Existing law makes it a crime for a person who is not a peace officer, with the intent of fraudulently impersonating a peace officer, or of fraudulently inducing the belief that he or she is a peace officer, to willfully wear, exhibit, or use the badge, authorized uniform, insignia, emblem, device, label, certificate, card, or writing, of a peace officer.

This bill would make it a misdemeanor for a person who is not an officer or member of a government agency managed or affiliated search and rescue unit or team, with the intent of fraudulently impersonating an officer or member, as defined, of a government agency managed or affiliated search and rescue unit or team, as defined, to willfully wear, exhibit, or use the badge, authorized uniform, insignia, emblem, device, label, certificate, card, or writing of a government agency managed or affiliated search and rescue unit or team, as specified.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law makes it a crime for a person who is not a peace officer, with the intent of fraudulently impersonating a peace officer, or of fraudulently inducing the belief that he or she is a peace officer, to willfully wear, exhibit, or use the badge, authorized uniform, insignia, emblem, device, label, certificate, card, or writing, of a peace officer.

This bill would make it a misdemeanor for a person who is not an officer or member of a government agency managed or affiliated search and rescue unit or team, with the intent of fraudulently impersonating an officer or member, as defined, of a government agency managed or affiliated search and rescue unit or team, as defined, to willfully wear, exhibit, or use the badge, authorized uniform, insignia, emblem, device, label, certificate, card, or writing of a government agency managed or affiliated search and rescue unit or team, as specified.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law makes it a crime for a person who is not a peace officer, with the intent of fraudulently impersonating a peace officer, or of fraudulently inducing the belief that he or she is a peace officer, to willfully wear, exhibit, or use the badge, authorized uniform, insignia, emblem, device, label, certificate, card, or writing, of a peace officer.

This bill would make it a misdemeanor for a person who is not an officer or member of a government agency managed or affiliated search and rescue unit or team, with the intent of fraudulently impersonating an officer or member member, as defined, of a government agency managed or affiliated search and rescue unit or team, as defined, to willfully wear, exhibit, or use the badge, authorized uniform, insignia, emblem, device, label, certificate, card, or writing of a government agency managed or affiliated search and rescue unit or team, as specified. The bill would make it a misdemeanor and willfully make, sell, loan, give or transfer to another person any of the above referenced items that falsely purport, or that would decieve a reasonable person to believe, to be authorized for the use of a member of a government agency managed or affiliated search and rescue unit or team.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law makes it a crime for a person who is not a peace officer, with the intent of fraudulently impersonating a peace officer, or of fraudulently inducing the belief that he or she is a peace officer, to willfully wear, exhibit, or use the badge, authorized uniform, insignia, emblem, device, label, certificate, card, or writing, of a peace officer.

This bill would make it a misdemeanor for a person who is not an officer or member of a government agency managed or affiliated search and rescue unit or team, with the intent of fraudulently impersonating an officer or member of a government agency managed or affiliated search and rescue unit or team, to willfully wear, exhibit, or use the badge, authorized uniform, insignia, emblem, device, label, certificate, card, or writing of a government agency managed or affiliated search and rescue unit or team, as specified. The bill would make it a misdemeanor and willfully make, sell, loan, give or transfer to another person any of the above referenced items that falsely purport, or that would decieve a reasonable person to believe, to be authorized for the use of a member of a government agency managed or affiliated search and rescue unit or team.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

 THIRD READING  

Bill No: AB 1920

Author:

:

Vote:

SENATE PUBLIC SAFETY COMMITTEE: 7-0, 6/12/18

AYES: Skinner, Anderson, Bradford, Jackson, Mitchell, Stone, Wiener

SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/16/18

AYES: Portantino, Bates, Beall, Bradford, Hill, Nielsen, Wiener

ASSEMBLY FLOOR: 68-0, 4/12/18 (Consent) - See last page for vote

SUBJECT:

SOURCE: California State Sheriffs’ Association

DIGEST:

This bill specifies that it is a misdemeanor to intentionally and fraudulently impersonate a member of a search and rescue team.

ANALYSIS:

Existing law:

1. Provides that any person other than one who by law is given the authority of a peace officer, who willfully wears, exhibits, or uses the authorized uniform, insignia, emblem, device, label, certificate, card, or writing, of a peace officer, with the intent of fraudulently impersonating a peace officer, or of fraudulently inducing the belief that he or she is a peace officer, is guilty of a misdemeanor. (Pen. Code § 538d, subd. (a).)
   
2. Requires vendors of law enforcement uniforms to verify that any person who purchases a uniform is a law enforcement employee. A vendor who fails to do so is guilty of a misdemeanor. (Pen. Code § 538d, subd. (e).)
   
3. Provides that a person who falsely represents himself or herself to be a public officer, investigator, or inspector of a state department and who, in that assumed character, does any of the following is guilty of an alternate felony/misdemeanor:
   1. Arrests, detains, or threatens to arrest or detain any person;
   2. Otherwise intimidates any person;
   3. Searches any person, building, or other property of any person; or,
   4. Obtains money, property, or other thing of value. (Pen. Code § 146a, subd. (b).)
      
4. Makes it a misdemeanor for a person to impersonate without authority, or to wear the badge of, a member of the California Highway Patrol with the intent to deceive. (Veh. Code § 27.)
   
