN EXTREMELY BRIEF OVERVIEW
Throughout history, humans have sought better ways to kill each
other through the development of weapons and tactics. They have
also sought ways to prevent that killing from happening. Various
materials have been used over the years to protect individuals from
injury, 8 but as the protection offered by armor increased, so did the
weight. A quest began, first for the military and then for civilian
applications, to find body armor that could provide sufficient
protection without the additional weight. 9
While attempts to make lightweight, flexible body armor go back
hundreds of years, 10 the creation of Kevlar by DuPont scientists in
1965 made it a practical reality. 11 Kevlar is a lightweight, highstrength polyamide fiber that is five times stronger than its equivalent
weight in steel. 12 Most body armor sold to military, law-enforcement,
and civilian consumers takes the form of Kevlar vests (sometimes
with additional ceramic or metal plates) designed to protect the vital
organs of the chest and abdomen from projectiles (e.g., bullets,
shrapnel, etc.) and piercing or penetrating weapons (e.g., knives). 13
Manufacturers have also started to create articles of clothing that
8. See
generally
Body
Armor
History,
GLOBALSECURITY.ORG,
http://www.globalsecurity.org/military/systems/ground/body-armor2.htm
(last visited Jan 16, 2012) (providing a general history of body armor).
9. Id.
10. Bruce P. Smith, The Emergence of Public Prosecution in London, 1790–
1850, 18 YALE J.L. & HUMAN. 29, 34 n.25 (2006) (discussing a primitive body
armor that was a bale of wool worn to deflect musket shots);
GLOBALSECURITY.ORG, supra note 8 (discussing the use of flexible materials such
as silk, nylon, and fiberglass in early forms of body armor).
11. DuPont Chemist Among Safety Heroes, DUPONT (July 20, 2011),
http://www2.dupont.com/Media_Center/en_US/daily_news/july/article20110720a.
html.
12. Inventor of Kevlar to Be Inducted into National Women's Hall of Fame
Saturday, DUPONT (Oct. 2, 2003), http://www2.dupont.com/Media_Center/en_US/
news_releases/2003/nr10_02_03a.html; Mary Bellis, Kevlar—Stephanie Kwolek,
ABOUT.COM, http://inventors.about.com/library/inventors/blkevlar.htm (last visited
Jan. 15, 2012).
13. See Joel Baglole, Ballistic Vests—Protecting Soldiers in Combat,
ABOUT.COM, http://usmilitary.about.com/od/armyweapons/a/armyvest.htm (last
visited Jan. 13, 2012); Bulletproof Vest, ENOTES.COM, http://www.enotes.com/
bulletproof-vest-reference/bulletproof-vest (last visited Jan 13, 2012).
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incorporate Kevlar panels to provide ballistic protection. 14 From tshirts to haute couture and from children’s backpacks to day
planners, ballistic protection has become available to the masses. 15
While body armor does not render an individual invulnerable to
gunfire, 16 its effectiveness is amply supported by the statistics
involving police officers shot in the line of duty. Since 1987, over
3,000 law-enforcement officers have survived being shot or stabbed
while wearing body armor. 17 Since 1980, of the 1,500 officers killed
in the line of duty it is estimated that more than 30% would have
been saved had they been wearing body armor. 18 The risk of an
officer dying from gunfire is reduced by fourteen times if he or she is
wearing body armor. 19 However, body armor is not foolproof.
Between 1985 and 1994, 32% of all police officers killed in the line
of duty by gunfire wore body armor. 20 It is exactly because of body
armor’s general effectiveness that lawmakers have sought to regulate
it and to ensure that criminals are not given the protection that it
offers. 21 These efforts have been enacted at both the federal and state
levels and range from restrictions on how body armor may be
14. See Sporting Goods Apparel and Accessories Made To Win, DUPONT,
http://www2.dupont.com/personal-protection/en-us/dpt/ua/sporting-goods-apparelaccessories.html (last visited Jan. 15, 2012).
15. See Trish Crawford, Bulletproof Backpacks for Kids, THESTAR.COM (Nov.
15, 2007), http://www.thestar.com/article/276474; Ruth La Ferla, A Look That’s
Jan.
20,
2010,
http://www.nytimes.com
Bulletproof,
N.Y. TIMES,
/2010/01/21/fashion/21BULLET.html?_r=1.
16. See David B. Kopel, Pretend “Gun-Free” School Zones: A Deadly Legal
Fiction, 42 CONN. L. REV. 515, 563 (2009) (discussing body armor’s limitations).
See generally Susan Lindee, Experimental Wounds: Science and Violence in MidCentury America, 39 J.L. MED. & ETHICS 8, 20 n.26 (2011) (discussing body
armor’s combat effectiveness); Jesse Matthew Ruhl et al., Gun Control: Targeting
Rationality in a Loaded Debate, 13 KAN. J.L. & PUB. POL’Y 413, 423 (2003–2004)
(noting that rifle bullets can penetrate most forms of body armor).
17. “Survivors’ Club” Salutes 3,000th Law Enforcement Officer Saved by a
Protective Vest, DUPONT (Mar. 7, 2006), http://www2.dupont.com
/Media_Center/en_US/news_releases/2006/article20060307b.html.
18. 42 U.S.C. § 3796ll-3(b)(5) (2006).
19. Id.; see also Keith Alan Byers, No One Is Above the Law When It Comes to
the ADA and the Rehabilitation Act—Not Even Federal, State, or Local Law
Enforcement Agencies, 30 LOY. L.A. L. REV. 977, 1026, & n.215 (1997) (citations
omitted).
20. Byers, supra note 19, at 1027.
21. See United States v. Alderman, 565 F.3d 641, 644–45 (9th Cir. 2009).
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BODY ARMOR AND THE LAW
393
purchased to criminal penalties for possessing it or using it in a
crime. 22
III. FEDERAL REGULATION OF BODY ARMOR
Specifically, Congress has regulated body armor in two ways.
Title 42, Section 3796ll-3 of the U.S. Code provides for a criminalsentence enhancement if body armor is used in the commission of a
federal crime of violence or federal drug-trafficking crime. 23 “There
is no requirement that the defendant actually wear the body armor;
simple ‘use”’ includes using the body armor in barter or payment for
other things. 24 A crime of violence is defined as:
(a) an offense that has as an element the use,
attempted use, or threatened use of physical force
against the person or property of another, or
(b) any other offense that is a felony and that, by its
nature, involves a substantial risk that physical force
against the person or property of another may be used
in the course of committing the offense. 25
Body armor is defined as: “any product sold or offered for sale, in
interstate or foreign commerce, as personal protective body covering
intended to protect against gunfire, regardless of whether the product
is to be worn alone or is sold as a complement to another product or
garment.” 26 The intent of the statute is to increase the sentence by at
least two levels under the Federal Sentencing Guidelines for violent
22. Id.; see also infra notes 104–06 and accompanying text.
23. 42 U.S.C. § 3796ll-3(d)(1); see Mary Price, Firearms Offenses: Model
Sentencing Guidelines § 2F1, 18 FED. SENT’G REP. 346, 348 (June 2006); see also
Frank O. Bowman, III, Sentencing Factors Applicable to All Offense Types: Model
Sentencing Guidelines §§ 3.1–3.6, 18 FED. SENT’G REP. 364, 368 (June 2006);
CARMEN D. HERNANDEZ, AMENDMENTS TO THE UNITED STATES SENTENCING
GUIDELINES 15–16 (2003). See Valerie S. Roddy, Note, The Domestic Dog’s
Foreign Tail: Foreign Relevant Conduct Under the Federal Sentencing Guidelines,
79 N.Y.U. L. REV. 1500, 1506 (2004).
24. Kopel, supra note 3, at 98 & n.188.
25. 18 U.S.C. § 16 (a)–(b).
26. 42 U.S.C. § 3796ll-3(c)(1).
