Thursday, August 16, 2012
Impersonating an Officer Statute OK Under First Amendment
US v. Chappell: Chappell was once a deputy sheriff in Fairfax County, Virginia. Unfortunately, at the time he was pulled over on the George Washington Parkway, he was no longer a deputy, but nonetheless claimed to be in order to avoid getting a ticket. When the officer who pulled him over discovered the deception, he was arrested and charged with impersonating a police officer (a state offense made federal under 18 USC 13). After the magistrate judge denied his motion to dismiss under the First Amendment, Chappell was convicted at a bench trial (he pled guilty to the speeding charge) and was sentenced to a term of probation, community service, and a fine.
On appeal, Chappell renewed his argument that the Virginia statute (the state intervened in the case, as well) making it a crime to "falsely assume or pretend to be any such officer" was facially invalid under the First Amendment because it was overboard and not sufficiently narrowly tailored to survive strict scrutiny review. The Fourth Circuit rejected those arguments and affirmed Chappell's conviction. Noting that facial challenges are traditionally unfavored, the court called Chappell's "a particularly inappropriate case for recognizing a challenge of facial invalidity" because the statue has a "plainly legitimate sweep" and Chappell was "right at the core" of that sweep. His attempt to "dodge a traffic ticket" by claiming to be an officer was "precisely the kind of conduct that the statute was designed to prohibit." It rejected Chappell's potential hypothetical overreaches of the statute applying to people wearing police costumes at parties or children playing cops and robbers, noting that although the Virginia statute is similar to many others across the country he could not point to any actual application to such situations. In addition, the statue's requirement that a person act "falsely" implies a mens rea requirement that would be absent from Chappell's hypotheticals. Chappell fared no better in "the lifeboat of overbreadth doctrine" because he could not show any "realistic danger" that the statute would infringe on First Amendment rights. The Supreme Court's recent decision in Alvarez striking down the Stolen Valor Act did not help, either.
Judge Wynn dissented, arguing that a "straightforward application" of Alvarez compelled a similar result in Chappell's case. He faulted the majority for "cherry-picking" parts of the plurality and concurring opinion in Alvarez that generally approved of false impersonation statutes while avoiding a "complete analysis" of the case's references to those statutes. He also took issue with the majority's conclusion that Chappell's behavior was the kind of conduct targeted by the statute, as opposed to public safety concerns related to faux officers.