BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                      



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          |SENATE RULES COMMITTEE            |                   AB 167|
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                                    CONSENT


          Bill No:  AB 167
          Author:   Cook (R), et al
          Amended:  6/2/11 in Senate
          Vote:     21

           
           SENATE GOVERNMENTAL ORG. COMMITTEE  :  12-0, 6/14/11
          AYES:  Wright, Anderson, Calderon, Cannella, Corbett, De 
            León, Evans, Hernandez, Padilla, Strickland, Wyland, Yee
          NO VOTE RECORDED:  Berryhill

           ASSEMBLY FLOOR  :  62-0, 4/14/11 - See last page for vote


           SUBJECT  :    California Stolen Valor Act

           SOURCE  :     Vietnam Veterans of America, California State 
          Council


           DIGEST  :    This bill expands existing provisions related to 
          forfeiture of elected office under the Federal Stolen Valor 
          Act, to additionally require that an elected officer, as 
          specified, forfeit office upon conviction of a crime 
          involving a false claim, with intent to defraud, that 
          he/she is a veteran or a member of the Armed Forces of the 
          United States.  In addition, characterizes these and 
          related provisions, as specified, as the "California Stolen 
          Valor Act."

           ANALYSIS  :    

           Existing Law 
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          1. Mandates that an officer forfeit office upon conviction 
             of designated crimes as specified in the Constitution 
             and laws of the California.  

          2. Requires that an elected officer, as specified, forfeit 
             his/her office upon conviction of a crime pursuant to 
             the federal Stolen Valor Act of 2005, as specified, that 
             involves a false claim of receipt of a military 
             decoration or medal described in that act.

          3. Provides that a person who falsely represents himself or 
             herself as a veteran or ex-serviceman of any war in 
             which the United States was engaged, in connection with 
             the soliciting of aid or sale or attempted sale of 
             property, is guilty of a misdemeanor.

          4. States that a person who falsely claims, or presents 
             himself/herself, to be a veteran or member of the Armed 
             Forces of the United States, with the intent to defraud, 
             is guilty of a misdemeanor.

          5. Mandates that a person who, orally, in writing, or by 
             wearing a military decoration, falsely represents 
             himself/herself to have been awarded a military 
             decoration, with the intent to defraud, is guilty of a 
             misdemeanor.  If the person committing the offense is a 
             veteran of the Armed Forces of the United States, this 
             offense is an infraction or a misdemeanor. 

          6. Deems a person who falsely represents himself/herself in 
             a manner as specified to be guilty of a misdemeanor or 
             infraction.

          7. Directs that the offenses, as specified, may be deemed 
             infractions, as specified, and explains that a 
             conviction for such an infraction is not grounds for 
             suspension, revocation or denial of a license, or for 
             revocation or probation or parole.

          8. Mandates that a person who, without authority, wears the 
             uniform or distinctive part thereof, or similar apparel, 
             of the Armed Forces of the United States or the Public 
             Health Service, shall be fined or imprisoned for up to 

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             six months.

          9. Penalizes a person who, with intent to deceive, wears 
             any military or official decoration of a nation with 
             which the United States is at peace, with a fine or 
             imprisonment for up to six months. 

          10.Demands that a person who knowingly wears, manufactures, 
             or sells a decoration or medal authorized by Congress 
             for the Armed Forces of the United States; a service 
             medal or badge awarded to members of such forces; the 
             ribbon, button, or rosette of any such badge, decoration 
             or medal; or a colorable imitation thereof, except when 
             authorized under regulations made pursuant to law, shall 
             be fined under this title, imprisoned not more than six 
             months, or both.  If the decoration or medal is a 
             Congressional Medal of Honor, the offender can be 
             imprisoned not more than one year, fined, or both

          11.Declares that a person who knowingly manufactures, 
             reproduces, sells or purchases for resale, either 
             separately or on or appended to, any article of 
             merchandise manufactured or sold; any badge,  medal, 
             emblem; other insignia or any colorable imitation 
             thereof of any veterans' organization incorporated by 
             enactment of Congress or of any organization formally 
             recognized by any such veterans' organization as an 
             auxiliary of such veterans' organization; knowingly 
             prints, lithographs, engraves or otherwise reproduces on 
             any poster, circular, periodical, magazine, newspaper, 
             or other publication; or circulates or distributes any 
             such printed matter bearing a reproduction of such 
             badge, medal, emblem, or other insignia or any colorable 
             imitation thereof, except when authorized under rules 
             and regulations prescribed by any such organization, 
             shall be fined under this title, imprisoned not more 
             than six months, or both.

