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View Full Version : Sometimes being bullet-proof is not a good idea


Ricky B
May 15, 2009, 12:26 AM
In United States v. Alderman, a May 12 opinion by the Ninth Circuit Court of Appeals, the court considered whether Congress has the authority under the Commerce Clause of the United States Constitution, art. I, § 8, cl. 3, to criminalize the possession by a felon of body armor that has been “sold or offered for sale in interstate commerce.” 18 U.S.C. §§ 931 and 921(a)(35). Put another way, the issue was whether the sale of body armor in interstate commerce creates a sufficient nexus between possession of the body armor and commerce to allow for federal regulation under Congress’s Commerce Clause authority.

In recent years, the Supreme Court has significantly altered the landscape of congressional power under the Commerce Clause. See, e.g., United States v. Morrison, 529 U.S. 598 (2000) (striking down statute that provided a federal civil remedy for victims of gender-motivated violence); United States v. Lopez, 514 U.S. 549 (1995) (striking down federal statute regulating possession of guns in school zones). Nonetheless, the court said tha the resolution to this case is found in Supreme Court and Ninth Circuit precedent that addresses a jurisdictional element nearly identical to the one that applies to § 931. See Scarborough v. United States, 431 U.S. 563, 575, 577 (1977) (concluding that, in the context of Title VII of the Omnibus Crime Control Act, proof that a firearm traveled in interstate commerce satisfies the required nexus between possession of the firearm and commerce); United States v. Cortes, 299 F.3d 1030, 1037 n.2 (9th Cir. 2002) (upholding carjacking statute and stating that “the vitality of Scarbourough engenders significant debate,” but “[u]ntil the Supreme Court tells us otherwise… we follow Scarborough unwaveringly.”). The Ninth Circuit concluded that it was bound by this precedent — absent the Supreme Court or the entire court sitting en banc saying otherwise — and that the felon-in-possession of body armor statute passes muster.

Cedrick Alderman was arrested in 2005 during a sting operation involving an attempted controlled purchase of cocaine. Alderman had been previously convicted of felony robbery. The arresting officer discovered that Alderman was wearing a bullet-proof vest. Alderman was booked for possession of the vest and for violating the conditions of his supervision. Because Washington state law does not criminalize felon possession of body armor, the matter was referred to the federal authorities. Alderman was indicted under 18 U.S.C. § 931(a), which makes it unlawful for a person convicted of a felony involving a “crime of violence” to possess body armor. See James Guelff and Chris McCurley Body Armor Act of 2002, § 11009(e)(2)(A), 18 U.S.C. § 931 (criminalizing the possession of body armor by felons as of Nov. 2, 2002).

It was clear that the body armor possessed by Alderman had previously been sold in interstate commerce and that he was a felon in possession of it. The only question was whether Congress could criminalize his possession of body armor.

The court determined that Lopez case did not overrule Scarborough. It noted that it had a situation where a nearly identical jurisdictional hook had been blessed by the Supreme Court. Therefore, it did not engage in careful parsing of post-Lopez case law that would otherwise be required. Rather, it said that “[u]ntil the Supreme Court tells us otherwise… we [must] follow Scarborough unwaveringly.”

Thus, Alderman could be punished by Congress for being a felon in possession of body armor.

As you may recall, in Lopez, the statute that the Supreme Court considered did not have an express "jurisdictional hook" that the firearm have traveled in interstate commerce; subsequent to Lopez's conviction, the statute was amended so to provide. The Supreme Court has not ruled on the amended statute. Therefore one should expect the federal courts to uphold convictions under the federal gun-free school zone law until the Supreme Court addresses the issue whether the jurisdictional hook here (and in the amended federal gun-free school zone law) is sufficient.

By the way, there was a dissent, which I think was better reasoned.

Double Naught Spy
May 15, 2009, 05:18 AM
What's your point?

apr1775
May 15, 2009, 02:44 PM
Some states make it a crime to use or wear body armor while in commision of a violent crime. Suppose the idea is that the body armor become another tool used by the criminal to help him commit the crime and it gives prosecutors another charge to pile on.

This sounds a little different. Just the mear possesion being a crime. So congress can dictate what kind of clothing a convicted felon can wear mearly because such article was once involved in interstate commerce. This really should be looked at under the light of US v Lopez.

Don Gwinn
May 15, 2009, 04:57 PM
A felon named Alderman?

Guy from Chicago, by any chance?

Shadi Khalil
May 15, 2009, 06:21 PM
A felon named Alderman?

Guy from Chicago, by any chance?


He was arrested in Washington State.

Erik
May 16, 2009, 04:17 PM
That was, I'm fairly certain, a fine example of dry humor.

