BILL ANALYSIS
AB 1829
Page 1
Date of Hearing: April 13, 2010
ASSEMBLY COMMITTEE ON VETERANS AFFAIRS
Paul J. Cook, Chair
AB 1829 (Cook) - As Introduced: February 11, 2010
SUMMARY : Increases the penalty from an infraction to a
misdemeanor for any person who, orally or in wiring, or by
wearing any military decoration, falsely represents himself or
herself to have been awarded any military decoration, with the
intent to defraud. Specifically, this bill :
1)Provides that Penal Code Section 532b any person who, orally
or in wiring, or by wearing any military decoration, falsely
represents himself or herself to have been awarded any
military decoration, with the intent to defraud, is guilty of
a misdemeanor, punishable by up to six months in the county
jail, by a fine not exceeding $1,000, or both.
2)Defines "military decoration" to be any decoration or medal
from the Armed Forces of the United States, California
National Guard, State Military Reserve, or Naval Militia, or
any service medals or badges awarded to the members of those
forces, or the ribbon, button, or rosette of that badge,
decoration, or medal, or any colorable imitation of that item.
EXISTING LAW :
1)Proscribes that every offense declared to be a misdemeanor is
punishable by imprisonment in the county jail not exceeding
six months, or by fine not exceeding $1,000. (Penal Code
Section 19.)
2)Provides that any person who falsely represents himself or
herself as a veteran or ex-serviceman or any war in which the
United States was engaged, in connection with the soliciting
of aid or the sale or attempted sale of any property is guilty
of a misdemeanor. [Penal Code Section 532b(a).]
3)States that any person who falsely claims, or presents himself
or 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. [Penal Code Section 532b(b).]
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4)Provides that any person who willfully wears or uses the
badge, button, rosette, other recognized and "estimable"
insignia of the American Legion, Disabled American Veterans,
or Veterans of Foreign Wars unless the wearer is entitled to
do so without the express permission of such an organization
is guilty of a misdemeanor. For a first conviction, this
crime is punishable by imprisonment not to exceed 30 days in a
county jail or a fine not to exceed $500. Upon a second
conviction, the defendant is punishable by imprisonment in a
county jail for up to six months; a fine of up to $1,000; or
both. Nothing in this section prohibits prosecution under
another provision of law. [Military and Veterans Code Section
1820.]
5)Mandates any person who, without authority, wears the uniform
or distinctive part thereof, or similar apparel, of any of the
armed forces of the United States or the Public Health Service
shall be fined or imprisoned for up to six months. [Title 18
United States Code Section 702.]
6)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 shall be fined or imprisoned for up
to six months. [Title 18 United States Code Section 703.]
7)Demands a person who knowingly wears, manufactures, or sells
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 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. [Title 18 United States Code Section 704(a) or
704(b)(1).]
8)Any 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
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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. [Title 18 United States Code
Section 705.]
9)Mandates that any person who falsely personates another, in
either his or her private or official capacity, and in such
assumed character receives any money or property knowing that
it is intended to be delivered to the individual so
personated, with intent to convert the same to his or her own
use, that of another person, or to deprive the true owner
thereof, punishable in the same manner and to the same extent
as for larceny of the money or property so received. [Penal
Code Section 530.]
10)Penalizes any person who willfully obtains personal
identifying information, as defined, of another person and
uses that information for any unlawful purpose, including to
obtain, or attempt to obtain, credit, goods, services, or
medical information in the name of the other person without
the consent of that person is guilty of a public offense,
punishable by up to one year in a county jail and/or a fine of
up to $1,000, or imprisonment in the state prison and/or a
fine of up to $10,000. [Penal Code Section 530.5(a).]
11)Punishes any person who knowingly and designedly, by any
false or fraudulent representation or pretense, defrauds any
other person of money, labor, or property, whether real or
personal, is punishable in the same manner and to the same
extent as for larceny of the money or property so obtained.
[Penal Code Section 532(a).]
12)Requires that it is a misdemeanor to falsely represent
oneself as a veteran or ex-serviceman of any war in which the
United States was engaged in connection with the soliciting of
aid or the sale or attempted sale of any property. (Penal
Code Section 532b.)