          This bill expands existing provisions related to forfeiture 
          of elected office under the Federal Stolen Valor Act, to 
          additionally require that an elected officer, as specified, 
          forfeit office upon conviction of a crime involving a false 
          claim, with intent to defraud, that he/she is a veteran or 
          a member of the Armed Forces of the United States.  In 

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          addition, characterizes these and related provisions, as 
          specified, as the "California Stolen Valor Act."

           Background 
           
          Currently, California law requires that an elected officer 
          forfeit office upon conviction of a crime pursuant to the 
          federal Stolen Valor Act.  Additionally, under California 
          law, it is already a misdemeanor for a person to falsely 
          claim or present himself/herself as a veteran or member of 
          the Armed Forces with intent to defraud.  This bill merely 
          expands existing standards concerning forfeiture of elected 
          office to add that forfeiture be required upon conviction 
          of such a misdemeanor.  This bill also characterizes these 
          provisions, and certain related provisions, as specified, 
          as the California Stolen Valor Act.

           Constitutionality of Federal Stolen Valor Act  .  The federal 
          Stolen Valor Act's constitutionality has been challenged.  
          A law that imposes a content-based restriction on pure 
          speech generally is subject to strict scrutiny and cannot 
          stand unless it is narrowly tailed to serve a compelling 
          government interest.  The United States has argued that the 
          federal Stolen Valor Act's restrictions on speech should 
          not be subjected to strict-scrutiny because, as false 
          factual speech, it falls within those categories of speech 
          that may be restricted without Constitutional issue.  
          However, the Ninth Circuit Court of Appeals held that false 
          factual speech is not in itself a category of unprotected 
          speech, and that the speech restricted by Stolen Valor Act 
          Sections 704(b) and (c) does not fall into any of the 
          existing categories.  The court went on to determine 
          Sections 704(b) and (c) to be unconstitutional because they 
          criminalize pure speech, without any other actions, and, as 
          content-based speech restrictions, are not narrowly 
          tailored to achieve a compelling governmental interest.  A 
          Colorado district court came to the same conclusion.  
          Ý  United States v. Strandlof  , (D.Colo. July 16, 2010, Crim. 
          Case No. 09-cr-00497-REB) 2010 U.S. Dist. LEXIS 82662, 
          *22.]  Although, a Virginia district court concluded that 
          Section 704(b) of the federal Stolen Valor Act is 
          constitutional Ý  United States v. Robbins , (W.D.Va. Jan. 3, 
          2011, No. 2:10CR00006) 2011 U.S. Dist. LEXIS 190, *15], the 
          Ninth Circuit Court's decision is binding in California.  

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          These cases do not directly impact the constitutionality of 
          this bill, but instead serve to illustrate the potential 
          constitutional problems in the underlying law.  Given the 
          discrepancies in these opinions, it is likely that the 
          issue of the federal Stolen Valor Act's constitutionality 
          will be taken to the United States Supreme Court. 

          Unlike the federal Stolen Valor Act, the provisions of 
          California law upon which the California Stolen Valor Act 
          and the requirements for which office forfeiture are based 
          additionally require that the actor make such false 
          statements, or wear military decoration, with the intent to 
          defraud.  Thus, these regulations do not punish the 
          fabrication alone; to do so would create a presumably 
          unconstitutional content-based regulation.  This law's 
          language correctly punishes the criminal act of intending 
          to defraud by claiming false receipt of a military award or 
          membership in the Armed Forces.