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or drug-trafficking crimes in which body armor was used. 27
However, it is important to note that possession of body armor by an
individual who is convicted of a federal crime may be used as a
sentence enhancement regardless of whether the body armor is the
subject of a criminal charge or part of a conviction. 28 Even if a
charge of improperly possessing body armor 29 is dismissed, the
possession of body armor may still be used as a sentence
enhancement on a different charge. 30
The second, and by far the more controversial statute, is Title 18,
Section 931 of the U.S. Code. It provides that it is “unlawful for a
person to purchase, own, or possess body armor, if that person has
been convicted of a felony that is” a crime of violence, as defined by
either 18 U.S.C. § 16 or state law. 31 Further, it provides an
affirmative defense if the body armor is work related—provided that
the accused has prior, written certification from his or her
employer—that the body armor is “necessary for the safe
performance of lawful business activity,” and that the use or
possession of the body armor is “limited to the course of such
performance.” 32 The written certification must come from the
individual’s supervisor, or from any other employee of the business if
there is no supervisor. 33 The definition of body armor is the same as
used in 42 U.S.C. § 3796ll-3 and is specifically restricted to body
armor that is sold or offered to be sold in interstate or foreign
commerce. 34 In an 18 U.S.C. § 931 prosecution, the government must
prove that the body armor had been “sold or offered for sale, in
interstate or foreign commerce.” 35 For example, in United States v.
27. 42 U.S.C. § 3796ll-3(d)(2). For a discussion of the federal sentencing
guidelines, see U.S. SENTENCING GUIDELINES MANUAL (2010 & Supp. 2010),
available at http://www.ussc.gov/Guidelines/2010_guidelines/ToC_PDF.cfm.
28. United States v. Mayo, 425 F. App’x 162, 163 (3d Cir. 2011).
29. 18 U.S.C. § 931.
30. Mayo, 425 F. App’x at 162–63.
31. 18 U.S.C. § 931; see supra note 25 and accompanying text.
32. 18 U.S.C. § 931(b)(1).
33. 18 U.S.C. § 931(b)(2).
34. 18 U.S.C. § 921(a)(35).
35. United States v. Marler, 402 F. Supp. 2d 852 (N.D. Ohio 2005); See United
States v. Mora, 127 F. App’x 343, 344 (9th Cir. 2005) (“No rational juror could
find, based on the evidence the government presented at trial, that the body armor
had been offered for sale in interstate commerce.”).
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BODY ARMOR AND THE LAW
395
Harkness, 36 the government presented evidence at trial that “the yarn
of Harkness’s vest was made in Virginia, woven into fabric in South
Carolina, woven into a vest in Florida, and then shipped to a
distributor in New Jersey. The vest was thereafter sold by the New
Jersey distributor and ended up in Harkness’s hands in Florida.” 37
The punishment for violating the statute is a maximum three-year
prison sentence. 38
In addition to constitutional challenges, 39 most litigation of title
18, Section 931 of the U.S. Code involves defining statutory concepts
such as “crime of violence” and “possession.” 40 The trend
demonstrated in this litigation is that courts are reading the statute’s
requirements very broadly. For example, in United States v. Moses,
to determine if the “crime of violence” provision required by 18
U.S.C. § 931(a) was met, the court found that it was only necessary
to examine “the elements and the nature of the offense of conviction,
rather than to examine the particular facts relating to [the
defendant’s] crime.” 41 Likewise, in United States v. Stout, the court
stated that for an offense to be a “crime of violence,” it must mean
physical force or risk of physical force to a person or property and
not necessarily an injury or risk of injury. 42 “Possession” has also
been broadly interpreted. 43 Mere possession of body armor—either
real or constructive—that at some point entered the stream of
interstate commerce violates the statute. 44 Possession is not limited to
36. 305 F. App’x 578 (11th Cir. 2008).
37. Id. at 582.
38. 18 U.S.C. § 924(a)(7).
39. See infra Part IV.
40. See, e.g., United States v. Johnson, 290 F. App’x 214, 227 (11th Cir. 2008)
(per curiam), cert. denied, 555 U.S. 977 (2008) (finding that control over the
premises where body armor was found was sufficient evidence of “possession”);
United States v. Rosa, 507 F.3d 142, 153–54 (2d Cir. 2007) (finding that the
defendant’s robbery conviction, without further details of the crime, was
insufficient to establish a prior conviction for a “crime of violence”).
41. No. 05-CR-200, 2005 WL 3454317, at *4 (E.D. Wis. Dec. 16, 2005)
(alterations in original) (quoting Leocal v. Ashcroft, 543 U.S. 1, 2 (2004); see also
United States v. Shelton, 279 F. Supp. 2d 1054, 1055 (E.D. Mo. 2003) (examining
prior state convictions to determine whether they fell within the purview of 18
U.S.C. § 16).
42. No. 09-147-S-KKC, 2010 WL 2228351, at *3 (E.D. Ky. June 3, 2010).
43. See Johnson, 290 F. App’x at 227.
44. See United States v. Patton, 451 F.3d 615, 635 (10th Cir. 2006).
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THOMAS M. COOLEY LAW REVIEW
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wearing the body armor; the presence of body armor at one’s
residence is sufficient. 45 However, the statute is controversial
because of its reliance on the Commerce Clause of the United States
Constitution. 46
IV. CONSTITUTIONAL CHALLENGES TO BODY-ARMOR BANS AND
JUSTICE CLARENCE THOMAS
Because “the Constitution does not grant the federal government
a police power or a general authority to combat violent crime,” 47
Title18, Section 931 of the U.S. Code has been challenged on the
grounds that it exceeds Congress’s authority under the Constitution’s
Commerce Clause. 48 The Commerce Clause states that Congress
shall have the power “[t]o regulate Commerce with foreign Nations,
and among the several States, and with the Indian Tribes.” 49 Most
Commerce Clause challenges allege that § 931 either lacks the
requirement that it is limited to body armor in interstate commerce,
or that it fails to fall into the three areas of interstate commerce that
Congress may legitimately regulate per the United States Supreme
Court’s 1995 decision in United States v. Lopez. 50 In Lopez, the
Supreme Court examined the Gun-Free School Zones Act of 1990
(Act), which made it a federal crime to possess a firearm in a school
zone. 51 The Act neither regulated a commercial activity nor
contained a requirement that the firearm be connected in any way to
interstate commerce; 52 the Court held that the statute exceeded
Congress’s authority under the Commerce Clause. 53 In its analysis,
the Court stated that there are three general categories of regulation
that Congress is authorized to engage under its commerce power. 54
45. Johnson, 290 F. App’x at 227.
46. U.S. CONST. art. I, § 8, cl. 3.
47. Patton, 451 F.3d at 618.
48. See generally Christine L. Hogan, Note, Touring Commerce Clause
Jurisprudence: The Constitutionality of Prosecuting Non-Commercial Sexually
Illicit Acts Under 18 U.S.C. § 2423(C), 81 ST. JOHN’S L. REV. 641, 643 n.8 (2007).
49. U.S. CONST. art. I, § 8, cl. 3.
50. 514 U.S. 549, 558–59 (1995).
51. 18 U.S.C. § 922(q)(1)(A) (2006); Lopez, 514 U.S. at 551.
52. Lopez, 514 U.S. at 551.
53. Id.
54. Id. at 558.
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These three categories are (1) the channels of interstate commerce;
(2) “the instrumentalities of interstate commerce, or persons or things
in interstate commerce”; and (3) “activities that substantially affect
interstate commerce.” 55
The first reported case to determine if 18 U.S.C. § 931 exceeded
Congress’s authority under the Commerce Clause was United States
v. Kitsch. 56 The trial court upheld the statute because its definition of
body armor was specifically limited to that which had been involved
in interstate or foreign commerce and, therefore, was within
Congress’s power to regulate under the Commerce Clause. 57 The trial
court did note, however, that “mere inclusion of a jurisdictional
element in a statute”—such as reciting that it is applicable to only
items involved in interstate commerce—“will not necessarily make
all applications of that statute constitutional.” 58 Congress merely
declaring that conduct has an effect on interstate commerce will not
insulate a statute from substantive review. 59
Also, in United States v. Marler, the defendant challenged the
statute on the grounds that it lacked the requisite nexus with interstate
commerce to be enacted under Congress’s Commerce Clause
power. 60 Not only did the court disagree and find that the statute had
the necessary jurisdictional element, but the court further explained
how prohibiting a felon from purchasing or possessing body armor
affected interstate commerce. 61 The court found that with § 931’s
prohibition, Congress reduced the potential market of who could buy
body armor, and with the reduced market, there was a corresponding
reduction in shipping and transportation of body armor across state
lines. 62
Likewise, in United States v. Harkness, the court decided that it
was unnecessary for the regulation provided by 18 U.S.C. § 931 to fit
55. Id. at 558, 559.
56. 307 F. Supp. 2d 657 (E.D. Pa. 2004).
