Is Impersonating a Police Officer Your First Amendment Right?
by Joe Palazzolo, blogs.wsj.comAugust 14th 2012 4:48 PM
No, it seems.
In one of the first cases to deploy the Supreme Court's June decision striking down the Stolen Valor Act, the U.S. Court of Appeals for the Fourth Circuit on Tuesday held 2-1 that Virginia's law against impersonating a police officer is constitutional.
The Supreme Court held in U.S. v. Alvarez that lying about being a war hero — which the law made illegal — was protected speech.
But not all lies are protected, as the Fourth Circuit reminded us.
Douglas Chappell was stopped in October 2009 by a U.S. Park Police officer on the George Washington Memorial Parkway. In a bid for leniency, he fibbed, telling the officer he was a deputy sheriff in nearby Fairfax County, Va., according to court documents. In fact, he hadn't been working at the office for about a year. The officer called the sheriff's office, and Mr. Chappell was found out. He was arrested for speeding and impersonating an officer and was later convicted.
Mr. Chappell maintained that the Virginia law against impersonating an officer violated his First Amendment rights. The argument failed in federal trial court, so he rolled it up to the U.S. Court of Appeals for the Fourth Circuit.
In a legal brief, Mr. Chappell said the statute "criminalizes the behavior of adults who attend costume parties dressed as a police officer, children playing cops and robbers, and actors portraying law enforcement officials."
Judge J. Harvie Wilkinson III, who wrote the majority opinion, had no patience for the argument.
"It is telling that these are the only hypotheticals appellant can conjure up. Of course, it is ludicrous to suggest that costumed party-goers, children, and actors will be prosecuted for pretending to be police officers," he wrote.
In Alvarez, the Supreme Court expressly confirmed the constitutionality of a federal law prohibiting impersonation of government officers, the judge pointed out. So why would a state law that achieves the same purpose fall?
"To strike down police impersonation statutes…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," wrote Judge Wilkinson, who was joined by Chief Judge William Byrd Traxler Jr.
Judge James Andrew Wynn Jr., however, said he had no doubt that Alvarez rendered the Virginia law unconstitutional.
"Because false statements, including the ones at issue here, are not categorically excluded from First Amendment protections, this case, like Alvarez, requires an examination of the degree of fit between the governmental interest at stake and the challenged statutory provision," he wrote.
He went on,
Nothing before us indicates that the challenged clause was intended to prohibit citizens from posing as off-duty officers to dodge speeding tickets. Officers, just like judges and all other citizens, are subject to traffic laws and should be ticketed just like anyone else when they fail to obey them. The government interest here is public safety—not the prevention of non-police officers from attempting to obtain benefits that police officers should not themselves receive.
Alvarez binds us to hold that even if the government interest is compelling, the statute at issue in this case, as written, imposes disproportionate constitutional harm in a way that a more finely-tailored statute would not.
Judge Wynn said a survey of other states' laws showed that, "yes, the government's interest in the repute of its law enforcement officers can be achieved in a less burdensome way."
The Office of the Federal Public Defender, which represented Mr. Chappell, had no immediate comment.
Original Page: http://blogs.wsj.com/law/2012/08/14/is-impersonating-a-police-officer-your-first-amendment-right/
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Victor Cuvo, Attorney at Law
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