           Previous Legislation
           
          AB 1829 (Cook), Chapter 366, Statutes of 2010, increases 
          the penalty from an infraction to a misdemeanor (or in the 
          case where the person committing the offense is a veteran 
          of the Armed Forces of the United States, an infraction or 
          a misdemeanor, as specified) for a person who, orally or in 
          writing, or by wearing a military decoration, falsely 
          represents himself/herself to have been awarded a military 
          decoration, with the intent to defraud.  Defined "military 
          decoration" to be a decoration or medal from the Armed 
          Forces of the United States, California National Guard, 
          State Military Reserve, or Naval Militia, or a service 
          medal or badge awarded to the members of those forces, or 
          the ribbon, button, or rosette of that badge, decoration, 
          or medal, or a colorable imitation of that item.

          SB 1482 (Correa), Chapter 118, Statutes of 2008, mandates 
          that an elected officer of a city, county, city and county, 
          or district in California, forfeit his/her office upon 
          conviction of a crime pursuant to the federal Stolen Valor 
          Act, which involves a false claim of receipt of a military 
          decoration or medal described in that act.


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          AB 282 (Cook), Chapter 360,  Statutes of 2007, creates an 
          infraction for a person to falsely represent 
          himself/herself, verbally or in writing, to have been 
          awarded a decoration or medal from the Armed Forces of the 
          United States, the California National Guard, State 
          Military Reserve, or Navel Militia; a service medal or 
          badge awarded to the members of such forces; a ribbon, 
          button, or rosette of such a badge, decoration or medal; 
          or, a colorable imitation of such item, with the intent to 
          defraud.

          AB 787 (DeVore), Chapter 457, Statutes of 2006, provides 
          that a person who falsely claims, represents or presents 
          himself/herself to be a veteran or member of the Armed 
          Forces of the United States, with the intent to defraud, is 
          guilty of a misdemeanor.  Face-to-face solicitations 
          involving less than $10 are exempt from prosecution.

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  No   
          Local:  No

           SUPPORT :   (Verified  6/14/11)

          Vietnam Veterans of America, California State Council 
          (source)
          American Legion-Department of California
          AMVETS-Department of California
          California Association of County Veterans Service Officers
          California State Commanders Veterans Council
          Military Officers Association of America-California Council 
          of Chapters
          Military Order of the Purple Heart- Dept. of California
          Student Veterans of California

           ARGUMENTS IN SUPPORT  :    According to the author's office, 
          this bill is intended "to give the state another tool 
          beside the federal Stolen Valor Act by establishing the 
          California Stolen Valor Act which would prosecute those 
          using false claim of military service to get elected in 
          office." 

          "Current Federal Law - Stolen Valor Act of 2005:  President 
          Bush signed S. 1998 (Conrad-ND) (PL 109-437) on December 
          20, 2006 to broaden the provisions of federal law that 

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          prohibited the unauthorized wearing, manufacturing or 
          selling of Medal of Honor medals.  Under the new law, these 
          prohibitions also apply to false claims about receiving 
          medals and expanding the scope beyond only the Medal of 
          Honor."


           ASSEMBLY FLOOR  : 
          AYES: Achadjian, Allen, Ammiano, Atkins, Beall, Bill 
            Berryhill, Block, Blumenfield, Bonilla, Bradford, 
            Brownley, Buchanan, Charles Calderon, Campos, Carter, 
            Cedillo, Chesbro, Cook, Davis, Dickinson, Donnelly, Eng, 
            Feuer, Fletcher, Fong, Fuentes, Furutani, Gatto, Gordon, 
            Hagman, Halderman, Hall, Hayashi, Hill, Huber, Hueso, 
            Huffman, Jeffries, Lara, Bonnie Lowenthal, Ma, Mansoor, 
            Miller, Mitchell, Monning, Nestande, Nielsen, Norby, Pan, 
            Perea, V. Manuel Pérez, Portantino, Silva, Skinner, 
            Smyth, Solorio, Swanson, Torres, Valadao, Wieckowski, 
            Yamada, John A. Pérez
          NO VOTE RECORDED: Alejo, Butler, Conway, Galgiani, Garrick, 
            Gorell, Grove, Harkey, Roger Hernández, Jones, Knight, 
            Logue, Mendoza, Morrell, Olsen, Wagner, Williams, Vacancy


          PQ:do  6/14/11   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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