Monday, December 02, 2013

In Re Perdue (Cal. Ct. App. - Dec. 2, 2013)

I'll try to write an opinion that comes to the same conclusion as this afternoon's opinion from the Court of Appeal, but that's a little bit more forthright.  Here goes:

"Defendant was a felon and had a bulletproof vest ("body armor"), which is itself a felony.  So he was sentenced to six years in prison.  He says the law's void for vagueness.

He's got a point.  The statute says that people convicted of violent felonies can't possess "body armor" as that term is defined by Section 942 of Title 11 of the California Code of Regulations.  Through a complicated series of cross-references, the statute basically provides that felons aren't allowed to own or possess bulletproof vests of the type that police officers wear.  The regulations for which establish an incredibly detailed series of ballistic tests and other provisions designed to ensure that the vests that we give to cops actually work.

Which makes sense.  But it also means that if you're a felon, you're only prohibited from wearing "good" (e.g., tested-and-approved-for-police) bulletproof vests, not crappy -- or simply inferior or untested -- ones.

Defendant's totally right when he says that this statute means that a layperson can't tell whether he's violating the statute or not.  Not even a sophisticated person -- much less a regular person -- can tell whether a particular jacket qualifies as 'body armor' under the statute.  That's usually fatal.  As the Supreme Court has repeatedly said, a statute has to be definite, and tell people in certain terms what is permissible and what's not.  That's a big component of the Due Process Clause.

But the reality is that situations and circumstances matter.

Yes, the Supreme Court has struck down statutes that prohibited 'loitering' and the like on Due Process grounds.  'Cause no one can know what that really means.  Ditto for laws that require that doctors dispose of fetal remains in a 'humane and sanitary manner'.  Requires guesswork.  Not constitutional.

But this case isn't about loitering, which we're okay with (and sometimes even like).  Or abortions, which entail a constitutional right.  It's about body armor for violent felons.

Context matters, my friends.  Which is why the Supreme Court has taken a certain approach to, say, loitering statutes, and yet has applied these exact same doctrinal principles in a slightly different fashion to things like, oh, 'drug paraphenalia' and the like.  And guess what?  The judiciary has an even more favorable attitude towards bongs than it does towards a violent felon wearing a bullet proof jacket.

So, yes, "We'll know it when we see it" isn't a sufficient principle of constitutional law.  It doesn't ratify a statute challenged as being impermissibly vague.

Except when it does.

So were you surprised when the California Supreme Court upheld DUI statutes against a vagueness challenge?  Of course you weren't.  Can an ordinary person tell the difference between .10 (or .08) and, say, .07?  No.  They can't.  The statute's 'vague' to that extent.

But we don't like drunk drivers.  We're concerned that innocent people -- perhaps ourselves, even -- might be swept up by the police if we permit statutes that criminalize "loitering" or "vagrancy".  But once we start dealing with drunk drivers and the like -- and especially when we start dealing with bulletproof violent felons -- that concern doesn't really motivate us much anymore.  Now we're going to start saying that it's your fault, not the state's.  That even though the statute's vague, it's your fault, not ours, for getting close to the line.

I hear the complaints.  This is an unprincipled rule.  It's not actually set forth anywhere by precedent.  It's not justice.

Perhaps all true.

But the truth is that our laws -- even our criminal laws -- are at times necessarily vague.  Our civil laws too, for that matter.  Which is why we have to spend a whole semester telling even our smartest students what simple 'negligence' entails.  And don't even get me started on what counts as 'obscene'.

Doctrine may not vary depending upon context, but results nonetheless do.  Could the statute here have been clearer?  Absolutely.  Should it be?  Definitely.  It's silly to define a criminal statute by reference to tests and approvals that were designed to protect police.  A bulletproof vest should be a bulletproof vest regardless of how well it stops bullets.  At least as far as the statute here goes.  As we don't want violent felons wearing any of 'em.

But the harsh truth is that we can't define a 'bulletproof vest' any more that we can define a 'knife' or a 'gun' or a 'billy club'.  The terms are unalterably imprecise.  That's the nature of human language.  It's something that we deal with all the time.  Both in the law and elsewhere.

Sometimes, that gives us serious reason for pause.  Like when we're worried that an innocent child waiting for a bus might be incarcerated for being a vagrant.

But other times it doesn't.  Like here.  When it's a violent felon saying that he should be let back out on the street because there was no proof that the bulletproof vest in his possession had actually been subjected to the relevant tests that its manufacturer would have to perform were it to be permitted to sell such equipment to a police officer.

About that, we care very little.  So the statute's not vague.  You knew it was a bulletproof vest.  You were a violent felon.  You're staying in jail.

Ironically enough, sometimes precedent is as vague as the statutes we invalidate for vagueness.  But that doesn't mean we can't explain and, truthfully, distinguish and rationalize the cases so as to come to achieve a result that we like.  When you're drinking and driving or wearing a bulletproof vest, it's on you.  When you're walking on the street or performing an abortion, it's on the state.

Conviction affirmed."

My opinion is shorter.  Maybe more direct.  But I think it encapsulates the truth behind what the Court of Appeal -- as well as other courts -- routinely do in practice.