57. Id. at 659–61.
58. Id. at 661; see also United States v. Patton, 451 F.3d 615, 632 (10th Cir.
2006).
59. Kitsch, 307 F. Supp. 2d at 661; see also Patton, 451 F.3d at 632.
60. 402 F. Supp. 2d 852, 853 (N.D. Ohio 2005).
61. Id. at 854.
62. Id. (“[P]rohibiting possession by felons limits the market for body armor,
and discourages shipping, transporting, and receiving body armor in or from
interstate commerce.”).
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THOMAS M. COOLEY LAW REVIEW
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into any of the Lopez categories because the statute had “an express
jurisdictional element” that immunized it from a facial constitutional
attack. 63 Due to the statute’s jurisdictional element, the court found
that § 931 was a constitutional use of Congress’s Commerce Clause
power. 64 Another significant case that considered the
constitutionality of § 931 was United States v. Alderman. 65 As others
had held before it, the court in Alderman found that § 931 contained a
sufficient “jurisdictional hook” that limited the statute to body armor
that had been ‘“sold or offered for sale’ in interstate [or foreign]
commerce” to make the statute a permissible enactment of
Congress’s Commerce Clause power. 66
One of the most important cases to examine the constitutionality
of 18 U.S.C. § 931 was United States v. Patton. 67 The court found
that the body armor’s only connection to interstate commerce was
that it was manufactured in a different state than the one where the
felon possessed it. 68 The court noted that Congress had not opted to
make the manufacture, distribution, sale, possession, or use of body
armor illegal, but instead only targeted possession of it by a specific
group of people. 69 Furthermore, the court stated that mere possession
alone is not an economic activity. 70 The court opined that 18 U.S.C. §
931(a)(1) does not fall within any of the three regulatory categories
in which Congress is authorized to engage under the authority of the
Commerce Clause. 71 Further, the court held that the statute’s
63. 305 F. App’x 578, 582 (11th Cir. 2008).
64. Id. at 582–83.
65. 565 F.3d 641, 643 (9th Cir. 2009).
66. Id.; see Richard A. Gambale, Ninth Circuit Upholds Constitutionality of
Felon-in-Possession of Body Armor Statute with De Minimus Jurisdictional
Element—United States v. Alderman, 565 F.3d 641 (9th Cir. 2009), reh’g en banc
denied, 593 F.3d 1141 (9th Cir. 2010), 43 SUFFOLK U. L. REV. 749, 756 (2010).
67. 451 F.3d 615 (10th Cir. 2006); see Doss, supra note 4 at 554.
68. Patton, 451 F.3d at 620.
69. See id. at 630–31; see also Joseph Luppino-Esposito, Comment, Four Shots
at the Commerce Clause: The Firearms Freedom Act and the Unarticulated
Products Category of the Commerce Power, 7 SETON HALL CIR. REV. 229, 254
(2010); Doss, supra note 4, at 554-55.
70. Patton, 451 F.3d at 625.
71. Id.
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BODY ARMOR AND THE LAW
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jurisdictional element does not, by itself, demonstrate that the
activities regulated therein substantially affect interstate commerce. 72
The court nevertheless found that the statute was permissible
under the 1977 Supreme Court ruling in Scarborough v. United
States. 73 In Scarborough, the Court decided a question of statutory
interpretation regarding a prohibition on felons possessing firearms
that moved through the channels of interstate commerce. 74 The Court
“assumed that Congress could constitutionally regulate the
possession of firearms solely because they had previously moved
across state lines,” but it did not examine that assumption any
further. 75 In Patton, the court used this decision as grounds to uphold
a similar prohibition on felons possessing body armor that had been
in the channels of interstate commerce as provided by 18 U.S.C. §
931. 76 Because the body armor in question moved across state lines,
Congress could regulate it under Scarborough. 77 However, even the
court itself questioned the validity of its decision. 78
Each court that has reviewed the constitutionality of 18 U.S.C. §
931 upheld it on one ground or another, as long as the body armor
was involved in interstate commerce. 79 “Homemade body armor or
body armor produced [and obtained] intrastate would not be caught
within the sweep of the statute.” 80 There have been criticisms of the
72. Id. at 620; United States v. Harkness, 305 F. App’x 578, 582–83 (M.D. Fla.
2007); see also Haynie v. United States, No. CR 08-00280 SBA, 2009 WL 152466
(N.D. Cal. Jan. 22, 2009); Ilya Somin, Gonzales v. Raich: Federalism as a
Casualty of the War on Drugs, 15 CORNELL J.L. & PUB. POL’Y 507, 524 (2006).
73. Patton, 451 F.3d at 634 (citing Scarborough v. United States, 431 U.S. 563,
575 (1977); see Robin Morse, Federalism Challenges to the Adam Walsh Act, 89
B.U. L. REV. 1753, 1782–83 (2009) (discussing the jurisdictional element and
reliance upon Scarborough to uphold 18 U.S.C. § 931).
74. Patton, 451 F.3d at 634; see Gambale, supra note 65, at 751.
75. Patton, 451 F.3d at 634; see Gambale, supra note 65, at 751.
76. Patton, 451 F.3d at 634, 635–36; see Haynie, 2009 WL 152466, at *2; see
also Anthony J. Colangelo, The Foreign Commerce Clause, 96 VA. L. REV. 949,
956 n.36 (2010) (citing Patton, 451 F.3d at 634–36 (discussing the requirement for
body armor to travel in interstate commerce to be regulated by Congress under the
Commerce Clause)).
77. Patton, 451 F.3d at 635.
78. Luppino-Esposito, supra note 68, at 249–51.
79. Gambale, supra note 65, at 753–54.
80. Patton, 451 F.3d at 630; United States v. Alderman, 565 F.3d 641, 647 (9th
Cir. 2009).
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statute, as shown by the decision in Patton. But for the court’s ability
to rely on Scarborough, the court in Patton would probably have
found that the statute exceeded Congress’s Commerce Clause
authority.
Justice Clarence Thomas has been one of the most vocal critics of
courts upholding 18 U.S.C. § 931 through the use of the Commerce
Clause. When the Court denied the writ of certiorari to hear the
Alderman case, Justice Thomas argued for it to be heard in his
dissent. 81 He began with the unassailable position that the
Constitution limits the extent of federal power—there are basic
boundaries as to what the federal government may do. 82 For instance,
the Constitution withheld from the federal government a “plenary
police power.” 83 But over the decades, the courts have allowed
Congress’s use of the Commerce Clause to exercise a police power
that the Constitution reserved for the states. 84
Nowhere is this more clear, Justice Thomas argued, than with the
decisions of the Ninth Circuit in Alderman and the Tenth Circuit in
Patton that upheld the impermissible extension of federal police
power found in 18 U.S.C. § 931. 85 Both circuits upheld the statute by
improperly relying on Scarborough 86 instead of analyzing it under
the more recent Lopez. 87 In Scarborough, the Court examined a
statute that made it a crime for a convicted felon to receive, possess,
or transport a firearm that had been involved in interstate
commerce. 88 The question presented to the Court was not about the
81. Alderman v. United States, 131 S. Ct. 700, 700–01 (2011) (Thomas, J.
dissenting).
82. Id. at 701; see Gambale, supra note 65, at 756.
83. Alderman, 131 S. Ct. at 701 (citing United States v. Lopez, 514 U.S. 549,
566 (1995)).