13)States any person who unlawfully wears, exhibits, or uses the
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uniform, insignia, emblem, device, label, certificate, card or
writing of an officer or member of a fire department with
fraudulent intent is guilty of a misdemeanor. [Penal Code
Section 538e(a).]
14)Provides that any person who willfully wears, exhibits, or
uses the badge of a fire department or the Office of the State
Fire Marshal with intent to fraudulently impersonate an
officer or member of a fire department or a deputy state fire
marshal, of fraudulently inducing the belief that he or she is
an officer or member of a fire department or a deputy state
fire marshal, is guilty of a misdemeanor, punishable by up to
one year in the county jail; by a fine not to exceed $2,000;
or by both. [Penal Code Section 538e(b)(1).]
15)Affirms that any person who willfully wears or uses any badge
that falsely purports to be an officer or member of a fire
department or a deputy state fire marshal, or which resembles
the authorized badge so as to deceive an ordinary reasonably
person into believing that it is authorized for the use of one
who by law is given the authority of an officer or member of a
fire department or a deputy state fire marshal, for the
purpose of fraudulently impersonating an officer or member of
a fire department or a deputy state fire marshal, or of
fraudulently inducing the belief that he or she is an officer
or member of a fire department or a deputy state fire marshal,
is guilty of a misdemeanor, punishable by up to one year in
the county jail; by a fine not to exceed $2,000; or by both.
[Penal Code Section 538e(b)(2).]
16)Demands that any person who willfully wears, exhibits, or
uses; who willfully makes, sells, loans, gives; or transfers
to another any badge, insignia, emblem, device, or any label,
certificate, card, or writing, which falsely purports to be
authorized for the use of one who by law is given the
authority of an officer or member of a fire department or a
deputy state fire marshal, or which so resembles the
authorized badge, insignia, emblem, device, label,
certificate, card, or writing of an officer or member of a
fire department or a deputy state fire marshal as would
deceive an ordinary reasonable person into believing that it
is authorized for use by an officer or member of a fire
department or a deputy state fire marshal, is guilty of a
misdemeanor, except when any person who makes or sells any
badge under the circumstances described in this subdivision is
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guilty of a misdemeanor, punishable by a fine not to exceed
$15,000. [Penal Code Section 538e(c).]
17)Directs that any person who, for the purpose of selling,
leasing or otherwise disposing of merchandise, supplies or
equipment used in fire prevention or suppression, falsely
represents, in any manner whatsoever, to any other person that
he or she is a fire marshal, fire inspector or member of a
fire department; or that he or she has the approval,
endorsement or authorization of any fire marshal, fire
inspector or fire department, or member thereof, is guilty of
a misdemeanor. [Penal Code Section 538e(d).]
18)Expresses that any person who unlawfully wears, exhibits, or
uses the uniform, emblem, insignia, or card of a peace officer
with fraudulent intent is guilty of a misdemeanor. [Penal
Code Section 538d(a).]
19)Punishes any person who wears, exhibits, or uses the badge of
a peace officer with fraudulent intent is guilty of a
misdemeanor, punishable by up to one year in the county jail;
by a fine not to exceed $2,000; or by both. [Penal Code
Section 538d(b)(1).]
20)Provides that any person who wears, exhibits, or uses any
badge which falsely purports to be that of a peace officer is
guilty of a misdemeanor, punishable by up to one year in the
county jail; by a fine not to exceed $2,000; or by both.
[Penal Code Section 538d(b)(2).]
21)States that the willful manufacture, sale, loan, or transfer
of any badge, emblem, insignia, or card falsely purporting to
be that of a peace officer is guilty of a misdemeanor,
punishable by up to six months in the county jail; by a fine
not to exceed $15,000; or by both. [Penal Code Section
538d(c).]
FISCAL EFFECT : Unknown.
COMMENTS :
1)Author's Statement : According to the author, "The crime of
fraudulently misrepresenting one's military record to defraud
others is utterly reprehensible. It pleased me to put AB 282
on the books in 2007, but punishing this type of crime by
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issuing an infraction doesn't go far enough. This bill is
necessary to protect the dignity and honor of the men and
women who have served honorably in the United States Armed
Forces."