Dragon55
May 16, 2009, 04:52 PM
What's next what kind of shoes can I wear? No... this is BS.

Dragon55
May 16, 2009, 05:03 PM
Some folks live in places where this wouldn't be a bad idea. I don't, thank the Lord. I also probably won't be walking around with a helmet but if I want to I want to be able to.
The federal government already takes 35% of my fri..n! wages, the state another pile, and the locals charge for everything short of a drink of water!!!!!!!

He!! no they won't tell me how to dress! My goodness! When is it gonna stop??

I wouldn't even know how to put on body armor BUT if I want to I should be able to even if I have have a few gallons of shine, growed a little pot, or some other minor thing that makes me a felon. You can be a felon for lots of reasons. Some of them have nothing to do with any kind of violence. Sheeeesh!

mskdgunman
May 16, 2009, 06:17 PM
In FL, wearing body armor during the commision of a felony is an enhancement to the original charge (F-3 to F-2, F-2 to an F-1 and so on).

publius42
May 17, 2009, 07:25 AM
This sounds a little different. Just the mear possesion being a crime. So congress can dictate what kind of clothing a convicted felon can wear mearly because such article was once involved in interstate commerce. This really should be looked at under the light of US v Lopez.

They can ban possession as part of regulation.

Scalia, concurring in Raich (http://straylight.law.cornell.edu/supct/html/03-1454.ZC.html):

The application of these principles to the case before us is straightforward. In the CSA, Congress has undertaken to extinguish the interstate market in Schedule I controlled substances, including marijuana. The Commerce Clause unquestionably permits this. The power to regulate interstate commerce “extends not only to those regulations which aid, foster and protect the commerce, but embraces those which prohibit it.” ..... To effectuate its objective, Congress has prohibited almost all intrastate activities related to Schedule I substances–both economic activities (manufacture, distribution, possession with the intent to distribute) and noneconomic activities (simple possession)..... That simple possession is a noneconomic activity is immaterial to whether it can be prohibited as a necessary part of a larger regulation. Rather, Congress’s authority to enact all of these prohibitions of intrastate controlled-substance activities depends only upon whether they are appropriate means of achieving the legitimate end of eradicating Schedule I substances from interstate commerce.

Ricky B
May 17, 2009, 11:10 AM
That simple possession is a noneconomic activity is immaterial to whether it can be prohibited as a necessary part of a larger regulation.
But here I see the question as being whether Congress could prohibit simple possession when it is not part of a larger regulation. In other words, unlike controlled substances, Congress has not generally prohibited selling body armor.

Maybe Scalia would agree with me:

the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective.

KChen986
May 17, 2009, 06:12 PM
I think for the most part, prohibiting violent felons from possessing body armor is a good idea. The reason being, as a violent felon, one has already proved their criminal penchant. Thus, much like how violent felons cannot purchase guns, neither can they purchase body armor.

I certainly would not want a burglar coming in to my home with body armor. Would you?

I'm all for compact federalism. However, as most of us know, the Commerce Clause has been fully exploited to allow the Federal Gov't to do whatever it wants.

Under Lopez, the test was restricted to from "activity which substantially affects commerce (Wickard)" to "economic activity which substantially effects commerce." Thereby, Rehnquist (i think) scaled back the reach of the commerce power as established in Wickard v. Filburn (that anything aggregated enough times will 'substantially affect commerce' and thus is in commerce power) to a limited class of 'economic activities.' However, as the OP mentioned, Gonzalez v. Raich reintroduced the idea of aggregation and effectively re-broadened the rule that Rehnquist limited in Lopez.

Anyone think that we'll go back to the Formalist Era, where non-evil things were not regulated, but evil things (lottery tickets, booze) were within commerce clause powers?

Hellbilly5000
May 18, 2009, 04:46 AM
At the point that someone is committing a crime do the law makers really expect them to follow the letter of the law when it comes to wearing body armor?
Just like felons can't be in possession of a gun but they get them anyways

publius42
May 18, 2009, 07:25 AM
In other words, unlike controlled substances, Congress has not generally prohibited selling body armor.

Ah, the "comprehensive regulatory scheme" argument. We'll uphold regulations against the dangerous use of drugs because they're part of a comprehensive regulatory scheme, but gun regulation is not comprehensive.

It's not? OK, I don't buy it, but let's accept that. The comprehensive regulation argument wasn't enough in US v Oregon, and as usual, Justice Thomas' dissent (http://straylight.law.cornell.edu/supct/html/04-623.ZD1.html) showed the inconsistency in what the court was doing. Look for Congress' efforts to control interstate commerce in guns to be seen as "comprehensive enough" as needed by the Court.