84. Id.; see Jeffrey A. Meyer, Dual Illegality and Geoambiguous Law: A New
Rule for Extraterritorial Application of U.S. Law, 95 MINN. L. REV. 110, 154–56
(2010) (“[T]he courts almost always validate Congress’s regulatory authority, often
on the basis of preposterously attenuated claims that any given activity occasions a
‘substantial effect’ on commerce.”); see also Alderman v. United States, 593 F.3d
1141, 1143 (2010) (O’Scannlain, J. dissenting) (dissenting to the denial of the
petition for a panel rehearing and rehearing en banc).
85. Alderman, 131 S. Ct. at 701–02.
86. Scarborough v. United States, 431 U.S. 563 (1977).
87. Lopez, 514 U.S. at 566.
88. Scarborough, 431 U.S. at 564.
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constitutionality of the statute, but whether the fact that a firearm had
once traveled in the channels of interstate commerce was sufficient to
establish a nexus between the possession of the firearm and interstate
commerce. 89 The Court held that it was. 90
The problem with relying on Scarborough, besides the fact that
the Court did not examine the underlying constitutionality of the
statute, is that it cannot be reconciled with the Court’s later
Commerce Clause decision in Lopez. 91 As Justice Thomas wrote, “It
is difficult to imagine a better case for certiorari.” 92 The circuits’
interpretations of Scarborough, “could very well remove any limit on
the commerce power. The Ninth Circuit’s interpretation of
Scarborough seems to permit Congress to regulate or ban possession
of any item that has ever been offered for sale or crossed state lines”
to the point that it would allow Congress to “ban possession of french
fries that have been offered for sale in interstate commerce.” 93 Justice
Thomas pointed out that the Patton court even admitted that 18
U.S.C. § 931 fails to fit within any of the Lopez categories for the
permissible use of the Commerce Clause as a basis for federal
regulation. 94 But for the flawed interpretation of Scarborough, he
noted that 18 U.S.C. § 931 would be unconstitutional. 95
V. CHALLENGES BASED ON OTHER GROUNDS
While most challenges to 18 U.S.C. § 931 focus on it exceeding
Congress’s authority under the Commerce Clause, it has been
unsuccessfully challenged in other ways. In United States v. Marler,
the defendant claimed, among other things, that § 931 was
unconstitutionally vague. 96 The defendant argued that the statutory
89. Alderman, 131 S. Ct. at 701–02 (citing Scarborough, 431 U.S. at 564); see
United States v. Patton, 451 F.3d 615, 634 (10th Cir. 2006).
90. Alderman, 131 S. Ct. at 701–02 (citing Scarborough, 431 U.S. at 578).
91. Id. at 702; see also United States v. Alderman, 593 F.3d 1141, 1142 (9th
Cir. 2010) (O’Scannlain, J. dissenting) (dissenting to the denial of the petition for a
panel rehearing and rehearing en banc); Luppino-Esposito, supra note 68, at 254–
55.
92. Alderman, 131 S. Ct. at 702.
93. Id. at 702–03.
94. Id.; see United States v. Patton, 451 F.3d 615, 634 (10th Cir. 2006).
95. Alderman, 131 S. Ct. at 702; see Patton, 451 F.3d at 634.
96. 402 F. Supp. 2d 852, 855 (N.D. Ohio 2005).
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definition of body armor failed “to provide the public with fair notice
or warning of statutory prohibitions so that they may act in a lawful
manner. An ordinary citizen simply cannot anticipate what will be
considered body armor under the statute’s definition of body
armor.” 97 The court ruled that for the defendant to prevail on his nonFirst Amendment vagueness attack, he would have to “establish that
‘the statute [was] vague as applied to his particular case, not merely
that the statute could be construed as vague in some hypothetical
situation.” 98 The court ruled that the defendant knew that he was in
possession of body armor and that his vagueness challenge, based on
the facts of the particular case failed because the body armor worn by
the defendant was a vest, which weighed four pounds, and was
labeled “American Body Armor.” 99 The defendant took the body
armor from a police-department vehicle and was wearing it under his
shirt at the time of arrest. 100
State statutes that regulate body armor have also been attacked (in
one case successfully) on vagueness grounds. An earlier version of
California’s statute prohibiting convicted felons from possessing
body armor was struck down on vagueness grounds because its
definition of body armor would require testing by an expert to
determine what was or was not body armor, and it would not put the
average person on notice of what was prohibited. 101 Fair notice
required “that a penal statute define the criminal offense with
sufficient definiteness that ordinary people can understand what
conduct is prohibited.” 102
Another challenge raised against 18 U.S.C. § 931 is that it
violates the right to keep and bear arms under the Second
Amendment of the Constitution. 103 The district courts that have
97. Id. (quoting Defendant’s Motion at 14, Marler, 402 F. Supp. 2d 852.
98. Id. (quoting United States v. Krumrei, 258 F.3d 535, 537 (2d. Cir. 2001)).
99. Id.
100. Id.
101. Robert Batey, The Vagueness Doctrine in the Roberts Court: Constitutional
Orphan, 80 UMKC L. REV. 113, 132 & n.160 (2011); see also Walker, supra note
1, at 651, 652–53.
102. Walker, supra note 1, at 652 (quoting California v. Saleem, 102 Cal. Rptr.
3d 652, 660 (Ct. App. 2009)).
103. David B. Kopel, The Second Amendment in the Nineteenth Century, 1998
BYU L. REV. 1359, 1534 (1998) (discussing the possibility that the Second
Amendment’s right to bear arms includes the right to wear body armor); Eugene
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encountered this argument have routinely rejected it. In United States
v. Bonner, the court relied upon the decision in United States v.
Heller, 104 which specified that there may be prohibitions on the right
to bear arms—including prohibitions on felons possessing
firearms. 105 Prohibiting felons from possessing firearms does not
violate the Second Amendment; by extension, it is not violated by
prohibiting felons from possessing body armor. 106 The district court
in United States v. Smith, found that “arms” referenced in the Second
Amendment protects both weapons of offense and armor of defense
(such as body armor). 107
VI. STATE LEGISLATION
While a number of states do not regulate body armor, 108 a
majority do. In many states, as with the federal government, the use
of body armor in the commission of a crime may result in sentence
enhancement. 109 Also like the federal government, some states
Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense: An
Analytical Framework and a Research Agenda, 56 UCLA L. REV. 1443, 1476
n.132 (2009) (citing District of Columbia v. Heller, 554 U.S. 570, 581 (2008));
Walker, supra note 1, at 654 n.58. But see Eugene Volokh, State Constitutional
Rights of Self-Defense and Defense of Property, 11 TEX. REV. L. & POL. 399, 414
n.58 (2007) (citing Walker v. State, 222 S.W.3d 707, 711 (Tex. App. 2007)
(rejecting a Second Amendment challenge to body-armor bans)).
104. No. CR 08-00389 SBA, 2008 WL 4369316, at *3 (N.D. Cal. Sept. 23,
2008).
105. 554 U.S. 570, 626–27 (2008); see Nicole Price, Casenote, District of
Columbia v. Heller: Firing Blanks?, 60 MERCER L. REV. 1437, 1460 n.192 (2009)
(discussing Bonner as an example of a court declining to extend the Heller
decision).
106. Bonner, 2008 WL 4369316, at *4.
107. No. 09-20070, 2009 WL 3241992, at *1 (E.D. Mich. Oct. 8, 2009).
108. The following states do not have a body-armor statute: Alabama, Alaska,
Colorado, Hawaii, Idaho, Iowa, Kansas, Maine, Minnesota, Mississippi, Missouri,
Montana, Nebraska, New Mexico, Nevada, North Dakota, Rhode Island, South
Dakota, Vermont, Washington, and Wyoming.
109. See 42 U.S.C. § 3796ll-3 (2006); CAL. PENAL CODE § 12022.2(b) (West
2012); 720 ILL. COMP. STAT. 5 / F-2 to F-3 (2012); KY. REV. STAT. ANN. §
533.065 (West 2012); N.C. GEN. STAT. § 15A-1340.16C (2012); OHIO REV. CODE
ANN. § 2929.14(B)(1)(d) (West 2012); UTAH CODE ANN. § 76-3-203.7(2) (West
2012).
