United States v. Douglas Chappell

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
DOUGLAS P. CHAPPELL,
Defendant-Appellant,  No. 10-4746
v.
COMMONWEALTH OF VIRGINIA,
Intervenor.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(1:10-cr-00042-LMB-1)
Argued: January 27, 2012
Decided: August 14, 2012
Before TRAXLER, Chief Judge, and WILKINSON and
WYNN, Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the
majority opinion, in which Chief Judge Traxler joined. Judge
Wynn wrote a dissenting opinion.
2 UNITED STATES v. CHAPPELL
COUNSEL
ARGUED: Caroline Swift Platt, OFFICE OF THE FED-
ERAL PUBLIC DEFENDER, Alexandria, Virginia, for
Appellant. Jamie L. Mickelson, OFFICE OF THE UNITED
STATES ATTORNEY, Richmond, Virginia, for Appellee.
ON BRIEF: Michael S. Nachmanoff, Federal Public
Defender, Brian Mizer, Assistant Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexan-
dria, Virginia, for Appellant. Neil H. MacBride, United States
Attorney, Alexandria, Virginia, for Appellee. Kenneth T.
Cuccinelli, II, Attorney General of Virginia, E. Duncan Get-
chell, Jr., Solicitor General of Virginia, Charles E. James, Jr.,
Chief Deputy Attorney General, Wesley G. Russell, Jr., Dep-
uty Attorney General, OFFICE OF THE ATTORNEY GEN-
ERAL, Richmond, Virginia, for Intervenor.
OPINION
WILKINSON, Circuit Judge:
The Virginia police impersonation statute, Virginia Code
§ 18.2-174, prohibits individuals from falsely assuming or
pretending to be a law enforcement officer. In this case,
appellant asks us to hold the statute facially unconstitutional
under the First Amendment. For the reasons that follow, we
decline the invitation and affirm the judgment of the district
court.
I.
On October 6, 2009, Douglas Chappell was stopped for
speeding by a U.S. Park Police Officer on the George Wash-
ington Memorial Parkway. In an attempt to avoid a speeding
ticket, Chappell falsely told the officer that he was a Fairfax
County Deputy Sheriff. In fact, Chappell had not been
UNITED STATES v. CHAPPELL 3
employed by the Fairfax County Sheriff’s Office for approxi-
mately one year.
The officer asked Chappell for his law enforcement creden-
tials, and Chappell replied that he had left them at home. He
then produced his Virginia driver’s license, pointing out
accurately — that the license photo depicted him in uniform.
In order to verify Chappell’s employment, the officer called
the Fairfax County Sheriff’s Office, which requested an
employee identification number. When asked for his
employee identification number, Chappell made one up. He
subsequently admitted his lie and was arrested for impersonat-
ing a police officer.
Chappell was charged in the U.S District Court for the
Eastern District of Virginia with impersonating a police offi-
cer in violation of 18 U.S.C. § 13 — which makes Virginia
Code § 18.2-174 applicable to conduct occurring on the
George Washington Memorial Parkway — and with speeding.
After the magistrate judge denied Chappell’s motion to dis-
miss the impersonation charge under the First Amendment,
the parties proceeded to a bench trial. Chappell then pled
guilty to speeding and was convicted of the impersonation
charge. The magistrate judge imposed a $120 fine on the
speeding charge. He imposed a sentence of six months proba-
tion, along with 40 hours of community service and a $250
fine, on the impersonation charge. Defendant appealed the
magistrate judge’s rulings to the district court, which affirmed
the rulings on all grounds. This appeal followed.
II.
On appeal, Chappell contends that Virginia Code § 18.2-
174 violates the Free Speech Clause of the First Amendment.
The statute provides:
Any person who shall falsely assume or exercise the
functions, powers, duties and privileges incident to
4 UNITED STATES v. CHAPPELL
the office of sheriff, police officer, marshal, or other
peace officer, or who shall falsely assume or pretend
to be any such officer, shall be deemed guilty of a
Class 1 misdemeanor.
Va. Code Ann. § 18.2-174. Chappell was not punished under
the clause forbidding individuals from "falsely assum[ing] or
exercis[ing] the functions, powers, duties and privileges" of a
law enforcement officer. He was convicted under the clause
that prohibits "falsely assum[ing] or pretend[ing] to be any
such officer," and his challenge focuses solely on this second
clause. According to Chappell, this clause is unconstitution-
ally overbroad because it bans a substantial amount of pro-
tected speech. In addition, Chappell argues that the statute
cannot survive strict scrutiny because the second clause is a
content-based speech restriction and is not narrowly tailored.