5. Makes it an alternate felony or misdemeanor for any person to falsely personate another in either his or her private or official capacity, and in that assumed character do any of the following:
   1. Become bail or surety for any party in any proceeding whatever, before any court or officer authorized to take that bail or surety.
   2. Verify, publish, acknowledge, or prove, in the name of another person, any written instrument, with intent that the same may be recorded, delivered, or used as true.
   3. Do any other act whereby, if done by the person falsely personated, he might, in any event, become liable to any suit or prosecution, or to pay any sum of money, or to incur any charge, forfeiture, or penalty, or whereby any benefit might accrue to the party personating, or to any other person. (Pen. Code § 529.)

This bill:

1. Provides that any person, other than an officer or a member of a government-agency managed or affiliated search and rescue team, who willfully wears, exhibits, or uses the authorized uniform, insignia, emblem, device, label, certificate, card or writing of a person on such a team is guilty of a misdemeanor when done in any of the following situations:
   
   1. With the intent of fraudulently impersonating a member of the search and rescue team;
      
   2. With the intent of fraudulently inducing the belief that he or she is a member of the search and rescue team; or,
      
   3. Using the same to obtain aid, money, or assistance within the state.
      
2. Provides that any person, other than one who is a lawful officer or member of a government-agency-managed or affiliated search and rescue team, who willfully wears, exhibits, or uses the badge of such a team is guilty of a misdemeanor when done in any of the following situations:
   
   1. With the intent of fraudulently impersonating an officer or member of the search and rescue team; or,
      
   2. With the intent of fraudulently inducing the belief that he or she is a member of the search and rescue team.
      
3. Provides that any person who willfully wears or uses a fake badge purporting to be the badge of a government-agency-managed or affiliated search and rescue team, or one that resembles such a badge as would deceive an ordinary reasonable person, is guilty of a misdemeanor when done for the purpose of:
   
   1. Fraudulently impersonating an officer or member of the search and rescue team; or,
      
   2. Fraudulently inducing the belief that he or she is a member of the search and rescue team.
      
4. Defines “search and rescue unit or team” as “an entity engaged in the acts of searching for, rescuing, or recovering by means of ground, marine, or air activity any person that becomes lost, injured, or is killed while outdoors or as a result of a natural or manmade disaster, including instances involving searches for downed or missing aircraft.”
   
5. Defines “member” as “any natural person who is registered with an accredited disaster council for the purpose of engaging in disaster service without pay or other consideration. Food and lodging provided, or expenses reimbursed for these items, during a member’s activation does not constitute other consideration.”

Background

According to the Governor’s Office of Emergency Services Web site: “Search and Rescue in California is the responsibility of each County’s Sheriff’s Office, except within certain National Parks. Cal OES provides support to each Sheriffs’ Office through Mutual Aid and our State SAR Resource Teams. Volunteers for these teams are covered by the Disaster Service Worker Program.”

The First Amendment of the United States Constitution prohibits Congress from passing laws prohibiting free speech. (U.S. Const., 1st Amend.) State action restricting free speech is likewise prohibited by the Due Process Clause of the Fourteenth Amendment. (First Nat. Bank of Boston v. Bellotti (1978) 435 U.S. 765, 779.) Not all speech is protected but categories of unprotected speech should be well-defined and narrowly limited. For example, obscenity, defamation, fraud, incitement, and speech integral to criminal conduct are unprotected categories of speech. (U.S. v. Stevens (2010) 559 U.S. 460, 468-469.) If speech does not fall into one of these well-defined categories, then that speech enjoys at least some level of First Amendment protection.

To determine what level of protection certain speech is given, a court must first determine whether the speech is content-based or content-neutral. (Madsen v. Women’s Health Center, Inc., (1994) 512 U.S. 763, 763-764.) Content-based restrictions on speech receive the strictest level of scrutiny. Therefore, a content-based restriction will only survive if the government has a compelling interest in regulating the speech and the restriction is the least restrictive means of regulating such speech. (McIntyre v. Elections Comm’n (1995) 514 U.S. 334, 346-47.) On the other hand, content-neutral speech is subject to the less restrictive intermediate scrutiny test, which only requires that the government have a legitimate interest and the means of regulating speech is narrowly tailored to achieve the government’s ends. In contrast to strict scrutiny, the means chosen need not be the least restrictive means. (Ward v. Rock Against Racism (1989) 491 U.S. 781, 798-800.)

The Supreme Court has ruled on the speech similar to that implicated in this bill when it examined the federal Stolen Valor Act of 2005 in United States v. Alvarez (2012) 132 S.Ct. 2537 [183 L.Ed.2d 547]. The relevant language of the Act reads:

“Whoever falsely represents himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States, any of the service medals or badges awarded to the members of such forces, the ribbon, button, or rosette of any such badge, decoration, or medal, or any colorable imitation of such item shall be fined under this title, imprisoned not more than six months, or both.”

The plurality held this provision content-based and therefore subject to strict scrutiny. (Alvarez, supra, 132 S.Ct. at p. 2543.) Critical to their holding is that the statute prohibited false claims without any requirement of cognizable harm as a result of the false claims. The plurality stated that the government’s interest is compelling, but that other means exist to achieve their ends without restricting protected speech. In particular, the Court held the combination of a database for medal recipients coupled with public condemnation would serve just as well to deter false claims regarding military service. (Alvarez, supra, at pp. 132 S.Ct. at pp. 2550-2551.) Because alternative means exist to address the government’s ends, the Court held the statutory provision unconstitutional. (Ibid.)