2)Background : According to information provided by the author,
"The penalty under current law for fraudulently wearing or
claiming receipt of a military decoration is too lenient. As
it stands today, such crimes are considered an infraction
within the Military and Veterans Code. The intent of this
legislation is to strengthen existing law by making this crime
a misdemeanor.
"This bill would provide that it is a misdemeanor for a person
to, orally, in writing, or by wearing, as defined, falsely
represent himself or herself to have been awarded any military
decoration. This bill would exempt face-to-face solicitations
involving less than $10. By making a violation of these
provisions a crime, this bill would create a state-mandated
local program; however, no reimbursement is required by this
act."
3)The First Amendment : The hallmark of protection of free
speech under the First Amendment is to allow for the "free
trade in ideas" - even ideas that the overwhelming majority of
people might find distasteful or discomforting. [Virginia v.
Black (2003) 538 U.S. 343; see also Texas v. Johnson (1989)
491 U.S. 397, 414 ("If there is a bedrock principle underlying
the First Amendment, it is that the government may not
prohibit the expression of an idea simply because society
finds the idea itself offensive or disagreeable.").] Thus,
the First Amendment "ordinarily" denies states "the power to
prohibit [the] dissemination of social, economic and political
doctrines which a vast majority of its citizens believe to be
false and fraught with evil consequence." [Whitney v.
California (1927) 274 U.S. 357, 374 (Brandeis, J.,
dissenting).] The First Amendment also affords protection to
symbolic or expressive conduct as well as to actual speech.
[See, e.g., R. A. V. v. City of St. Paul (1992) 505 U.S. 377,
382; United States v. O'Brien (1968) 391 U.S. 367; Tinker v.
Des Moines Independent Community School Dist. (1969) 393 U.S.
503, 505.]
The protections afforded by the First Amendment, however, are
not absolute. It has long been recognized that the government
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may regulate certain categories of pure expression consistent
with the Constitution. [See, e.g., Chaplinsky v. New
Hampshire (1942) 315 U.S. 568, 571-572 ("There are certain
well-defined and narrowly limited classes of speech, the
prevention and punishment of which has never been thought to
raise any Constitutional problem").] The First Amendment
permits "restrictions upon the content of speech in a few
limited areas, which are 'of such slight social value as a
step to truth that any benefit that may be derived from them
is clearly outweighed by the social interest in order and
morality'." [R. A. V. v. City of St. Paul, supra, 505 U.S.
377, 382-383 (quoting Chaplinsky v. New Hampshire, supra, 315
U.S. 568, 572).] Speech the United States Supreme Court has
allowed to be restricted include lewd, obscene, profane,
libelous and that which causes an imminent danger to others,
such as yelling "fire" in a crowded theater.
The high court has acknowledged "many crimes can consist solely
of spoken words, such as soliciting a bribe (Pen. Code,
653f), perjury (Pen. Code, 118), or making a terrorist
threat (Pen. Code, 422)." The California Supreme Court has
held: "[T]he state may penalize threats, even those
consisting of pure speech, provided the relevant statute
singles out for punishment threats falling outside the scope
of the First Amendment protection. In this context, the goal
of the First Amendment is to protect expression that engages
in some fashion in public dialogue, that is 'communication in
which the participants seek to persuade, or are persuaded;
communication which is about changing or maintaining beliefs,
or taking or refusing to take action on the basis of one's
beliefs . . . . ' As speech strays further from the values of
persuasion, dialogue and free exchange of ideas, and moves
toward willful threats to perform illegal acts, the state has
greater latitude to regulate expression . . . . " [People v.
Toledo (2001) 26 Cal.4th 221, 233, quoting In re M.S. (1995)
10 Cal.4th 698, 710.]
a) The Stolen Valor Act : The Stolen Valor Act of 2005,
codified at 18 U.S.C. Section 704(b) & (d), as originally
enacted, criminalized the wearing, manufacture, or sale of
unauthorized military awards. [See 18 U.S.C. Section
704(a).] Congress, however, felt that these protections
were inadequate to protect "the reputation and meaning of
military decorations and medals." [See Pub. L. No. 109-437
(Dec. 20, 2006) 120 Stat. 3266.] According to one of the
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bill's sponsors, "there are some individuals who diminish
the accomplishments of [military] award recipients by using
medals they have not earned. These imposters use fake
medals -- or claim to have medals that they have not earned
-- to gain credibility in their communities." [Remarks of
Sen. Conrad, 151 Cong. Rec. S12684-01, S12688 (Nov. 10,
2005).] Hence, the Stolen Valor Act makes it a crime to
falsely represent oneself, 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. [18 U.S.C. Section 704(b).]
