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The law on body armor in Wisconsin The definitive guide

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Overview of Wisconsin Statute 941.291: Possession Of Body Armor

Authored by: Peter Heyne

Wisconsin statutes section 941.291 regulates the possession of body armor. (There are also two applicable federal laws: the first is the standalone crime for possessing body armor after a violent felony conviction, and the second is the penalty enhancer of at least 2 levels if a person wears body armor while committing a crime of violence or drug trafficking. [1])

This article has four parts. First, it provides a brief historical context to the Wisconsin statute; then second, covers the qualifying prior “violent felony” convictions; third, lays out the three exemptions; and fourth, concludes with a definitional analysis of what “body armor” means.

1. History

In the mid-to-late 1990s, two high-profile shoot-outs in California between outgunned police and civilians wearing body armor changed the legal landscape.

In the first incident, on Nov. 14, 1994, in San Francisco police officer Jim Guelff, armed only with his six-shot service revolver, was fatally shot after he responded to a weapons call; the gunman had an automatic weapon (an Uzi) with thousands of rounds of ammunition and was wearing a flak jacket and a bulletproof vest. [2] By one account the gunman had “full body armor and a Kevlar helmet.” [3] In the second incident, on February 28, 1997, in North Hollywood two bank robbers, firing automatic weapons and wearing heavy body armor, held off police for 44 minutes. [4] The police handguns were ineffective against the armor, especially at a distance. [5]

In response, Congress and many states pushed for legislation to prevent those with violent felony convictions from possessing body armor. 2001 Wisconsin Act 95 (published May 6, 2002) created Section 941.291. [6]

2. Qualifying prior “violent felony” convictions

Since its initial passage, the only changes to the statute have been to add additional offenses that qualify as “violent felonies.” For example, the most recent change came via 2021 Wisconsin Act 76 (published August 7, 2021), which created section 940.198 Physical abuse of an elder person, and then added this new crime to the list of “violent felonies” under section 941.291.

The list of qualifying offense includes felonies in chapter 940 (crimes against life and bodily security), 941 (crimes against public health and safety), 943 (crimes against property), 946, and 948 (crimes against children). [7]

There is a generally similar list of qualifying “violent felony” offenses in the immediately preceding statute, section 941.29 Possession of a firearm. [8] (If the prior conviction was for a “violent felony” and the person meets other criteria (e.g., possesses the firearm while still being on probation for that violent felony; or within 5 years of completing the sentence for that violent felony), then the penalty for possessing a firearm is enhanced. The trial court must impose a prison sentence, with a mandatory minimum initial confinement in prison of 3 years. [9])

With the legislative priorities clear—people with violent felonies should not possess firearms or body armor—it would stand to reason that both lists of “violent felonies” would match. However, they do not. While there is much overlap, each statute has unique qualifying offenses.

For example, section 941.29 alone defines as “violent felony” section 940.235 Strangulation and suffocation; 940.302 Human trafficking; 941.2905 Straw purchasing of firearms; 941.292 Possession of a weaponized drone; and 948.051 Trafficking of a child. Thus, a human or child trafficker can legally possess body armor.

Likewise, whereas section 941.291 includes all four versions of 941.327 Tampering with household products (even the least serious, only a Class I felony), section 941.29 includes only the two most serious versions (s. 941.327(2)(b)3. and 4.). A person could commit the least serious offense of tampering with household products, and when later caught with a firearm, evade the mandatory minimum 3-year prison term; but he could not possess body armor.

And whereas s. 941.291 includes s. 941.29 as a qualifying offense, it is not a two-way street: s. 941.29 does not count s. 941.291 as a qualifying prior.