The concurring Justices applied intermediate scrutiny because they found the false speech to be of limited value. (Alvarez, supra, 132 S.Ct. at p. 2552.) The false claims at issue here were easily verifiable, and therefore unlikely to aid in the debate of public issues which is the heart of the First Amendment’s speech protections. However, the Court still held the statutory provision unconstitutional because of its potential to chill protected speech. Critical to the concurring Justices was the lack of intent to cause some legally cognizable harm, such as obtaining unearned benefits from the U.S. Department of Veterans Affairs or unearned employment preferences. (Id. at pp. 2555-2556.)

As pertains to this bill, each prohibition appears to require more than just a false claim. The proscribed conduct requires either (1) the intent to fraudulently impersonate, (2) the intent to fraudulently induce belief in another, or (3) that the impersonator actually obtain some form of aid, money, or assistance.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Senate Appropriations Committee:

• Court: Unknown, potentially-significant workload cost pressures to the court to adjudicate charges brought against defendants who impersonate a search and rescue team member as proscribed by this measure. While the superior courts are not funded on a workload basis, an increase in workload could result in delayed court services and would put pressure on the General Fund to fund additional staff and resources. (General Fund*)
• Prosecution & incarceration: Unknown potential increase in non-reimbursable local enforcement and incarceration costs to prosecute and incarcerate those charged with and found guilty of conduct proscribed by this bill. Costs would be offset, to a degree, by fee and assessment revenue. (Local funds)

*Trial Court Trust Fund

SUPPORT: (Verified 8/16/18)

California State Sheriffs’ Association (source)

California Association of Code Enforcement Officers

California College and University Police Chiefs Association

California Correctional Supervisors Organization

California Narcotic Officers Association

California Police Chiefs Association

Los Angeles County Professional Peace Officers Association

Personal Insurance Federation of California

OPPOSITION: (Verified 8/16/18)

California Public Defenders Association

ASSEMBLY FLOOR: 68-0, 4/12/18

AYES: Acosta, Aguiar-Curry, Travis Allen, Arambula, Baker, Berman, Bigelow, Bonta, Brough, Burke, Caballero, Calderon, Carrillo, Cervantes, Chau, Chávez, Chen, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Dahle, Daly, Eggman, Flora, Fong, Frazier, Friedman, Gallagher, Eduardo Garcia, Gipson, Gloria, Gonzalez Fletcher, Grayson, Harper, Holden, Irwin, Kalra, Kiley, Lackey, Levine, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Muratsuchi, Nazarian, Obernolte, O’Donnell, Patterson, Quirk, Quirk-Silva, Reyes, Rodriguez, Rubio, Salas, Mark Stone, Thurmond, Ting, Voepel, Waldron, Weber, Wood, Rendon

NO VOTE RECORDED: Bloom, Cristina Garcia, Gray, Jones-Sawyer, Limón, Low, Mullin, Santiago, Steinorth

Prepared by:

8/18/18 13:45:44

**** END ****

SENATE COMMITTEE ON

Senator Anthony Portantino, Chair

2017 - 2018 Regular Session

AB 1920 (Grayson) - Impersonation: search and rescue personnel

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

AB 1920 would criminalize as a misdemeanor to impersonate a member of a search and rescue team.

Fiscal Impact:

• Court: Unknown, potentially-significant workload cost pressures to the court to adjudicate charges brought against defendants who impersonate a search and rescue team member as proscribed by this measure. While the superior courts are not funded on a workload basis, an increase in workload could result in delayed court services and would put pressure on the General Fund to fund additional staff and resources. (General Fund*)

• Prosecution & incarceration: Unknown potential increase in non-reimbursable local enforcement and incarceration costs to prosecute and incarcerate those charged with and found guilty of conduct proscribed by this bill. Costs would be offset, to a degree, by fee and assessment revenue. (Local funds)

*Trial Court Trust Fund

Background:

Existing law provides that any person, other than one who by law is given the authority of a peace officer, who willfully wears, exhibits, or uses the authorized uniform, insignia, emblem, device, label, certificate, card, or writing, of a peace officer with the intent of fraudulently impersonating a peace officer, or of fraudulently inducing the belief that he or she is a peace officer, is guilty of a misdemeanor. Additionally, law enforcement uniform vendors must verify that any person who purchases a uniform is a law enforcement employee. A failure to do so is a crime that is punishable as a misdemeanor. The default punishment for a misdemeanor offense that does not prescribe a specific punishment is incarceration in the county jail for up to six months, a base fine of up to $1,000, or both the incarceration and fine.

Additionally, falsely representing oneself to be a public officer, investigator, or inspector of a state department and, in that assumed character, doing any of the following is a crime punishable as an alternate felony-misdemeanor:

• Arrest, detain, or threaten to arrest or detain any person.
• Otherwise intimidate any person.
• Search any person, building, or other property of any person.
• Obtain money, property, or other thing of value.

