BILL ANALYSIS Ó
AB 1706
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Date of Hearing: March 15, 2016
Consultant: Matt Dean
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
AB
1706 (Chávez) - As Amended March 8, 2016
SUMMARY: Adds to the list of misdemeanors punishable under the
California Stolen Valor Act. Specifically, this bill:
1)Updates the California Stolen Valor Act to require a
conviction under the federal Stolen Valor Act of 2013 rather
than the 2005 version, which the U.S. Supreme Court ruled
unconstitutional.
2)Clarifies the intent requirements for misdemeanors punishable
under the California Stolen Valor Act.
3)Defines "district" as "any agency of the state formed pursuant
to general law or special act, for the local performance of
governmental or proprietary functions within limited
boundaries for purposes of the California Stolen Valor Act."
4)Defines "tangible benefit" as "financial remuneration, an
effect on the outcome of a criminal or civil court proceeding,
or any benefit relating to service in the military that is
provided by a federal, state, or local governmental entity for
purposes of the California Stolen Valor Act."
5)Adds the California National Guard, the State Military
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Reserve, the Naval Militia, the national guard of any other
state, or any other reserve component of the Armed Forces of
the United States to the list of military service branches
covered by the California Stolen Valor Act.
6)Adds to the list of misdemeanors punishable under the
California Stolen Valor Act as any person who:
a) Forges documentation reflecting the awarding of any
military decoration that he or she has not received for the
purposes of obtaining money, property, or other tangible
benefit;
b) Wears a uniform or military decoration authorized for
use by the members or veterans of those forces for the
purposes of obtaining money, property, or receiving a
tangible benefit;
c) Knowingly utilizes falsified military identification for
the purposes of obtaining money, property, or receiving a
tangible benefit'
d) Knowingly, with the intent to impersonate, for the
purposes of promoting a business, charity, or endeavor,
misrepresents himself or herself as a member or veteran of
the Armed Forces of the United States, the California
National Guard, the State Military Reserve, or the Naval
Militia by wearing the uniform or military decoration
authorized for use by the members or veterans of those
forces; and
e) Knowingly, with the intent to gain an advantage for
employment purposes, misrepresents himself or herself as a
member or veteran of the Armed Forces of the United States,
the California National Guard, the State Military Reserve,
or the Naval Militia by wearing the uniform or military
decoration authorized for use by the members or veterans of
those forces.
EXISTING LAW:
1)States that it is a misdemeanor for any person to falsely
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represent himself or herself as a veteran when soliciting aid
or selling property. (Pen. Code, § 532b, subd. (a).)
2)States that it is a misdemeanor for any person to falsely
represent himself or herself as a veteran in an attempt to
defraud. (Pen. Code, § 532b, subd. (b).)
3)States that it is a misdemeanor for any person to falsely
represent himself or herself as a recipient of any "military
decoration" in an attempt to defraud. If the individual is a
veteran of any U.S. war, the individual is guilty of either an
infraction or a misdemeanor. (Pen. Code, § 532b, subd. (c)(1)
& (2).)
4)States that the California Stolen Valor Act does not apply to
face-to-face solicitations involving less than ten dollars.
(Pen. Code, § 532b, subd. (d).)
5)Defines "military decoration" for the purpose of this
subdivision as" any decoration or medal from the Armed Forces
of the United States, the California National Guard, the State
Military Reserve, or the Naval Militia, or any colorable
imitation of that item." (Pen. Code, § 532b, subd. (c)(3).)
6)States that any elected officer of the state or a city,
county, city and county or district in this state forfeits his
or her office upon the conviction of a crime under the
California Stolen Valor Act. (Gov. Code, § 3003, Pen. Code, §
532b.)
7)States that any elected officer of the state or a city,
county, city and county or district in this state forfeits his
or her office upon the conviction of a crime under the federal
Stolen Valor Act of 2005 if the crime involves a false claim
to a "military decoration" or medal described in that Act.
(Gov. Code, § 3003, 18 U.S.C. § 704.)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "It is important
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to create conformity between state and federal law to ensure
elected officials are held accountable to be honest about
their service or lack thereof."
2)Background: Currently, California requires that an elected
officer forfeit their office upon conviction of a crime
pursuant to either the federal Stolen Valor Act of 2005 or the
California Stolen Valor Act. The federal Stolen Valor Act was
updated in 2013 after the Supreme Court ruled it was
unconstitutional. (See United States v. Alvarez (2012) 132
S.Ct. 2537, 2556 [183 L.Ed.2d 574].) This bill updates the
California Stolen Valor Act by requiring a conviction pursuant
to the federal Stolen Valor Act of 2013.
This bill also adds new misdemeanors to the California Stolen
Valor Act and changes the intent requirement for a conviction
under the Act to also mirror federal law.
3)First Amendment: The First Amendment of the United States
Constitution protects the people's right to free speech from
Congressional action. (U.S. Const., 1st Amend.) State action
restricting free speech is likewise prohibited by the Due
Process Clause of the Fourteenth Amendment. (First Nat. Bank
of Boston v. Bellotti (1978) 435 U.S. 765, 779.) Not all
speech is protected, but categories of unprotected speech are
strictly limited. For example, child pornography, obscenity
and criminal threats are considered unprotected speech. (U.S.
v. Stevens (2010) 559 U.S. 460, 468-469.) If speech does not
fall into one of these strictly defined categories, then that
speech enjoys at least some level of First Amendment
protection.