Section 941.291 has its own unique “violent felonies,” all financial crimes. The list is extensive: s. 943.81 Theft from a financial institution, s. 943.82 Fraud against a financial institution, s. 943.83 Loan fraud, s. 943.85 Bribery involving a financial institution, s. 943.86 Extortion against a financial institution, s. 943.88 Organizer of financial crimes, s. 943.89 Mail fraud, s. 943.90 Wire fraud against a financial institution; or if the victim is a financial institution, a felony, or the solicitation, conspiracy, or attempt to commit a felony under s. 943.84 (1) or (2) Transfer of encumbered property. It remains unclear how and why any of these factually non-violent white-collar crimes legally qualify as “violent,” to require a ban on body armor. Is a corrupt financier who bribes a bank officer or engages in mail or wire fraud the kind of person whom society reasonably needs to fear will don a bulletproof vest so he can hold off police in a bloody bank robbery shootout? In this vein, one might as well bar white-collar criminals from possessing battle-axes and chain mail.

3. Exemptions

A person convicted, adjudicated delinquent (as a juvenile), or found not guilty by reason for mental disease or defect for a “violent felony” cannot possess body armor. [10] A first offense is a Class E felony; a second or subsequent offense is a Class D felony. [11] If that person has been pardoned for the prior crime, though, there is no criminal liability. [12]

Beyond the pardon exception just explained, there are three classes of exemptions possible. The first category covers judicially granted exceptions for the general public; these are matters of public record. The second and third categories cover people in specific criminal justice situations (police witness/informant, or prisoner), at the sole discretion of law enforcement/corrections (and not matters of public record).

The first class of exemptions possible includes the general public, who must petition the court for a full or partial exemption. [13] The petitioner must meet two criteria: “1. The person has a reasonable need to possess body armor to ensure his or her personal safety, to earn a livelihood, or as a condition of employment” and “2. The person is likely to use the body armor in a safe and lawful manner.” [14] The petitioner must file a written motion in the circuit court for the county in which the person will possess the body armor; he or she must also send a copy of the motion to that county’s district attorney. [15] The district attorney shall make a reasonable attempt to contact the county sheriff and, if applicable, the local chief of police. [16] When deciding the motion, the circuit court can deny, grant in full, or grant in part, for example, allowing possession of body armor only under certain specified circumstances or in certain locations or both. [17] The court shall consider the person’s character, including the person’s criminal record, the totality of the person’s circumstances, and any relevant evidence of the person's character and circumstances, including any relevant evidence submitted by the district attorney who received the copy of the motion. [18] The order granting a full or partial exemption must be in writing, filed with the clerk of courts, and sent to the sheriff and local chief of police. [19] The person granted the exemption shall carry a copy of the order of exemption at all times during which he or she is in possession of body armor. [20]

In the second class of exemptions possible is the “protected witness or informant.” [21] Law enforcement can approve body armor for a person who has furnished or is furnishing information (as a witness), or is providing or has provided assistance (as a confidential informant), if there is reason to believe that that person may be in danger of suffering death or great bodily harm because of their work as witness or informant. For obvious public safety reasons, though law enforcement must keep a written record of the exemption, this exemption is not subject to open records law request (Wisconsin Statutes section 19.35(1)). [22] However, the law enforcement agency may disclose the written record to another law enforcement agency or the district attorney, if the other law enforcement agency or the district attorney is investigating or prosecuting an alleged violation of the body armor statute.

The third class of exemptions possible is the “protected prisoner.” A person, in actual custody of law enforcement or a correctional officer, can wear body armor at the request or direction of the law enforcement officer or correctional officer. [23]

4. Definitions: What is Body Armor?

Having studied the brief history of the law, the qualifying prior offenses, and the exemptions, one must however go to the beginning and define the key term. What is “body armor” that the law prohibits? In contrast to related law from Congress and other states, Wisconsin’s definition is imprecise, so if the item is not a bulletproof vest, there could be a constitutional challenge of void-for-vagueness.

Section 941.291 defines “body armor” as “any garment that is designed, redesigned, or adapted to prevent bullets from penetrating through the garment.” [24] Two points bear note.