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prohibit felons from possessing body armor. 110 Other states, however,
make the use of body armor in the commission of a crime illegal. 111
One state further regulates the manner in which body armor may be
sold. 112 The types of statutes vary widely from state to state, as does
the basic definition of body armor.
VII. SENTENCE ENHANCEMENT
Enhancing criminal sentences due to the use of body armor in the
commission of a crime varies from state to state. Ohio adds two years
to the sentence to be served consecutively after the original sentence
for using body armor during the commission of an offense, which is
not subject to reduction. 113 California adds one, two, or five years to
a sentence if the individual wears body armor while committing or
attempting to commit a felony. 114 Like in Ohio, this sentence is to be
served consecutively, with the court adding the middle penalty of two
years unless there are aggravating or mitigating circumstances that
warrant the greater or lesser sentence. 115 Utah adds additional time to
a sentence depending on the severity of certain underlying
offenses. 116 On the other hand, North Carolina increases the level of
the felony by one class if the individual was in possession of body
armor when the crime was committed. 117 In Arizona, unlike the states
where the use of body armor adds to the length of a sentence, it is
merely an aggravating factor for the court to consider when
punishing the underlying offense. 118 Kentucky, however, neither adds
110. CAL. PENAL CODE § 31360(a); MD. CODE ANN., CRIM. LAW § 4-107(a)
(West 2012); MICH. COMP. LAWS § 750.227g(1) (2012); OR. REV. STAT.
§166.642(1) (2011); TEX. PENAL CODE ANN. § 46.041(b) (West 2012).
111. See United States v. Patton, 451 F.3d 615, 631 n.7 (10th Cir. 2006)
(identifying the states that impose statutory criminal penalties for body-armor
possession and/or use).
112. CONN. GEN. STAT. § 53-341b (2012).
113. OHIO REV. CODE ANN. § 2929.14(D)(1)(d).
114. CAL. PENAL CODE § 12022.2.
115. Id.
116. UTAH CODE ANN. § 76-3-203.7 (West 2012).
117. N.C. GEN. STAT. § 15A-1340.16C (2011); see Michael Patrick Burke,
Structured Sentencing and the Puzzling Statutory Maximum Punishment:
Apprendi’s Impact on North Carolina Sentencing Law, 80 N.C. L. REV. 1033,
1038, 1048–49 (2002).
118. ARIZ. REV. STAT. ANN. § 13-701(D)(12) (2012) (repealed 2012).
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to nor considers the involvement of body armor in a crime as an
aggravating factor for sentencing. 119 Instead of increasing a sentence,
the individual becomes ineligible for any sort of early release,
probation, or parole and must serve the entire sentence for felonies
that involve body armor and deadly weapons. 120
VIII. CRIMES UTILIZING BODY ARMOR
Unlike the federal government, a number of states criminalize the
use of body armor during the commission of a crime. These statutes
can be separated into different categories depending on: (1) the type
of crime in which the body armor was used; (2) whether the
individual had a weapon; and (3) whether the individual wore the
body armor or if it merely possessed it. Statutes in the first category
range from any crime to specifically enumerated crimes. In Illinois,
knowingly using body armor with a weapon in any crime is a
criminal offense; 121 whereas in Oregon, the crime must be a “violent”
crime (either misdemeanor or felony). 122 Most states, however,
require the crime to be either a felony 123 or a “violent” felony. 124 The
last group of states— Florida, Georgia Louisiana, Maryland, New
Jersey, South Carolina, Tennessee, and Virginia—criminalize the use
of body armor while committing certain enumerated offenses such as
drug trafficking, murder, manslaughter, robbery, sexual assault,
burglary, kidnapping, criminal escape, or assault. 125
119. KY. REV. STAT. ANN. § 533.065 (West 2012).
120. Id.
121. 720 ILL. COMP. STAT. 5 / 33F-1 (2012).
122. OR. REV. STAT. § 166.643 (2011).
123. ARIZ. REV. STAT. ANN. § 13-3116(A); DEL. CODE ANN. tit. 11, § 1449
(2011); IND. CODE § 35-47-5-13 (2011); MASS. GEN. LAWS ch. 269, § 10D (2011);
N.H. REV. STAT. ANN. § 650-B:2(I) (2011); OKLA. STAT. tit. 21, § 1289.26 (2011);
18 PA. CONS. STAT. § 907(c) (2011).
124. MICH. COMP. LAWS § 750.227f(1) (2012); N.Y. PENAL LAW §
270.20(1) (McKinney 2011); W. VA. CODE § 61-7-15 (2011); WIS. STAT. §
941.291 (2009–2011).
125. FLA. STAT. § 775.0846 (2011); GA. CODE ANN. § 16-11-160(a)(2)(B)
(2011); LA. REV. STAT. ANN. § 14:95.3 (2012); MD. CODE ANN., CRIM. LAW § 4106 (West 2012); N.J. STAT. ANN. § 2C:39-13 (West 2012); S.C. CODE ANN. § 163-1080 (2011); TENN. CODE ANN. § 39-17-1323 (2011); VA. CODE ANN. § 18.2287.2 (2012); see Michael T. Flannery et al., The Use of Hair Analysis to Test
Children for Exposure to Methamphetamine, 10 MICH. ST. U. J. MED. & L. 143
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The second category differentiates between those statutes that
require the possession of a weapon in addition to the body armor and
those that do not. Only four states—Illinois, New York, Oregon, and
Virginia—require that an individual also possess a weapon. 126 While
Illinois and Oregon specify that it must be a dangerous or deadly
weapon, 127 Virginia requires either a firearm or knife. 128 New York
redundantly requires in its statute a “firearm, rifle or shotgun.” 129 The
vast majority of states do not have a specific weapon element of the
crime. 130
The last way to categorize the statutes is by determining whether
mere possession of body armor is sufficient or if the body armor must
actually be worn during the commission of the underlying crime.
“Possession” of body armor is a much broader concept than
“wearing” because it includes body armor that is merely in areas
under the control of an individual. 131 Statutes that criminalize
“possession” expand the scope of who may be prosecuted beyond
those who actually wear the body armor. 132 In only four states—
Florida, Pennsylvania, Texas, and Wisconsin—is mere possession of
body armor sufficient to be actionable during the commission of a
crime. 133 All other states require that the body armor actually be
(2006); see also Larkin, supra note 1, at 98 (detailing the Georgia statute that
makes it unlawful to wear a bulletproof vest during the commission or attempted
commission of certain offenses).
126. 720 ILL. COMP. STAT. 5 / 33F-2 (2012); N.Y. PENAL LAW § 270.20(1); OR.
REV. STAT. § 166.643; VA. CODE ANN. § 18.2-287.2.
127. 720 ILL. COMP. STAT. 5 / 33F-2; OR. REV. STAT. § 166.643(1)(b).
128. VA. CODE ANN. § 18.2-287.2.
129. N.Y. PENAL LAW § 270.20(1). The statute’s wording is redundant because a
rifle and a shotgun both qualify as a firearm.
130. ARIZ. REV. STAT. ANN. § 13-3116 (2011); DEL. CODE ANN. tit. 11, § 1449
(2011); FLA. STAT. § 775.0846; GA. CODE ANN. § 16-11-160; IND. CODE § 35-475-13 (2011); LA. REV. STAT. ANN. § 14:95.3; MD. CODE ANN., CRIM. LAW § 4106; MASS. GEN. LAWS ch. 269, § 10D (2011); MICH. COMP. LAWS § 750.227f(1)
(2012); N.H. REV. STAT. ANN. § 650-B:2 (2011); N.J. STAT. ANN. § 2C:39-13;
OKLA. STAT. tit. 21, § 1289.26 (2011); 18 PA. CONS. STAT. § 907 (2011); S.C.
