Ken Paulson: Impersonating a cop vs. pretending to be a war hero

  When the U.S. Supreme Court in United States v. Alvarez struck down the Stolen Valor act, concluding that lying about receiving high military honors was protected under the First Amendment, many analysts made a point about the laws the Court’s decision would not invalidate. Most believed that state laws prohibiting the impersonation of police officers would stand.

  That view was put to the test in a case decided this week by the 4th U.S. Circuit Court of Appeals. In a 2-to-1 decision, the court upheld the constitutionality of a Virginia statute barring the impersonation of a police officer.

  The case stemmed from an incident in 2009 when Douglas Chappell was stopped for speeding and falsely told a U.S. Park Police officer that he was a deputy sheriff. In fact, Chappell was no longer employed as an officer.

  In upholding Chappell’s conviction in the case, the 4th Circuit noted language in the Alvarez case in which the justices made a clear distinction between lies and criminal impersonation.

  “The Court recognized, for example, the general validity of laws prohibiting ‘the false representation that one is speaking as a government official or on behalf of the government,’” Judge Harvie Wilkinson wrote in the majority opinion.

  “Falsely identifying oneself as a policeman in order to get out of a speeding ticket is simply not the kind of expressive conduct the Framers of our first and one of our greatest amendments had in mind,” Wilkinson wrote.

  Judge James Wynn saw it differently in his dissent.

  In Wynn’s view, the Virginia statute was too broad to be upheld. Courts have frequently struck down statutes that are so broad that they prohibit speech or conduct beyond the reach of government.

  Wynn acknowledges that the state has an interest in preventing the impersonation of officers, but can do it in a narrowly tailored way that would prohibit only efforts to deceive for criminal purposes.

  The Virginia statue would apply to “not only someone asserting that he is a police officer in the hopes of avoiding a ticket, but also among other things: children playing cops and robbers on the front lawn; trainees at a police academy role playing; and actors in plays in which peace officers are characters,” Wynn wrote.

  Wynn went on to suggest that someone in a bar falsely bragging about being a police officer or lying as part of a political campaign could be punished under the Virginia law.

  It’s a spirited dissent that challenges conventional wisdom about the constitutionality of police-impersonation laws.

  One distinction from the military bragging in Alvarez, of course, is that police officers have a current ongoing role in society; military heroes do not. Consider the way even speed-limit-abiding drivers adjust their driving when a police car is parked at the curb. A police officer walking into a public place inevitably causes anxiety for some and brings comfort to others.

  There’s certainly a strong argument that citizens have a right to know whether the person sitting next to them on that bar stool has the power to take them into custody or whether they can turn to that bar mate for protection if violence breaks out. Even when off duty, police officers are “on.”

  About the author: Ken Paulson  is president and chief executive officer of the First Amendment Center. Previously, Paulson served as editor and senior vice president/news of USA Today and USATODAY.com.

  This article was published by the First Amendment Center.