First, this definition focuses on bullets. It covers bulletproof vests, not stab vests or other personal protective gear like a bomb disposal suit. Likewise, a person with a “violent felony” conviction who enjoys cosplay or LARP (live action role play) has nothing to fear when donning either fake armor (such as made from EVA foam), or real metal armor. Both the convicted armed bank robber and the white-collar wire fraudster can still suit up in full plate armor at the local Renaissance Faire.

Second, the key term “garment” is not defined, in the statute or relevant case law. Indeed, there is no citable precedent on s. 941.291 at all. Nor does there appear to be a definition for “garment” elsewhere in Wisconsin statutes or case law, criminal or civil. Under a common understanding of the term, a bulletproof vest is a garment, so it would fall under s. 941.291.

But what about other protective items? Without a clear definition of “garment,” if a person wears a protective item that is not a bulletproof vest, there could be issues with the two intertwined prongs of the Due Process void-for-vagueness test: (1) giving fair notice to the average person to know what not to do and (2) having objective enforcement by police, prosecutors, judges, and juries. [25] What if a person wears a Kevlar helmet? A helmet is not a garment, as the word is commonly understood. Likewise, what if a person wears reinforced arm guards or gloves? These items are “gear” or “accessories,” not garments.

Before their state statute was later revised, California appellate courts held that the body armor prohibition was unconstitutionally void for vagueness, because it does not provide fair notice of which protective body vests constitute the body armor made illegal by the statute. [26] Now the revised California statute prohibiting persons with convictions for violent felonies from possessing body armor defines “body armor” as “any bullet-resistant material intended to provide ballistic and trauma protection for the person wearing the body armor” (emphasis added). [27] “Material” is much broader than “garment,” and can include not just bulletproof vests but all sorts of protection for other body parts.

Likewise, in contrast to the Wisconsin statute, the relevant federal law prohibiting possessing body armor by persons with certain felony convictions is broader and clearer. It states, “[t]he term ‘body armor’ means 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” (emphasis added). [28] A product that is a body covering could include more than just bulletproof vests, but also helmets, and armor for neck, arms and hands, groin, legs and feet, etc..

To avoid void-for-vagueness issues, section 941.291 should define and refine its terms, such as replacing “garment” with “any personal protective material or body covering” intended to protect against gunfire.

As a coda, for those interested in the industry standards for body armor, specifically vests, the National Institute of Justice (NIJ), the research, development and evaluation agency of the U.S. Department of Justice, sets nationwide standards for body armor. [29]

The first of two published standards is NIJ Standard-0101.06, Ballistic Resistance of Body Armor. [30] Under this standard, personal body armor is classified into five types (IIA, II, IIIA, III, IV) by level of ballistic performance. [31] For example, Type II is tested against 9 mm and .357 Magnum bullets; Type IIIA is tested against .357 SIG and .44 Magnum bullets. Type III is tested against 7.62 mm rifle bullets, and Type IV against .30 caliber Armor-Piercing rifle bullets.

The second of the two published standards is NIJ Standard–0115.00, Stab Resistance of Personal Body Armor. [32] Under this standard, personal body armor classified into one of two distinct protection classes depending upon the type of threat environment. Within each threat protection class, the armor is further classified into one of three protection levels. [33] The “Edged Blade” class is intended to deal with threats that might be expected on “the street” from high quality, commercially machined edged knife blades. [34] In contrast, the “Spike” class is intended to deal with threats that might be expected in a corrections environment. Lower quality knife blades and spike style weapons that have been improvised from other materials typically characterize these threats. [35]