CODE ANN. § 16-3-1080; TENN. CODE ANN. § 39-17-1323; W. VA. CODE § 61-7-15
(2010); WIS. STAT. § 941.291 (2009–2010).
131. See Larkin, supra note 1, at 97.
132. See id.
133. FLA. STAT. § 775.0846; 18 PA. CONS. STAT. § 907; TEX. PENAL CODE ANN.
§ 46.041 (West 2012); WIS. STAT. § 941.291. Possession does not have to be
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BODY ARMOR AND THE LAW
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worn or used during the commission of the crime. 134 Maryland’s
statute is the most interesting with regard to “wearing” versus mere
“possession.” 135 If the underlying crime for which the individual is
convicted is a crime of violence, then the body armor must be worn
during the commission of that crime of violence for the use of body
armor to be a crime. 136 If, on the other hand, the underlying crime is
drug trafficking, then the individual may be prosecuted for either
wearing or possessing body armor during the commission of the drug
offense. 137
Punishments for body armor use or possession during the
commission of a crime included in these statutes range from a
misdemeanor for the first offense (Illinois) 138 to life imprisonment for
a subsequent offense (Georgia). 139 While some statutes require a
specific sentence, 140 the majority merely places the offense into a
physical; access to control of the property where the body armor is found is
sufficient. Hargrove v. Texas, 211 S.W.3d 379, 386 (Tex. Crim. App. 2006).
134. ARIZ. REV. STAT. ANN. § 13-3116(A); DEL. CODE ANN. tit. 11, § 1449; GA.
CODE ANN. § 16-11-160(2)(B); 720 ILL. COMP. STAT. 5 / 33F-2 (2012); IND. CODE
§ 35-47-5-13; LA. REV. STAT. ANN. § 14:95.3; MASS. GEN. LAWS ch. 269, § 10D;
MICH. COMP. LAWS § 750.227f(1); N.H. REV. STAT. ANN. § 650-B:2(I); N.J. STAT.
ANN. § 2C:39-13; N.Y. PENAL LAW § 270.20; OKLA. STAT. tit. 21, § 1289.26; OR.
REV. STAT. § 166.643(1)(a) (2011); S.C. CODE ANN. § 16-3-1080; TENN. CODE
ANN. § 39-17-1323; VA. CODE ANN. § 18.2-287.2 (2012); W. VA. CODE § 61-7-15.
135. MD. CODE ANN., CRIM. LAW § 4-106.
136. Id. § 4-106(b).
137. Id. LAW § 4-106(c).
138. 720 ILL. COMP. STAT. 5 / 33F-3, 5 / 2-11.
139. GA. CODE ANN. § 16-11-160(c).
140. DEL. CODE ANN. tit. 11, §§ 1449(b), (g) (2012) (providing a sentence of no
less than three years and classifying the offense as a Class B felony); GA. CODE
ANN. § 16-11-160(b) (providing one to five years for a first offense); LA. REV.
STAT. ANN. § 14:95.3(C) (2012) (providing a sentence of no more than two years
and/or a fine of up to $2,000); MASS. GEN. LAWS ch. 269, § 10D (2012) (providing
a sentence of one to five years depending on whether the sentence is served in
prison or in a local jail); MICH. COMP. LAWS § 750.227f(1) (2012) (providing a
sentence of no more than four years and/or a fine of up to $2,000); OKLA. STAT. tit.
21, § 1289.26 (2011) (providing a sentence of no more than ten years for a first
offense and no more than twenty years for second or subsequent offense); W. VA.
CODE § 61-7-15(a) (2011) (providing a sentence of two to ten years and/or a fine of
up to $10,000).
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certain category of felony. 141 Likewise, some states allow for the
punishment to run either concurrently or consecutively with other
terms of imprisonment, 142 while other states require it to run
consecutively to any other sentence. 143 Finally, some states prohibit
the suspension or probation of the sentence. 144
IX. CONVICTED CRIMINALS IN POSSESSION OF BODY ARMOR
A number of states, just like the federal government, regulate
body-armor possession. For example, California and Michigan
prohibit individuals convicted of a violent felony from purchasing,
owning, possessing, or using body armor. 145 Unlike the federal
prohibition, however, some states’ bans are not limited to individuals
convicted of violent felonies. For instance, Texas prohibits the
possession of body armor by any convicted felon. 146 In Oregon, an
individual who commits either a violent felony or a violent
141. ARIZ. REV. STAT. ANN. § 13-3116(B) (2011) (classifying the offense as a
Class Four felony); FLA. STAT. § 775.0846(3) (2011) (classifying the offense as a
third-degree felony); 720 ILL. COMP. STAT. 5 / 33F-3 (classifying second or
subsequent offenses as Class Four felonies); IND. CODE § 35-47-5-13(b) (2011)
(classifying the offense as a Class D felony); N.H. REV. STAT. ANN. § 650-B:2(I)
(2011) (classifying the offense as a Class B felony); N.J. STAT. § 2C:39-13 (West
2012) (classifying the offense as a second- or third-degree felony depending on the
category of the underlying crime committed or attempted while wearing body
armor); N.Y. PENAL LAW § 270.20(2) (McKinney 2011) (classifying the offense as
a Class E felony); OR. REV. STAT. § 166.643(1)(a) (2011) (classifying the offense
as a Class B felony); 18 PA. CONS. STAT. § 907(c) (2011) (classifying the offense
as a third-degree felony); TENN. CODE ANN. § 39-17-1323(c) (2011) (classifying
the offense as a Class E felony); VA. CODE ANN. § 18.2-287.2 (2012) (classifying
the offense as a Class Four felony); WIS. STAT. § 941.291(3) (2011) (classifying a
first offense as a Class E felony and classifying second or subsequent offenses as
Class D felonies).
142. MICH. COMP. LAWS § 750.227f(1); S.C. CODE ANN. § 16-3-1080(a) (2012).
143. DEL. CODE ANN. tit. 11, § 1449(c); GA. CODE ANN. § 16-11-160(b); N.H.
REV. STAT. ANN. § 650-B:2(II); TENN. CODE ANN. § 39-17-1323(e).
144. See, e.g., DEL. CODE ANN. tit. 11, § 1449(b)(3); GA. CODE ANN. § 16-11160(d).
145. CAL. PENAL CODE § 31360 (West 2012); MICH. COMP. LAWS § 750.227g;
see Walker, supra note 1, at 651 n.520.
146. TEX. PENAL ANN. CODE § 46.041 (West 2012).
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misdemeanor is banned from possessing body armor, 147 while in
Maryland; the ban applies to individuals who are convicted of either
a crime of violence or a drug-trafficking crime. 148 Many states take a
different approach and have certain enumerated offenses that
determine whether an individual is banned from possessing body
armor. 149 While many of these enumerated crimes are specified
violent felonies, 150 they can also include crimes such as drug
trafficking 151 or the manufacture of “delayed action incendiary
device[s].” 152 Some state laws such as those in Arkansas, 153
Connecticut, 154 Oregon, 155 Texas, 156 and Louisiana, 157 limit only
possession, while others specifically prohibit the individual from
purchasing or owning the body armor as well. 158
Under 18 U.S.C. § 931(b), an affirmative defense is provided if
the defendant obtained prior, written approval from an employer that
the body armor was to be used solely in the course of the
performance of lawful business activity. 159 Also, several state statutes
147. OR. REV. STAT. § 166.642 (2011). The ban does not apply if the qualifying
offense occurred fifteen years or more before the date of the alleged violation. OR.
REV. STAT. § 166.642(1)(b).
148. MD. CODE ANN., CRIM. LAW § 4-107 (West 2012).
149. See ARK. CODE ANN. § 5-79-101 (2011); CONN. GEN. STAT. § 53a-217
(2011); LA. REV. STAT. ANN. § 14:95.3 (2012); S.C. CODE ANN. § 16-3-1085
(2011); WIS. STAT. § 941.291(2) (2009).
150. See ARK. CODE ANN. § 5-79-101(a). Applicable crimes under the statute are
capital murder, murder in the first degree, murder in the second degree,
manslaughter, aggravated robbery, battery in the first degree, and aggravated
assault. Id.
