Thursday, August 16, 2012

First Amendment Right to Impersonate a Police Officer? Split Fourth Circuit Panel Opinion

An opinion by a split panel of the Fourth Circuit in United States v. Chappell upheld the constitutionality of Virginia's "police impersonation statute," Va. Code §18.2.-174.  

The case arose when Chappell, a former Fairfax County Sheriff employee was stopped for speeding, and, hoping to avoid a ticket, represented that he was a member of the Sheriff's Office.   (Apparently, Chappell believed it would be a successful excuse; and apparently the officer who stopped Chappell thought it was sufficiently important to validate).  The prosecution was in federal court: the offense occurred on the George Washington Memorial Parkway and involved a US Park Police officer; federal law makes the Virginia impersonation statute applicable to the George Washington Memorial Parkway.

800px-Anna_Palm_de_Rosa-Speeding_ticket,_Bois_de_Boulogne
At the center of the First Amendment argument - - - and of the disagreement between the majority and dissent - - - is the Court's June 28th opinion in United States v. Alvarez, the "stolen valor" case.   The majority has a nice digest of Alvarez:

In Alvarez, a four-Justice plurality declared that false statements of fact do not by themselves fall outside of the First Amendment’s scope. Id. at 4-10. Applying exacting scrutiny, the plurality invalidated the Stolen Valor Act because there was not an adequate causal link between the Act and the government’s interest in protecting military honors and because the Act did not represent a sufficiently narrow means of securing that interest. Id. at 12-18. Moreover, in this context, simple counterspeech should suffice to achieve the government’s objectives. Id. at 15-17. Justice Breyer, joined by Justice Kagan, produced the majority for invalidating the statute. Concurring in the judgment, Justice Breyer reasoned that the Stolen Valor Act worked a disproportionate harm to protected speech interests relative to the government’s interests advanced by the Act. Id. at 8-10 (Breyer, J., concurring in the judgment).

The majority then states, "Significantly, no Justice thought it advisable to drape a broad cloak of constitutional protection over actionable fraud, identity theft, or the impersonation of law enforcement officers."   This limitation of Alvarez for the majority is necessary to avoid "a treacherous scenario of falling statutory dominoes, placing numerous federal and state impersonation statutes at risk — all in the face of the Supreme Court’s strong signals to the contrary."  

The majority also grounds its conclusion in constitutional principles counterbalanced with the First Amendment: 

The police function serves a significant salutary purpose in protecting public safety, but it also possesses an oppressive potential in the curtailment of liberty. Courts over time have been required to superintend this balance through Fourth Amendment reasonableness doctrine and related measures. To strike down police impersonation statutes, however, would risk expanding the oppressiveness of the police function by adding to the legitimate number of officers an untold flock of faux policemen, all without any corresponding salutary benefit. This strikes us as a complete inversion of the traditional balance courts are charged with maintaining.

Judge James Wynn, in a dissenting opinion as lengthy as the majority's opinion, argued that the Court in Alvarez rejected "the notion that false speech should be in a general category that is presumptively unprotected."  He criticizes the majority for "cherry-picking" language from Alvarez to support its conclusion that statutes criminalizing impersonation are constitutional.  For Judge Wynn, the Virginia statute

does not require any act, does not require that the individual obtain anything of value, and does not include any showing of actual deception or harm. In sum, the provision in the Virginia statute before us, and under which Chappell was convicted, criminalizes mere false speech and is closer to the Stolen Valor Act than to the impersonation statutes discussed in Supreme Court dicta and relied upon by today’s majority opinion.

Both the majority and dissent also discuss what the majority terms the "lifeboat of the overbreadth doctrine."  For the majority, this is no lifeboat at all: it calls some of Chappell's hypothetical applications - - - such as those attending costume parties - - - as "far-fetched."  Judge Wynn finds such applications worth considering, again because the statute does not include an element of intent to defraud, as most impersonation statutes do.  For example, Judge Wynn notes that the statute "would have covered Chappell, even if he had not attempted to avoid a ticket but instead expressed his remorse for violating a traffic law, stating, 'I am a police officer and should have known better.' " 

With the ink on Alvarez barely dry, there are already important disagreements about its scope. 

RR
[image: "Speeding ticket" by Anna Palm deRosa circa 1900, via]

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