Proposed Law:

This bill would make it a misdemeanor for a person who is not an officer or member of a government agency-managed or -affiliated search and rescue unit or team, with the intent of fraudulently impersonating an officer or member of a government agency-managed or -affiliated search and rescue unit or team, to willfully wear, exhibit, or use the badge, authorized uniform, insignia, emblem, device, label, certificate, card, or writing of a government agency-managed or -affiliated search and rescue unit or team. It also would define the terms “member” and “search and rescue unit or team.”

Related Legislation:

AB 153 (Chavez, Ch. 576, Stats. 2017) expanded the crime of false representation as a war veteran or as a veteran or member of the Armed Forces and conformed the California Stolen Valor Act to the federal Stolen Valor Act of 2013.

SB 702 (Anderson, Ch. 514, Stats. 2014) increased the maximum misdemeanor fine for a person using a badge or emblem to impersonate a peace officer from $1,000 to $2,000 and required the local law enforcement agency that files charges to seize the item used to carry out the impersonation.

AB 1829 (Cook, Ch. 366, Stats. 2010) increased the penalty from an infraction to a misdemeanor for civilians who, orally, in writing, or by wearing any military decoration, falsely represents him- or herself to have been awarded any military decoration with the intent to defraud.

AB 1448 (Niello, Ch. 241, Stats. 2007) required law enforcement uniform vendors to verify that a person buying a uniform is an employee of the law enforcement agency identified on the uniform and made it a misdemeanor to fail to verify the purchaser’s identity.

Staff Comments:

The fiscal impact of this bill cannot be known with certainty, as the actual impact will be dependent on numerous factors, including, but not limited to, judicial and prosecutorial discretion, the criminal history of a defendant, and the factors unique to each case. As the crime created by this bill is punishable as a misdemeanor with the potential for incarceration, certain rights to the defendants are attached to the proceedings, including the right to a jury trial and the right to counsel (at public expense if the defendants are unable to afford the costs of representation) which could lead to lengthier and more complex court proceedings. Consequently, to the extent that the court adjudicates a dozen or more of these new crimes, on average, that otherwise would not have been filed or resulted in a criminal action but for the alleged impersonation violation, court costs of this bill would surpass the Suspense File threshold.

-- END --

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Nancy Skinner, Chair

2017 - 2018 Regular

Bill No: AB 1920 Hearing Date: June 12, 2018

Subject: Impersonation: Search and Rescue Personnel

HISTORY

Source: California State Sheriffs’ Association

Prior Legislation: SB 702 (Anderson), Ch. 514, Stats. of 2014

AB 1829 (Cook), Ch. 366, Stats. of 2010

AB 1448 (Niello), Ch. 241, Stats. of 2007

Support: California Association of Code Enforcement Officers; California College and University Police Chiefs Association; California Correctional Supervisors Organization; California Narcotic Officers Association; California Police Chiefs Association; Los Angeles County Professional Peace Officers Association; Personal Insurance Federation of California

Opposition: California Public Defenders Association

Assembly Floor Vote: 68 - 0

PURPOSE

The purpose of this bill is to specify that it is a misdemeanor to intentionally and fraudulently impersonate a member of a search and rescue team.

Existing law provides that any person other than one who by law is given the authority of a peace officer, who willfully wears, exhibits, or uses the authorized uniform, insignia, emblem, device, label, certificate, card, or writing, of a peace officer, with the intent of fraudulently impersonating a peace officer, or of fraudulently inducing the belief that he or she is a peace officer, is guilty of a misdemeanor. (Pen. Code, § 538d, subd. (a).)

Existing law requires vendors of law enforcement uniforms to verify that any person who purchases a uniform is a law enforcement employee. A vendor who fails to do so is guilty of a misdemeanor. (Pen. Code, § 538d, subd. (e).)

Existing law provides that a person who falsely represents himself or herself to be a public officer, investigator, or inspector of a state department and who, in that assumed character, does any of the following is guilty of an alternate felony/misdemeanor:

• • Arrests, detains, or threatens to arrest or detain any person;
    
  • Otherwise intimidates any person;
    
  • Searches any person, building, or other property of any person; or,
    
  • Obtains money, property, or other thing of value. (Pen. Code, § 146a, subd. (b).)
    

Existing law makes it a misdemeanor for a person to impersonate without authority, or to wear the badge of, a member of the California Highway Patrol with the intent to deceive. (Veh. Code, § 27.)

Existing law makes it an alternate felony or misdemeanor for any person to falsely personate another in either his or her private or official capacity, and in that assumed character do any of the following:

• • Become bail or surety for any party in any proceeding whatever, before any court or officer authorized to take that bail or surety.
    
  • Verify, publish, acknowledge, or prove, in the name of another person, any written instrument, with intent that the same may be recorded, delivered, or used as true.
    
  • Do any other act whereby, if done by the person falsely personated, he might, in any event, become liable to any suit or prosecution, or to pay any sum of money, or to incur any charge, forfeiture, or penalty, or whereby any benefit might accrue to the party personating, or to any other person. (Pen. Code, § 529.)
    

This bill provides that any person, other than an officer or a member of a government-agency managed or affiliated search and rescue team, who willfully wears, exhibits, or uses the authorized uniform, insignia, emblem, device, label, certificate, card or writing of a person on such a team is guilty of a misdemeanor when done in any of the following situations:

• • With the intent of fraudulently impersonating a member of the search and rescue team;
    
  • With the intent of fraudulently inducing the belief that he or she is a member of the search and rescue team; or,
    
  • Using the same to obtain aid, money, or assistance within the state.
    