151. See S.C. CODE ANN. §§ 16-3-1085, 16-1-600.
152. LA. REV. STAT. ANN. § 14:95.3(A)(1)(e).
153. ARK. CODE ANN. § 5-79-101.
154. CONN. GEN. STAT. § 53a-217d (2011).
155. OR. REV. STAT. § 166.642 (2011).
156. TEX. PENAL CODE ANN. § 46.041 (West 2011).
157. LA. REV. STAT. ANN. § 14:95.3.
158. CAL. PENAL CODE § 31360 (West 2012); MD. CODE ANN., CRIM. LAW § 4107 (West 2012); MICH. COMP. LAWS § 750.227g (2012); S.C. CODE ANN. § 16-31085 (2011).
159. 18 U.S.C. § 931(b) (2006). Oregon likewise provides an affirmative
defense for violating its statute. OR. REV. STAT. § 166.642(5). It prohibits certain
individuals from possessing body armor if the individual has a protective or
restraining order entered on his or her behalf, so long as the body armor is not used
during the attempt or commission of a crime. Id.
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give certain authorities the ability to exempt individuals from the
body-armor ban. 160 California, Michigan, and South Carolina all
allow a local chief of police or sheriff to grant a waiver to the bodyarmor prohibition on a written finding that the individual has a
reasonable need to use the body armor for employment purposes and
would use it in a safe, lawful manner. 161
Wisconsin grants the same authority to each county circuit
court. 162 While in Maryland, the Secretary of State Police may grant
a revocable, five-year permit to purchase, possess, or use body armor
to an individual otherwise banned from having it. 163
Punishment for violation of body-armor bans varies from state to
state. In Arkansas, Connecticut, and Maryland, violation of a bodyarmor ban is a misdemeanor. 164 On the other hand, California,
Michigan, Oregon, and Texas treat it as a felony. 165 In Wisconsin,
violating the body-armor ban is a Class E felony for the first offense,
160. See, e.g., CAL. PENAL CODE § 31360(b); MD. CODE ANN., CRIM. LAW §§ 4107(b), (f)(1); MICH. COMP. LAWS § 750.227g(2); S.C. CODE ANN. § 16-31085(B)(1); WIS. STAT. § 941.291(4) (2009–2010).
161. CAL. PENAL CODE § 31360(b); MICH. COMP. LAWS § 750.227g(2); S.C.
CODE ANN. §§ 16-3-1085(B)(1)–(3).
162. WIS. STAT. § 941.291(4).
163. MD. CODE ANN., CRIM. LAW §§ 4-107(b), (f)(1).
164. ARK. CODE ANN. § 5-79-101(c) (2011) (stipulating that the offense is a
Class A misdemeanor); CONN. GEN. STAT. § 53a-217d (2011) (stipulating that the
offense is a Class A misdemeanor); MD. CODE ANN., CRIM. LAW § 4-107(k)
(stipulating that the offense is a misdemeanor punishable by imprisonment not
exceeding five years, a fine not exceeding $5,000, or both). Maryland’s
misdemeanor punishment is potentially greater than some states’ felony sentences.
Compare id. with CAL. PENAL CODE § 31360(a) (stipulating that the offense is a
felony that carries a punishment of imprisonment for sixteen months or two or
three years), and MICH. COMP. LAWS § 750.227g(9)(a) (stipulating that the offense
is a felony that carries a punishment of imprisonment for a maximum of four
years).
165. CAL. PENAL CODE § 31360(a) (stipulating that the offense is a felony that
carries a punishment of imprisonment for sixteen months or two or three years);
MICH. COMP. LAWS § 750.227g(9)(a) (stipulating that the offense is a felony that
carries a punishment of imprisonment for a maximum of four years); OR. REV.
STAT. § 166.642(2) (2011) (stipulating that the offense is a Class C felony); S.C.
CODE ANN. § 16-3-1085(D)(1) (stipulating that the offense is punishable by
imprisonment for not more than five years, a fine of not more than $2,000, or
both); TEX. PENAL CODE ANN. § 46.041(c) (West 2012) (stipulating that the
offense is a third-degree felony).
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and a Class D felony for the subsequent offense. 166 In Michigan and
South Carolina, it is a misdemeanor if an individual, otherwise
subject to the ban, forgets to have written permission in his or her
possession to possess body armor. 167
X. STATE RESTRICTIONS APPLYING TO ALL INDIVIDUALS
In some states there are restrictions on body armor that apply to
all individuals, not just those who have been convicted of a certain
type of crime. In Louisiana, for example, no one—whether student or
adult—may wear body armor on “school property, at a schoolsponsored function, or in a firearm-free zone.” 168 An exception to
this ban exists for an individual who provides written notification to
the school principal at least twenty-four hours in advance of entering
school property with the body armor. 169 Under this statute, school
officials are also liable if they fail to seize or report to law
enforcement any unauthorized body armor on school grounds within
seventy-two hours of discovery. This is punishable as a felony with a
$500 fine and/or forty hours of community service. 170 Luckily for the
school principal or other cited officials, payment of the fine or
completion of community service expunges the conviction. 171
Likewise, Connecticut has a body-armor restriction that is applicable
to all individuals. Any person who wants to buy body armor in
Connecticut must do so in person—Internet and telephone purchases
are prohibited. 172 This restriction is applicable to persons, firms, and
corporations; violations are punished as Class B misdemeanors. 173
166. WIS. STAT. §§ 941.291(3)(a), (b).
167. MICH. COMP. LAWS § 750.27g(9)(b) (stipulating that the offense is a
misdemeanor punishable by imprisonment for not more than ninety-three days, a
fine of not more than $100, or both); S.C. CODE ANN. § 16-3-1085(D)(2)
(stipulating that the offense is a misdemeanor punishable by imprisonment for not
more than ninety days, a fine of not more than $100, or both).
168. LA. REV. STAT. ANN. § 14:95.9(A) (2012).
169. LA. REV. STAT. ANN. § 14:95.9(C)(3).
170. LA. REV. STAT. ANN. § 14:95.9(G).
171. Id.
172. CONN. GEN. STAT. § 53-341b (2011).
173. CONN. GEN. STAT. § 53-341d.
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XI. DEFINING BODY ARMOR
In addition to the variety of approaches to regulating body armor,
there are also a variety of statutory definitions of “body armor.” By
far the simplest definitions are found in Arizona’s and Oregon’s
statutes, which define it as “any clothing or equipment designed in
whole or in part to minimize the risk of injury from a deadly
weapon.” 174 Other states’ statutes are much more specific. For
instance, Oklahoma defines body armor as “a vest or shirt of ten (10)
plies or more of bullet resistant material as defined by the Office of
Development, Testing and Dissemination, a division of the United
States Department of Justice.” 175 The most scientific definition of
body armor is used by New York:
[A] bullet-resistant soft body armor providing, as a
minimum standard, the level of protection known as
threat level I which shall mean at least seven layers of
bullet-resistant material providing protection from
three shots of one hundred fifty-eight grain lead
ammunition fired from a .38 calibrate handgun at a
velocity of eight hundred fifty feet per second. 176
The honor of having the most comprehensive statutory definition,
however, belongs to Illinois:
“Body Armor” means any one of the following: (1) A
military style flak or tactical assault vest which is
made of Kevlar or any other similar material or metal,
fiberglass, plastic, and nylon plates and designed to be
worn over one's clothing for the intended purpose of
stopping not only missile fragmentation from mines,
grenades, mortar shells and artillery fire but also fire
174. ARIZ. REV. STAT. ANN. § 13-3116(C) (2012); OR. REV. STAT. § 166.641(1)
(2011).
175. OKLA. STAT. tit. 21, § 1289.19(2) (2011).
176. N.Y. PENAL LAW § 270.20(2) (McKinney 2011); see also FLA. STAT. §
775.0846(1) (2011); GA. CODE ANN. § 16-11-160(a)(2)(A) (2011); TENN. CODE
ANN. § 39-17-1323(b) (2011). Such specificity can impair a successful prosecution
if evidence is not introduced in the testing of a piece of body armor demonstrating
the different factors cited in the statute. People v. Garcia, 608 N.Y.S. 2d 425, 425–
26 (1994); see also Batey, supra note 99, at 132; Walker, supra note 1 at 651, 652–
53.