Citations

  1. [1] 18 U.S. Code §§ 931 and 924(a)(7), available at https://www.law.cornell.edu/uscode/text/18/931 (crime of violence is defined in 18 U.S. Code § 16); 34 U.S. Code § 10534, available at https://www.law.cornell.edu/uscode/text/34/10534
  2. [2] See https://www.nytimes.com/1994/11/15/us/25-minutes-of-terror-in-san-francisco.html ; https://www.latimes.com/archives/la-xpm-1997-sep-18-mn-33653-story.html
  3. [3] Scott Walker, No Body Armor for Violent Felons: Chapter 21 Reinstates the James Guelff Act, 42 McGeorge L. Rev. 650 (2011) (citing California Assembly Committee on Public Safety, Committee Analysis of AB 1707, at 3 (Mar. 24, 1998)).
  4. [4] See https://www.latimes.com/local/lanow/la-me-ln-north-hollywood-shootout-revisited-20170223-htmlstory.html (44 minutes, not 1 hour as the Wisconsin State Rep. had testified in favor of the law change). (See the Los Angeles Police Museum for a photo of the shooters’ heavy arms and armor on mannequins. https://www.laphs.org/images/gallery/16.jpg).
  5. [5] Id.
  6. [6] See, e.g., the testimony of State Rep. John LaFave, in the legislative drafting materials online at Part one at https://docs.legis.wisconsin.gov/2001/related/public_hearing_records/sc_jcacfr_judiciary_consumer_affairs_and_campaign_finance_reform/bills_resolutions/01hr_sc_jcacfr_ab0157_pt01.pdf and part two at https://docs.legis.wisconsin.gov/2001/related/public_hearing_records/sc_jcacfr_judiciary_consumer_affairs_and_campaign_finance_reform/bills_resolutions/01hr_sc_jcacfr_ab0157_pt02.pdf
  7. [7] Wis. Stat. § 941.291(1)(b). (The list covers both Wisconsin offenses and also convictions of out-of-state that would qualify as a violent felony if committed in this state.) “Violent felony" means any felony, or the solicitation, conspiracy, or attempt to commit any felony, under s. 943.23 (1m) or (1r), 1999 stats., or s. 940.01, 940.02, 940.03, 940.05, 940.06, 940.08, 940.09, 940.10, 940.19, 940.195, 940.198, 940.20, 940.201, 940.203, 940.21, 940.225, 940.23, 940.285 (2), 940.29, 940.295 (3), 940.30, 940.305, 940.31, 940.43 (1) to (3), 940.45 (1) to (3), 941.20, 941.26, 941.28, 941.29, 941.30, 941.327, 943.01 (2) (c), 943.011, 943.013, 943.02, 943.04, 943.06, 943.10 (2), 943.23 (1g), 943.32, 943.81, 943.82, 943.83, 943.85, 943.86, 943.87, 943.88, 943.89, 943.90, 946.43, 947.015, 948.02 (1) or (2), 948.025, 948.03, 948.04, 948.05, 948.06, 948.07, 948.08, 948.085, or 948.30; or, if the victim is a financial institution, as defined in s. 943.80 (2), a felony, or the solicitation, conspiracy, or attempt to commit a felony under s. 943.84 (1) or (2).
  8. [8] Wis. Stat. § 941.29(1g)(a). “Violent felony" means any felony under s. 943.23 (1m), 1999 stats., or s. 943.23 (1r), 1999 stats., this section, or s. 940.01, 940.02, 940.03, 940.05, 940.06, 940.08, 940.09, 940.10, 940.19, 940.195, 940.198, 940.20, 940.201, 940.203, 940.21, 940.225, 940.23, 940.235, 940.285 (2), 940.29, 940.295 (3), 940.30, 940.302, 940.305, 940.31, 940.43 (1) to (3), 940.45 (1) to (3), 941.20, 941.26, 941.28, 941.2905, 941.292, 941.30, 941.327 (2) (b) 3. or 4., 943.02, 943.04, 943.06, 943.10 (2), 943.23 (1g),943.32, 943.87, 946.43, 948.02 (1) or (2), 948.025, 948.03, 948.04, 948.05, 948.051, 948.06, 948.07, 948.08, 948.085, or 948.30.
  9. [9] Wis. Stat. § 941.29(4m)
  10. [10] Wis. Stat. § 941.291(2)(a)-(e)
  11. [11] Wis. Stat. § 941.291(3)(a) and (b), respectively.
  12. [12] Wis. Stat. § 941.291(2)(a) and (b).
  13. [13] Wis. Stat. § 941.291(4)
  14. [14] Wis. Stat. § 941.291(4)(a)1.-2.
  15. [15] Wis. Stat. § 941.291(4)(b)
  16. [16] Id.
  17. [17] Wis. Stat. § 941.291(4)(c)
  18. [18] Id.
  19. [19] Wis. Stat. § 941.291(4)(d)
  20. [20] Id.
  21. [21] Wis. Stat. § 941.291(5m)(5m)  Exemption based on request by certain witnesses and informers. The text is too long to include here; see the full language for specifics.
  22. [22] Id.
  23. [23] Wis. Stat. § 941.291(6) Exemption from prohibition for certain prisoners. A person who is prohibited from possessing body armor under sub. (2) may wear body armor if he or she is in the actual custody of a law enforcement officer, as defined in s. 165.85 (2) (c), or a correctional officer, as defined in s. 102.475 (8) (a), and is wearing the body armor at the request or direction of the law enforcement officer or correctional officer.
  24. [24] Wis. Stat. § 941.291(1)(a)
  25. [25] State v. Muehlenberg, 118 Wis. 2d 502, 507, 347 N.W.2d 914, 916 (Ct. App. 1984)
  26. [26] People v. Saleem, 102 Cal. Rptr. 3d 652, 655 (Ct. App. 2009)
  27. [27] Cal. Penal Code § 16288 (West)
  28. [28] 34 U.S. Code § 10534(c)(1)
  29. [29] https://nij.ojp.gov/topics/articles/body-armor-performance-standards
  30. [30] https://nij.ojp.gov/library/publications/ballistic-resistance-body-armor-nij-standard-010106
  31. [31] https://www.ojp.gov/pdffiles1/nij/223054.pdf p.3
  32. [32] https://nij.ojp.gov/library/publications/stab-resistance-personal-body-armor-nij-standard-011500
  33. [33] https://www.ojp.gov/pdffiles1/nij/183652.pdf p.1. For both Edged Blade and Spike classes, the lowest of the three protection levels protects against low energy threats with a strike energy of 24 Joules (J); the second level, against medium energy threats with a strike energy of 33 J; the third level, against high energy threats with a strike energy of 43 J. Id. at p.3
  34. [34] Id. at p.2
  35. [35] Id.