The threshold question in determining what level of protection
to give speech is whether the regulation is content-based or
content-neutral. This reflects the understanding of the U.S.
Supreme Court that not all speech serves the purposes for
which the First Amendment was adopted. Specifically, the
Court has said the highest rung of First Amendment protection
is reserved for discussion of public issues and debate over
the qualifications of candidates. (McIntyre v. Ohio Elections
Comm'n (1995) 514 U.S. 334, 346-47.) For this reason,
restrictions of speech based on the content of that speech
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receive the strictest level of scrutiny by the courts. Such a
content-based speech restriction only survives strict scrutiny
if the government shows a compelling interest in regulating
such speech, and the regulative means employed must be the
least restrictive means available to achieve the government's
ends. For content-neutral restrictions of speech, the less
restrictive intermediate scrutiny test applies. (Ward v. Rock
Against Racism (1989) 491 U.S. 781, 798-800.) Under
intermediate scrutiny, the government's interest need only be
legitimate, and their means chosen narrowly tailored so as to
be reasonably necessary to achieve the government's ends. In
contrast to strict scrutiny, the means chosen need not be the
least restrictive means. (Id. at 800.)
The Supreme Court has ruled on the speech implicated in this
bill when it examined the federal Stolen Valor Act in the case
of United States v. Alvarez, supra, 132 S.Ct. 2537. The
Supreme Court's ruling on the federal Stolen Valor Act centers
on the language used in the statute. The relevant provision
of the federal Stolen Valor Act of 2005 reads:
"Whoever falsely represents himself or herself, verbally or in
writing, to have been awarded any decoration or medal
authorized by Congress for the Armed Forces of the United
States, any of the service medals or badges awarded to the
members of such forces, the ribbon, button, or rosette of any
such badge, decoration, or medal, or any colorable imitation
of such item shall be fined under this title, imprisoned not
more than six months, or both."
The plurality -that is, four Justices- held this provision
content-based and therefore subject to strict scrutiny.
(Alvarez, supra, 132 S.Ct. at p. 2543.) Critical to their
holding is that the statute prohibited false claims without
any requirement of cognizable harm as a result of the false
claims. The plurality stated that the government's interest
is compelling, but that other means exist to achieve their
ends without restricting protected speech. In particular, the
Court held the combination of a database for medal recipients
coupled with public condemnation would serve just as well to
deter false claims regarding military service. (Alvarez,
supra, at pp. 132 S.Ct. at pp. 2550-2551.) Because
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alternative means exist to address the government's ends, the
Court held the statutory provision unconstitutional. (Ibid.)
The concurring Justices -here, two Justices- applied
intermediate scrutiny because they found the false speech to
be of limited value. (Alvarez, supra, 132 S.Ct. at p. 2552.)
The false claims at issue here were easily verifiable, and
therefore unlikely to aid in the debate of public issues which
is the heart of the First Amendment's speech protections.
However, the Court still held the statutory provision
unconstitutional because of its potential to chill protected
speech. Critical to the concurring Justices was the lack of
an intent to cause some legally cognizable harm, such as
obtaining unearned benefits from the VA or unearned employment
preferences. (Id. at pp. 2555-2556.)
The dissent would have upheld the statute as constitutional.
(Alvarez, supra, 132 S.Ct. at p. 2557.)
The language of the federal Stolen Valor Act has since been
amended to reflect the Court's interpretation. An intent to
cause some legally cognizable harm has been added. As of now,
there has not been a challenge to the federal Act. Moreover,
the Court specifically addressed the receipt of unearned
benefits and the impacting of judicial proceedings in its
holding in Alvarez and stated that such restrictions are
likely constitutional. This bill's language largely mirrors
the language of the federal Act.
4)Argument in Support: According to the American G.I. Forum of
California and the AMVETS- Department of California, the
co-sponsors of this bill, "We do not believe elected officials
should benefit by lying about their military service and that
they should be removed from office."
5)Prior Legislation:
a) AB 167 (Cook), Chapter 69, Statutes of 2011, requires
that elected officers forfeit their office upon conviction
of any of the crimes specified in the California Stolen
Valor Act in addition to the federal Stolen Valor Act.
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b) AB 265 (Cook), Chapter 93, Statutes of 2009, expands the
provision requiring local elected officers to forfeit
office upon conviction of a crime pursuant to the federal
Stolen Valor Act to include elected state officers.
c) SB 1482 (Correa), Chapter 118, Statutes of 2008,
provides that an elected officer of a city, county, city
and county, or district in this state forfeits his or her
office upon the conviction of a crime pursuant to the
federal Stolen Valor Act, that involves a false claim of
receipt of a military decoration or medal described in that
Act.
REGISTERED SUPPORT / OPPOSITION:
Support
American G.I. Forum of California (Sponsor)
AMVETS-Department of California (Sponsor)
American Legion - Department of California
California Association of County Veterans Service Officers
California State Commanders Veterans Council
Military Officers Association of America, California Council of
Chapters
VFW-Department of California
Vietnam Veterans of America-California Council
Opposition
None
Analysis Prepared
by: Matt Dean / PUB. S. / (916) 319-3744
AB 1706
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