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from rifles, machine guns, and small arms. (2) Soft
body armor which is made of Kevlar or any other
similar material or metal or any other type of insert
and which is lightweight and pliable and which can be
easily concealed under a shirt. (3) A military style
recon/surveillance vest which is made of Kevlar or
any other similar material and which is lightweight
and designed to be worn over one's clothing. (4)
Protective casual clothing which is made of Kevlar or
any other similar material and which was originally
intended to be used by undercover law enforcement
officers or dignitaries and is designed to look like
jackets, coats, raincoats, quilted or three piece suit
vests. 177
The statutory definitions also vary in terms of the materials that
comprise the body armor and the threat that the body armor is
intended to protect against. Massachusetts, Pennsylvania, and West
Virginia define body armor as being made of Kevlar or “any
polyaramid fiber or any resin-treated glass fiber cloth” possibly
combined with other materials. 178 Other states, such as Indiana and
Louisiana, define body armor as being made of metal or other
materials. 179 The simplest definitions merely state that the body
armor can be made from any material. 180 Some statutes limit the
definition of body armor to that which merely protects against
177. 720 ILL. COMP. STAT. 5 / 33F-1(a) (2012). Likewise, West Virginia has a
very comprehensive definition of body armor. W. VA. CODE § 61-7-15(b) (2011).
178. 18 PA. CONS. STAT. § 907(d) (2011).
179. IND. CODE § 35-47-5-13(a) (2011); LA. REV. STAT. ANN. § 14:95.3(D)
(2012); see also TEX. PENAL CODE ANN. § 46.041(a) (West 2012).
180. See DEL. CODE ANN. tit. 11, § 1449(e) (2011); UTAH CODE ANN. § 76-3203.7(a) (West 2012).
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gunfire, 181 while others make it applicable to any weapon—whether
bullet, knife, projectile, etc. 182
XII. CONCLUSION
It is somewhat strange that something that is not a weapon—but
is purely defensive in nature—is the subject of such a wide variety of
legislation that criminalizes its use. 183 Night-vision goggles are not
illegal, yet criminals could use them for unlawful purposes. 184 Police
scanners are legal in almost every state, yet they could be used to
assist in crimes. 185 A radar detector’s sole function is to help a driver
avoid being arrested for speeding, yet they are legal in almost every
state. 186 As stated in United States v. Patton, “[W]earing body armor
is not an inherently threatening act. Much of the time, wearing body
armor is an act of self-defense, which reduces rather than increases
crime.” 187 The fear of body armor, and the rationale for criminalizing
its improper use, is that criminals will be invulnerable to police
gunfire. 188 Of all the laws that regulate body armor, the ones that
make the most sense are those that punish, either directly or
indirectly as a sentence enhancement, people who use body armor in
the commission of a crime. In those situations, the sentence
enhancement seems appropriate because it indicates a certain mens
181. See ARK. CODE ANN. § 5-79-101(b) (2011); CAL. PENAL CODE § 16288
(West 2012); CONN. GEN. STAT. § 53a-217d(b) (2011); DEL. CODE ANN. tit. 11, §
1449(e); MD. CODE ANN., CRIM. LAW § 4-106 (West 2012); MICH. COMP. LAWS §
750.227f(3)(a) (2012); N.H. REV. STAT. ANN. § 650-B:1 (2011); N.J. STAT. §
2C:39-13 (West 2012); S.C. CODE ANN. §§ 16-3-1080(C)(1), 16-3-1085(E) (2011);
TEX. PENAL CODE ANN. § 46.041(a); VA. CODE ANN. § 18.2-287.2 (2011); WIS.
STAT. § 941.291(1)(a) (2010–2011).
182. ARIZ. REV. STAT. ANN. § 13-3116(C) (2011); IND. CODE § 35-47-5-13(a);
LA. REV. STAT. ANN. § 14:95.3(D); MASS. GEN. LAWS ch. 269, § 10D (2012); OR.
REV. STAT. § 166.641(1) (2011); 18 PA. CONS. STAT. § 907(d); UTAH CODE ANN. §
76-3-203.7(a).
183. Larkin, supra note 1, at 96.
184. See United States v. Jeanetta, 533 F.3d 651, 657–58 (8th Cir. 2008)
(discussing reasons why drug dealers may use night-vision goggles).
185. U.S. Scanner Laws, MOBILE SCANNER & RADAR-DETECTOR LAWS,
http://www.afn.org/~afn09444/scanlaws/scanner5.html (last updated Jan. 1, 2012).
186. See, e.g., Tom Christoffel, Traffic Safety in the Electronic Age: Radar
Detectors vs. Speed Law Enforcement, 24 NEW ENG. L. REV. 1, 19 (1989).
187. 451 F.3d 615, 629 (10th Cir. 2006).
188. See Walker, supra note 1, at 650–51.
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rea; the individual, donning body armor as if girding for battle,
demonstrates a certain expectation of a dangerous situation due to
their actions. If someone commits a crime while using body armor,
then it makes sense to take that into consideration.
The body-armor bans for felons, however, are based on status and
not on the actions of an individual. These laws were “not intended to
be a deterrent; rather, [they were] . . . to ‘remove dangerous people
from the street”’ by keeping them in prison for a longer period of
time. 189 “‘The [felons] who wear bulletproof vests during the
commission of a crime are prepared for the worst[,] and the longer
they are put away, the less the public is at risk.’” 190 In fact, a criminal
may consider the benefit of the protection offered by body armor
greater than the negative potential of an increased prison sentence if
caught, thus rendering the deterrent effect of these laws moot. 191 In a
cost-benefit analysis, the safety benefits of wearing body armor may
trump the statutory hazards.
Not only is the logic of the body-armor bans questionable, but it
also ignores the concept of rehabilitation. With the exception of
Oregon, the federal and state prohibitions on felons having body
armor are lifelong. 192 Once convicted of a prerequisite crime, the ban
on body armor is forever—unless the individual is in a state where
law enforcement or a court can determine whom to exempt from the
law. 193 No other criminal statute or law authorizes the police or
sheriff, but not the courts, to restore an individual’s “rights.” 194 As
189. Larkin, supra note 1, at 98–99 (quoting a telephone interview with Rep.
Victor Hill, Georgia House District No. 81 (Apr. 9, 2003)).
190. Id. (alteration in original).
191. See id. at 96.
192. OR. REV. STAT. § 166.642(4)(b) (2011). The following describes what the
felon body-armor ban does not apply to:
(b) A person who has been convicted of only one felony under the
law of this state or any other state, or who has been convicted of
only one felony under the law of the United States, which felony did
not involve criminal homicide, as defined in ORS 163.005, and who
has been discharged from imprisonment, parole or probation for the
offense for a period of 15 years prior to the date of the alleged
violation . . . .
Id.
193. See supra text accompanying notes 152-54.
194. See, e.g., Lauren Handelsman, Note, Giving the Barking Dog a Bite:
Challenging Felon Disenfranchisement Under the Voting Rights Act of 1965, 73
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shown above, of all the statutes that regulate body armor, those that
ban felons from possessing it are based on the weakest constitutional
foundation. Because these laws are not designed to deter crime in the
first place, they are also the ones that make the least sense.
Ultimately, it must be remembered that body armor is not in any
way a weapon; it cannot hurt a proverbial fly. Because of recidivism,
there is logic to prohibiting convicted felons from possessing
firearms, which can be used to harm others. However, there is no
equivalent logic in prohibiting a convicted felon from wearing a
garment that cannot harm others. It is like comparing apples and
oranges, and these prohibitions seem to be enacted more because they
can be, not because they ought to be.
FORDHAM L. REV. 1875 (2005) (discussing that only courts in certain states can
restore a felon’s voting rights).