Article courtesy of Attorney Peter R. Heyne

In Wisconsin, how long does a Body Armor charge stay on your record?

Owning just 1 bullet proof vest could violate Wisconsin laws against owning body armor, and if charged of body armor possession, it could be on your record for life.

A charge for possession of body armor by a convicted felon in Wisconsin could include wearing, owning or having bulletproof clothing on your person or property, including:

  • Bulletproof vests
  • Bulletproof jackets
  • Bulletproof helmets
  • Bulletproof face masks
  • Bulletproof pants
  • Bulletproof shirts

This charge has been rarely enforced in the state of Wisconsin but you could catch a charge for this. An experienced criminal defense attorney can speak to the likelihood of beating your charge and your best options for defending yourself.

When is it not legal to possess body armor?

According to Wisconsin Statute 941.291, you cannot legally possess body armor if you have been previously convicted of a felony (or if they were found not guilty of a felony by reason of insanity.)

What is considered body armor?

Body armor is any garment that is designed, redesigned, or adapted to prevent bullets from penetrating through the garment.

Is it legal to buy body armor in Wisconsin?

As long as you have not been convicted of a felony, you can buy and use body armor.

Can a felon own body armor in Wisconsin?

No. If you have been convicted of a felony in Wisconsin, you cannot legally buy or own body armor.

What are the consequences for illegally possessing body armor?

Your 1st offense would be considered a Class E felony, where you can face 15 years in prison. Your 2nd offense would be considered a Class D felony, where you can face 25 years in prison.

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