BILL ANALYSIS �
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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
Le�n, 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.
� 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.
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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 P�rez, Portantino, Silva, Skinner,
Smyth, Solorio, Swanson, Torres, Valadao, Wieckowski,
Yamada, John A. P�rez
NO VOTE RECORDED: Alejo, Butler, Conway, Galgiani, Garrick,
Gorell, Grove, Harkey, Roger Hern�ndez, 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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