The express language of the Act, as quoted above, is markedly
different from the language of the original statute,
codified in Section 704(a). Whereas Section 704(a)
punishes the act of knowingly wearing, manufacturing, or
selling military decorations without authorization, Section
704(b) purports to criminalize the false statement that one
has earned such awards. The Act requires no further action
or effect, such as that the falsehood induced reliance
thereon or otherwise caused detriment to innocent third
party. [Cf. United States v. Harmon (2nd Cir. 1974) 496
F.2d 20, 20-21 (finding that charges of violating 18 U.S.C.
Section 912, which prohibits impersonating an officer of
employee of the United States, were properly dismissed
where indictment did not allege that defendant "performed
any acts under the guise of this assumed identity").] It
seems the penalties imposed by the Stolen Valor Act are
based clearly on the content of the speaker's
misrepresentation, i.e., that he or she has received
military honors.
As such, the Stolen Valor Act's constitutionality is
presently being challenged. Lawyers in California and
Colorado are challenging the act on behalf of two men who
have been charged. The Californian is Xavier Alvarez of
Pomona, who, after being elected to a water district board,
boasted at a public meeting that he had received the Medal
of Honor, the nation's highest military distinction. Craig
Missakian, the federal prosecutor in the case against
Alvarez, insists that Congress can prosecute such cases on
the basis of the Constitution's grant of authority to raise
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and support an army, and that includes, by extension,
"protecting the worth and value of these medals." (See
U.S. Const., art. I, Section 8.) As such, deliberate lies
about the recept of military service is should not be
protected speech.
Jonathan Turley, a professor at George Washington
University's law school who is not involved in the two
cases, said the Stolen Valor Act raises constitutional
questions because it bans bragging or exaggerating about
one's self.
"Half the pickup lines in bars across the country could be
criminalized under that concept," he said.
Laws that impose a content-based restriction on pure speech
generally are subjected to strict scrutiny and cannot stand
unless it is narrowly tailed to serve a compelling
government interest. [Boos v. Barry (1988) 485 U.S. 312,
321.] Judge Robert Blackburn, the United States District
Judge involved in the Colorado case as indicated, stated
that his "research has revealed no precedent from any
jurisdiction holding that the protection of the honor and
reputation of military awards qualifies as a compelling
government interest sufficient to justify a content-based
regulation of pure speech." [United States v. Strandlof
(2009) 2009 U.S. Dist. LEXIS 122608, *5.]
b) Intent to Defraud : A person possesses the intent to
defraud " . . . if he or she intends to deceive another
person either to cause a loss of money, goods, services,
something of value, or to cause damage to, a legal,
financial, or property right." [CALJIC No. 1900 (Fall 2006
ed.).]
This bill, unlike the Stolen Valor Act, creates a misdemeanor
if a person orally or in writing, or by wearing any
military decoration, falsely represents himself or herself
to have been awarded any military decoration, with the
intent to defraud. This bill does not punish the
fabrication alone; to do so would create a presumably
unconstitutional content-based regulation. This bill's
language correctly punishes the criminal act of intending
to defraud by claiming false receipt of a military award.
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4)Prior Legislation :
a) AB 282 (Cook), Chapter 360, Statutes of 2007, created
an infraction for a person to falsely represent himself or
herself, verbally or in writing, to have been awarded any
decoration or medal from the Armed Forces of the United
States, the California National Guard, State Military
Reserve, or Navel Militia; any 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 with the intent to
defraud.
b) AB 787 (DeVore), Chapter 457, Statutes of 2006, provided
that any person who falsely claims, represents or presents
himself or 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.
REGISTERED SUPPORT / OPPOSITION :
Support
Vietnam Veterans of America, California State Council (Sponsor)
American Legion, Department of California
AMVETS, Department of California;
Opposition
None on file.
Analysis Prepared by : Eric Worthen / V. A. / (916) 319-3550