BILL ANALYSIS Ó AB 1706 Page 1 Date of Hearing: March 29, 2016 ASSEMBLY COMMITTEE ON VETERANS AFFAIRS Jacqui Irwin, Chair AB 1706 (Chávez) - As Amended March 8, 2016 SUBJECT: Military fraud 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 AB 1706 Page 2 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, AB 1706 Page 3 or the Naval Militia by wearing the uniform or military decoration authorized for use by the members or veterans of those forces. EXISTING FEDERAL LAW: Title 18 United States Code Section 704 States that, "Whoever, with intent to obtain money, property, or other tangible benefit, fraudulently holds oneself out to be a recipient of a decoration or medal described in subsection ? shall be fined under this title, imprisoned not more than one year, or both." EXISTING STATE LAW: 1)States that it is a misdemeanor for any person to falsely 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).) AB 1706 Page 4 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: Author's Statement: According to the author, "It is important to create conformity between state and federal law to ensure elected officials are held accountable to be honest about their service or lack thereof." This bill makes changes to the California Stolen Valor Act to reflect the United States Supreme Court's ruling on the 2005 federal Stolen Valor Act. The current, 2013 federal act prohibits fraudulently wearing medals or other decorations with the intent to obtain money, property, or other tangible benefit. The underlying policy is that we value military service and sacrifice, often shown by military medals and decorations, extremely highly as a Nation. While we also value freedom of speech highly as a country, indeed as a fundamental principle of the Nation; with the federal Stolen Valor Act we choose to restrict and criminalize speech that uses military medals and decorations as currency, influence or leverage to obtain a tangible benefit. Existing California law and policy are grounded in the same AB 1706 Page 5 general idea that it should be a crime to misrepresent military service for the purpose of obtaining a benefit. California law, however, already calls out more instances of prohibited speech than the federal code and this bill makes additions to the existing list of prohibited conduct. The additional acts are set forth below; each section either arguably describes a situation in which a tangible benefit is inherent or the section includes language (omitted below) which is intended to explicitly add a requirement that the act be done to obtain money, property, or other tangible benefit in conformity with United States Supreme Court rulings. Paraphrasing, the prohibited acts in California should this bill become law are: a) Misrepresenting oneself as a member or veteran of the Armed Forces by wearing a uniform or military decoration. b) Forging documentation reflecting the award of any military decoration a person has not received. c) Misrepresenting oneself as a member or veteran by wearing a uniform or military decoration. d) Using falsified military identification. e) Promoting a business, charity, or endeavor by impersonating a member or veteran of the Armed Forces by wearing a uniform or military decoration. This bill was previously heard by the Assembly Committee on Public Safety. It is important to note the constitutional context and litigation which motivated most of the changes this bill would make in California law. According to the Committee on Public Safety: 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 AB 1706 Page 6 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. ? The First Amendment of the United States Constitution protects the people's right to free speech from Congressional action. (U.S. Const., 1st Amend.) ? Not all speech is protected, but categories of unprotected speech are strictly limited. ? 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 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." [F]our Justices- held ? that the government's interest is compelling, but that other means exist to achieve their ends without restricting protected speech? the AB 1706 Page 7 Court held the statutory provision unconstitutional. (Alvarez, supra, at pp. 132 S.Ct. at pp. 2550-2551.) ?[T]wo Justices? [concurred and] 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 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. ? This bill's language largely mirrors the language of the federal Act. 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. 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: AB 1706 Page 8 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:John Spangler / V.A. / (916) 319-3550