This bill provides that any person, other than one who is a lawful officer or member of a government-agency-managed or affiliated search and rescue team, who willfully wears, exhibits, or uses the badge of such a team is guilty of a misdemeanor when done in any of the following situations:

• • With the intent of fraudulently impersonating an officer or member of the search and rescue team; or,
    
  • With the intent of fraudulently inducing the belief that he or she is a member of the search and rescue team.
    

This bill provides that any person who willfully wears or uses a fake badge purporting to be the badge of a government-agency-managed or affiliated search and rescue team, or one that resembles such a badge as would deceive an ordinary reasonable person, is guilty of a misdemeanor when done for the purpose of:

• • Fraudulently impersonating an officer or member of the search and rescue team; or,
    
  • Fraudulently inducing the belief that he or she is a member of the search and rescue team.
    

This bill defines “search and rescue unit or team” as “an entity engaged in the acts of searching for, rescuing, or recovering by means of ground, marine, or air activity any person that becomes lost, injured, or is killed while outdoors or as a result of a natural or manmade disaster, including instances involving searches for downed or missing aircraft.”

This bill defines “member” as “any natural person who is registered with an accredited disaster council for the purpose of engaging in disaster service without pay or other consideration. Food and lodging provided, or expenses reimbursed for these items, during a member’s activation does not constitute other consideration.”

COMMENTS

1. Need for This Bill

According to the author:

Current law makes it a crime to impersonate a police officer, firefighter, veteran, or public utility employee, yet there are currently no provisions in existing statute penalizing individuals or organizations that fraudulently present themselves as ‘Search and Rescue’ entities. In many instances, these entities and individuals are not accredited nor are they affiliated with any charities or law enforcement group. Yet, they solicit funds through phone and direct mail, giving the public the impression that they are operating lawfully and in accord with local and state law enforcement. Often, citizens do not know that these groups are not vetted, trained, certified, or insured, and are misled into donating money to what they believe is a good cause. AB 1920 makes it a misdemeanor to fraudulently impersonate a government-affiliated search and rescue team, protecting the public and ensuring the integrity of professional search and rescue personnel who are officially registered, trained, and affiliated with government jurisdictions.

2. Search and Rescue

According to the Governor’s Office of Emergency Services (CalOES) website: “Search and Rescue in California is the responsibility of each County's Sheriff's Office, except within certain National Parks. Cal OES provides support to each Sheriffs' Office through Mutual Aid and our State SAR Resource Teams. Volunteers for these teams are covered by the Disaster Service Worker Program.” ^[1]

3. Free Speech Issues

The First Amendment of the United States Constitution prohibits Congress from passing laws prohibiting free speech. (U.S. Const., 1st Amend.) State action restricting free speech is likewise prohibited by the Due Process Clause of the Fourteenth Amendment. (First Nat. Bank of Boston v. Bellotti (1978) 435 U.S. 765, 779.) Not all speech is protected but categories of unprotected speech should be well-defined and narrowly limited. For example, obscenity, defamation, fraud, incitement, and speech integral to criminal conduct are unprotected categories of speech. (U.S. v. Stevens (2010) 559 U.S. 460, 468-469.) If speech does not fall into one of these well-defined categories, then that speech enjoys at least some level of First Amendment protection.

To determine what level of protection certain speech is given, a court must first determine whether the speech is content-based or content-neutral. (Madsen v. Women's Health Center, Inc., (1994) 512 U.S. 763, 763-764.) Content-based restrictions on speech receive the strictest level of scrutiny. Therefore, a content-based restriction will only survive if the government has a compelling interest in regulating the speech and the restriction is the least restrictive means of regulating such speech. (McIntyre v. Elections Comm'n (1995) 514 U.S. 334, 346-47.) On the other hand, content-neutral speech is subject to the less restrictive intermediate scrutiny test, which only requires that the government have a legitimate interest and the means of regulating speech is narrowly tailored to achieve the government's ends. In contrast to strict scrutiny, the means chosen need not be the least restrictive means. (Ward v. Rock Against Racism (1989) 491 U.S. 781, 798-800.)

The Supreme Court has ruled on the speech similar to that implicated in this bill when it examined the federal Stolen Valor Act of 2005 in United States v. Alvarez (2012) 132 S.Ct. 2537 [183 L.Ed.2d 547]. The relevant language of the Act reads:

"Whoever falsely represents himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States, any of the service medals or badges awarded to the members of such forces, the ribbon, button, or rosette of any such badge, decoration, or medal, or any colorable imitation of such item shall be fined under this title, imprisoned not more than six months, or both."

The plurality held this provision content-based and therefore subject to strict scrutiny. (Alvarez, supra, 132 S.Ct. at p. 2543.) Critical to their holding is that the statute prohibited false claims without any requirement of cognizable harm as a result of the false claims. The plurality stated that the government's interest is compelling, but that other means exist to achieve their ends without restricting protected speech. In particular, the Court held the combination of a database for medal recipients coupled with public condemnation would serve just as well to deter false claims regarding military service. (Alvarez, supra, at pp. 132 S.Ct. at pp. 2550-2551.) Because alternative means exist to address the government's ends, the Court held the statutory provision unconstitutional. (Ibid.)

