BILL ANALYSIS �
AB 167
Page 1
Date of Hearing: April 5, 2011
ASSEMBLY COMMITTEE ON VETERANS AFFAIRS
Paul J. Cook, Chair
AB 167 (Cook) - As Amended: March 25, 2011
SUBJECT : California Stolen Valor Act.
SUMMARY : 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 or 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."
EXISTING LAW
1)Mandates that an officer forfeit office upon conviction of
designated crimes as specified in the Constitution and laws of
the California. (Government Code Section 3000.)
2)Requires that an elected officer, as specified, forfeit his or
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. (Government Code Section 3003.)
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. �Penal Code Section 532b(a).]
4)States that a 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).]
5)Mandates that a person who, orally, in writing, or by wearing
a military decoration, falsely represents himself or 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
AB 167
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States, this offense is an infraction or a misdemeanor.
�Penal Code Section 532b(c).]
6)Deems a person who falsely represents himself or herself in a
manner as specified to be guilty of a misdemeanor or
infraction. �Military and Veterans Code Section 1821.]
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. (Penal Code Section 19.8.)
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 six months.
(Title 18 United States Code Section 702.)
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. (Title 18 United States Code Section 703.)
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. �Title 18 United States Code Section 704(a) or
704(b)(1).]
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,
AB 167
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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.]
FISCAL EFFECT : Unknown
COMMENTS :
Background
Currently, California law requires that an elected officer
forfeit office upon conviction of a crime pursuant to the
federal Stolen Valor Act. (Government Code Section 3003.)
Additionally, under California law, it is already a misdemeanor
for a person to falsely claim or present himself or herself as a
veteran or member of the Armed Forces with intent to defraud.
�Penal Code Section 532b(b).] 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. �Boos v. Barry (1988) 485 U.S. 312, 321.]
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. �United States v. Alvarez, (9th Cir.
2010) 617 F.3d 1198, 1202-1203.] 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
AB 167
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any of the existing categories. �United States v. Alvarez,
supra, 617 F.3d 1198, 1206.] 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. �United States v.
Alvarez, supra, 617 F.3d 1198, 1218.] A Colorado district court
came to the same conclusion. �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 �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.
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. (Penal
Code Section 532b.) 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, increased 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 or 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
AB 167
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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, mandated that
an elected officer of a city, county, city and county, or
district in California, forfeit his or 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.
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 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, provided that a
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.
Author's Statement
According to the author, 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 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."
AB 167
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REGISTERED SUPPORT / OPPOSITION :
Support
American Legion-Department of California , AMVETS-Department of
California, California Association of County Veterans Service
Officers, Military Officers Association of America-California
Council of Chapters, Student Veterans of California, Vietnam
Veterans of America, California State Council. Military Order of
the Purple Heart- Department of California, California State
Commanders Veterans Council
Opposition
None.
Analysis Prepared by : John Spangler / V. A. / (916) 319-3550