The concurring Justices applied intermediate scrutiny because they found the false speech to be of limited value. (Alvarez, supra, 132 S.Ct. at p. 2552.) The false claims at issue here were easily verifiable, and therefore unlikely to aid in the debate of public issues which is the heart of the First Amendment's speech protections. However, the Court still held the statutory provision unconstitutional because of its potential to chill protected speech. Critical to the concurring Justices was the lack of intent to cause some legally cognizable harm, such as obtaining unearned benefits from the VA or unearned employment preferences. (Id. at pp. 2555-2556.)

As pertains to this bill, each prohibition appears to require more than just a false claim. The proscribed conduct requires either (1) the intent to fraudulently impersonate, (2) the intent to fraudulently induce belief in another, or (3) that the impersonator actually obtain some form of aid, money, or assistance.

-- END –

1. http://www.caloes.ca.gov/For-Individuals-Families/Law-Enforcement-Volunteering ↑

Date of Hearing: April 4, 2018

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

ABPCA Bill Id:AB 1920

Author:(Grayson) – As Amended Ver:March 13, 2018

Urgency: No State Mandated Local Program: Yes Reimbursable: No

SUMMARY:

This bill makes it a misdemeanor for a person to intentionally and fraudulently impersonate a member of a search and rescue team.

FISCAL EFFECT:

Minor GF costs, in the thousands of dollars annually, to the Department of Justice related to fingerprinting for individuals arrested for impersonating a member of a search and rescue team.

COMMENTS:

Background and purpose. According to the California State Sheriffs’ Association, the sponsor of this bill, California law enforcement agencies have seen an increase in citizens creating their own groups to do search and rescue work, which are often not equipped for, not proficient in, performing the needed rescue service. These groups often search for missing persons and respond to major and minor disasters and other state and local emergencies without the public ever realizing they are not vetted, trained, certified, or insured. In addition, some of these unaffiliated groups are soliciting donations from the public. Multiple unaffiliated groups throughout the state have obtained non-profit status and actively solicit money and equipment from the unsuspecting public by passing themselves off as organizations connected to public agencies. According to the author:

AB 1920 makes it a misdemeanor to fraudulently impersonate a government-affiliated search and rescue team, protecting the public and ensuring the integrity of professional search and rescue personnel who are officially registered, trained, and affiliated with government jurisdictions.

Analysis Prepared by: Jessica Peters / APPR. / (916) 319-2081

Date of Hearing:

Counsel: Sandra Uribe

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:AB 1920

Author:(Grayson) – As Introduced Ver:January 24, 2018

As Proposed to be Amended in Committee

SUMMARY:

Makes it a misdemeanor for a person to intentionally and fraudulently impersonate a member of a search and rescue team. Specifically, this bill:

1. Provides that any person, other than an officer or a member of a government-agency managed or affiliated search and rescue team, who willfully wears, exhibits, or uses the authorized uniform, insignia, emblem, device, label, certificate, card or writing of a person on such a team is guilty of a misdemeanor when done in any of the following situations:
   
   1. With the intent of fraudulently impersonating a member of the search and rescue team;
      
   2. With the intent of fraudulently inducing the belief that he or she is a member of the search and rescue team; or,
      
   3. Using the same to obtain aid, money, or assistance within the state.
      
2. Provides that any person, other than one who is a lawful officer or member of a government-agency-managed or affiliated search and rescue team, who willfully wears, exhibits, or uses the badge of such a team is guilty of a misdemeanor when done in any of the following situations:
   
   1. With the intent of fraudulently impersonating an officer or member of the search and rescue team; or,
      
   2. With the intent of fraudulently inducing the belief that he or she is a member of the search and rescue team.
      
3. Provides that any person who willfully wears or uses a fake badge purporting to be the badge of a government-agency-managed or affiliated search and rescue team, or one that resembles such a badge as would deceive an ordinary reasonable person, is guilty of a misdemeanor when done for the purpose of:
   
   1. Fraudulently impersonating an officer or member of the search and rescue team; or,
      
   2. Fraudulently inducing the belief that he or she is a member of the search and rescue team.
      
4. Defines “search and rescue unit or team” as “an entity engaged in the acts of searching for, rescuing, or recovering by means of ground, marine, or air activity any person that becomes lost, injured, or is killed while outdoors or as a result of a natural or manmade disaster, including instances involving searches for downed or missing aircraft.”
   
5. Defines “member” as “any natural person who is registered with an accredited disaster council for the purpose of engaging in disaster service without pay or other consideration. Food and lodging provided, or expenses reimbursed for these items, during a member’s activation does not constitute other consideration.”
   

EXISTING LAW:

1. Provides that any person other than one who by law is given the authority of a peace officer, who willfully wears, exhibits, or uses the authorized uniform, insignia, emblem, device, label, certificate, card, or writing, of a peace officer, with the intent of fraudulently impersonating a peace officer, or of fraudulently inducing the belief that he or she is a peace officer, is guilty of a misdemeanor. (Pen. Code, § 538d, subd. (a).)
   
2. Requires vendors of law enforcement uniforms to verify that any person who purchases a uniform is a law enforcement employee. A vendor who fails to do so is guilty of a misdemeanor. (Pen. Code, § 538d, subd. (e).)
   
3. Provides that a person who falsely represents himself or herself to be a public officer, investigator, or inspector of a state department and who, in that assumed character, does any of the following is guilty of an alternate felony/misdemeanor:
   
   1. Arrests, detains, or threatens to arrest or detain any person;
      
   2. Otherwise intimidates any person;
      
   3. Searches any person, building, or other property of any person; or,
      
   4. Obtains money, property, or other thing of value. (Pen. Code, § 146a, subd. (b).)
      
4. Makes it a misdemeanor for a person to impersonate without authority, or to wear the badge of, a member of the California Highway Patrol with the intent to deceive. (Veh. Code, § 27.)
   
5. Makes it an alternate felony or misdemeanor for any person to falsely personate another in either his or her private or official capacity, and in that assumed character do any of the following:
   
   1. Become bail or surety for any party in any proceeding whatever, before any court or officer authorized to take that bail or surety.
      
   2. Verify, publish, acknowledge, or prove, in the name of another person, any written instrument, with intent that the same may be recorded, delivered, or used as true.
      
   3. Do any other act whereby, if done by the person falsely personated, he might, in any event, become liable to any suit or prosecution, or to pay any sum of money, or to incur any charge, forfeiture, or penalty, or whereby any benefit might accrue to the party personating, or to any other person. (Pen. Code, § 529.)
      

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, “Current law makes it a crime to impersonate a police officer, firefighter, veteran, or public utility employee, yet there are currently no provisions in existing statute penalizing individuals or organizations that fraudulently present themselves as ‘Search and Rescue’ entities. In many instances, these entities and individuals are not accredited nor are they affiliated with any charities or law enforcement group. Yet, they solicit funds through phone and direct mail, giving the public the impression that they are operating lawfully and in accord with local and state law enforcement. Often, citizens do not know that these groups are not vetted, trained, certified, or insured, and are misled into donating money to what they believe is a good cause. AB 1920 makes it a misdemeanor to fraudulently impersonate a government-affiliated search and rescue team, protecting the public and ensuring the integrity of professional search and rescue personnel who are officially registered, trained, and affiliated with government jurisdictions.”
   
2. Background: According to the Governor’s Office of Emergency Services (CalOES) website: “Search and Rescue in California is the responsibility of each County's Sheriff's Office, except within certain National Parks. Cal OES provides support to each Sheriffs' Office through Mutual Aid and our State SAR Resource Teams. Volunteers for these teams are covered by the Disaster Service Worker Program.” (<http://www.caloes.ca.gov/For-Individuals-Families/Law-Enforcement-Volunteering>.)
   
3. Vagueness Issues: In criminal law, a law may be found invalid because it is not sufficiently clear. Laws are usually found void for vagueness if, after setting some requirement or punishment, the law does not specify what is required or what conduct is prohibited. A criminal statute must define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. (Skilling v. United States (2010) 561 U.S. 358 [130 S.Ct. 2896, 2927-2928]; People v. Morgan (2007) 42 Cal.4th 593, 605.)
   
   As introduced, this bill did not define a either “search and rescue unit or team” or what constituted a “member” of such a team. It would not have given an ordinary person notice of what organizations fell within the scope of the bill. For example, it was unclear whether the ski patrol was considered a search and rescue team. Further, the lack of definition for the term “member” made it unclear whether a volunteer would fall within the provisions of the bill.
   
   This bill will be amended to define both terms. The amendments will define “search and rescue unit or team” as “an entity engaged in the acts of searching for, rescuing, or recovering by means of ground, marine, or air activity any person that becomes lost, injured, or is killed while outdoors or as a result of a natural or manmade disaster, including instances involving searches for downed or missing aircraft.”
   
   The amendments will define “member” as “any natural person who is registered with an accredited disaster council for the purpose of engaging in disaster service without pay or other consideration. Food and lodging provided, or expenses reimbursed for these items, during a member’s activation does not constitute other consideration.” Based on this definition, a registered, trained volunteer constitutes a member, but a paid employee appears not to be covered, unless he or she is an officer of the search and rescue team. Does the term “member” need additional clarification?
   
4. Free Speech Issues: The First Amendment of the United States Constitution prohibits Congress from passing laws prohibiting free speech. (U.S. Const., 1st Amend.) State action restricting free speech is likewise prohibited by the Due Process Clause of the Fourteenth Amendment. (First Nat. Bank of Boston v. Bellotti (1978) 435 U.S. 765, 779.) Not all speech is protected but categories of unprotected speech should be well-defined and narrowly limited. For example, obscenity, defamation, fraud, incitement, and speech integral to criminal conduct are unprotected categories of speech. (U.S. v. Stevens (2010) 559 U.S. 460, 468-469.) If speech does not fall into one of these well-defined categories, then that speech enjoys at least some level of First Amendment protection.
   
   To determine what level of protection certain speech is given, a court must first determine whether the speech is content-based or content-neutral. (Madsen v. Women's Health Center, Inc., (1994) 512 U.S. 763, 763-764.) Content-based restrictions on speech receive the strictest level of scrutiny. Therefore, a content-based restriction will only survive if the government has a compelling interest in regulating the speech and the restriction is the least restrictive means of regulating such speech. (McIntyre v. Elections Comm'n (1995) 514 U.S. 334, 346-47.) On the other hand, content-neutral speech is subject to the less restrictive intermediate scrutiny test, which only requires that the government have a legitimate interest and the means of regulating speech is narrowly tailored to achieve the government's ends. In contrast to strict scrutiny, the means chosen need not be the least restrictive means. (Ward v. Rock Against Racism (1989) 491 U.S. 781, 798-800.)
   

The Supreme Court has ruled on the speech similar to that implicated in this bill when it examined the federal Stolen Valor Act of 2005 in United States v. Alvarez (2012) 132 S.Ct. 2537 [183 L.Ed.2d 547]. The relevant language of the Act reads:

"Whoever falsely represents himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States, any of the service medals or badges awarded to the members of such forces, the ribbon, button, or rosette of any such badge, decoration, or medal, or any colorable imitation of such item shall be fined under this title, imprisoned not more than six months, or both."

The plurality held this provision content-based and therefore subject to strict scrutiny. (Alvarez, supra, 132 S.Ct. at p. 2543.) Critical to their holding is that the statute prohibited false claims without any requirement of cognizable harm as a result of the false claims. The plurality stated that the government's interest is compelling, but that other means exist to achieve their ends without restricting protected speech. In particular, the Court held the combination of a database for medal recipients coupled with public condemnation would serve just as well to deter false claims regarding military service. (Alvarez, supra, at pp. 132 S.Ct. at pp. 2550-2551.) Because alternative means exist to address the government's ends, the Court held the statutory provision unconstitutional. (Ibid.)

The concurring Justices applied intermediate scrutiny because they found the false speech to be of limited value. (Alvarez, supra, 132 S.Ct. at p. 2552.) The false claims at issue here were easily verifiable, and therefore unlikely to aid in the debate of public issues which is the heart of the First Amendment's speech protections. However, the Court still held the statutory provision unconstitutional because of its potential to chill protected speech. Critical to the concurring Justices was the lack of intent to cause some legally cognizable harm, such as obtaining unearned benefits from the VA or unearned employment preferences. (Id. at pp. 2555-2556.)

As pertains to this bill (as proposed to be amended in committee), each prohibition appears to require more than just a false claim. The proscribed conduct requires either (1) the intent to fraudulently impersonate, (2) the intent to fraudulently induce belief in another, or (3) that the impersonator actually obtain some form of aid, money, or assistance.

1. Argument in Support: According to the California State Sheriffs’ Association, the sponsor of this bill, “Under current regulations, the California Office of Emergency Services (CAL OES) is tasked with working with local law enforcement to train civilian volunteers and groups who wish to offer vital assistance in recovery efforts in their community. However, there are no provisions in existing statute governing or regulating individuals or organizations that present themselves as a SAR [search and rescue] entities.
   
   “Due to this exclusion, California law enforcement agencies have recognized an increase in citizens creating their own groups to do SAR work, that are often not equipped for, not proficient in, performing the needed rescue service. These groups often search for missing persons and respond to major and minor disasters and other state and local emergencies without the public ever realizing they are not vetted, trained, certified, or insured.
   
   “Also, these unaffiliated SAR groups are capitalizing on ambiguous statutes and soliciting donations from the public. Multiple unaffiliated groups throughout the state have obtained non-profit status and actively solicit money and equipment from the unsuspecting public by passing themselves off as organizations connected to public agencies.”
   
2. Argument in Opposition: According to the California Public Defenders Association (CPDA), “As Governor Brown has repeatedly stated: ‘Criminal penalties are not the solution to every problem.’ It is CPDA’s belief that not every incident of improper behavior requires a new legal prohibition and mandatory punishment.
   
   “Additionally, there are a variety of existing criminal laws and penalties that could address this behavior. These include: Obstructing a Public Officer in violation of Penal Code section 148(a)(1), Interfering with Discharge of Duties of a Fireman or Emergency Rescue Personnel in violation of Penal Code 148.2, and Falsely Reporting an Emergency in violation of Penal Code Section 148.3(a)(1).”
   
3. Prior Legislation:
   
   1. SB 702 (Anderson), Chapter 514, Statutes of 2014, increases the maximum misdemeanor fine for a person using a badge or emblem to impersonate a peace officer, from $1,000 to $2,000, and requires the local law enforcement agency that files charges to seize the item used to carry out the impersonation.
      
   2. AB 1829 (Cook), Chapter 366, Statutes of 2010, increases the penalty from an infraction to a misdemeanor for civilians who, orally, in writing, or by wearing any military decoration, falsely represents himself or herself to have been awarded any military decoration, with the intent to defraud.
      
   3. AB 1448 (Niello), Chapter 241, Statutes of 2007, requires law enforcement uniform vendors to verify that a person buying a uniform is an employee of the law enforcement agency identified on the uniform, and makes it a misdemeanor to fail to verify identity.
      

REGISTERED SUPPORT / OPPOSITION:

Support

California State Sheriffs’ Association (Sponsor)
California Association of Code Enforcement Officers
California College and University Police Chiefs Association
California Correctional Supervisors Organization
California Narcotics Officers Association
Los Angeles County Professional Peace Officers Association
Personal Insurance Federation of California

Opposition

California Public Defenders Association

Analysis Prepared by:

Sandy Uribe / PUB. S. / (916) 319-3744