Without contending that § 18.2-174 is unconstitutional as
applied to him, Chappell asks us to strike the law down on its
face.
A.
As the Supreme Court has repeated, facial invalidation of
legislation is disfavored. See, e.g., Wash. State Grange v.
Wash. State Republican Party, 552 U.S. 442, 450 (2008)
("Facial challenges are disfavored for several reasons."); Nat’l
Endowment for the Arts v. Finley, 524 U.S. 569, 580 (1998)
("[F]acial challenges to legislation are generally disfa-
vored[.]" (citation omitted)). Because "[c]laims of facial inva-
lidity often rest on speculation[,] . . . they raise the risk of
‘premature interpretation of statutes on the basis of factually
barebones records.’" Wash. State Grange, 552 U.S. at 450(quoting Sabri v. United States, 541 U.S. 600, 609 (2004)).
Facial invalidation is also contrary to principles of judicial
restraint, under which "courts should neither ‘anticipate a
question of constitutional law in advance of the necessity of
deciding it’ nor ‘formulate a rule of constitutional law broader
than is required by the precise facts to which it is to be
UNITED STATES v. CHAPPELL 5
applied.’" Id. at 450-51 (quoting Ashwander v. TVA, 297 U.S.
288, 346-47 (1936) (Brandeis, J., concurring)). Finally, "facial
challenges threaten to short circuit the democratic process by
preventing laws embodying the will of the people from being
implemented in a manner consistent with the Constitution."
Id. at 451.
Chappell presents us with a particularly inappropriate case
for recognizing a challenge of facial invalidity. First, the Vir-
ginia impersonation statute has a plainly legitimate sweep. By
protecting unsuspecting citizens from those who falsely pre-
tend to be law enforcement officers, the statute serves the
Commonwealth’s critical interest in public safety. See, e.g.,
People v. Ellis, 696 N.E.2d 1, 3 (Ill. App. Ct. 1998) (noting
that a state impersonation statute "exists to protect citizens
who would be harmed or deceived by those acting under the
color of authority"). Crucially, the second clause of § 18.2-
174 prohibits dangerous conduct — such as pretending to be
a law enforcement officer in order to board an airplane — that
might not fall under the first clause. And it is easy to envision
how just pretending to be a police officer could — without
more — assist an individual in gaining entrance to a home or
abducting a child. In addition to promoting public safety, the
statute deters individuals from pretending to be police officers
in an attempt to evade fines, incarceration, and other state-
imposed sanctions. The Virginia statute and others like it have
regularly been employed in service of these important inter-
ests. See, e.g., United States v. Jackson, 163 F.3d 599, 1998
WL 609705, at *3 (4th Cir. Sept. 1, 1998); English v. Com-
monwealth, 598 S.E.2d 322, 324 (Va. Ct. App. 2004); People
v. Reyes, 768 N.E.2d 374, 384 (Ill. App. Ct. 2002).
Second, Chappell is right at the core of the Virginia imper-
sonation statute’s plainly legitimate sweep. After falsely
informing the Park Police Officer that he was a Deputy Sher-
iff, Chappell furthered the misrepresentation by stating that he
left his credentials at home, by pointing out that his driver’s
license photo depicted him in uniform, and by making up a
6 UNITED STATES v. CHAPPELL
false employee identification number. As demonstrated by
these undisputed facts, there is no question that Chappell tried
to dodge a traffic ticket by "falsely assum[ing] or pretend[ing]
to be" a law enforcement officer. Chappell even conceded
before the district court that he "briefly claimed to be a police
officer in a failed attempt to avoid a speeding ticket." J.A.
117. This is precisely the kind of conduct that the statute was
designed to prohibit.
Chappell does not even bring an as-applied challenge to his
conviction, perhaps in recognition of the frivolousness of such
a claim. Instead, in an effort to distract attention from his
place at the heart of the statutory prohibition, Chappell
hypothesizes the rights of third parties, arguing that the statute
is facially unconstitutional under the First Amendment
because it "criminalizes the behavior of adults who attend
costume parties dressed as a police officer, children playing
cops and robbers, and actors portraying law enforcement offi-
cials." Appellant’s Br. at 17.
It is telling that these are the only hypotheticals appellant
can conjure up. Of course, it is ludicrous to suggest that cos-
tumed party-goers, children, and actors will be prosecuted for
pretending to be police officers. Despite acknowledging that
a number of states "have impersonation statutes like that of
Virginia," Appellant’s Supp. Reply Br. at 2-3 n.1, Chappell
does not point to a single case — in Virginia or elsewhere —
where such a statute has been construed to cover his posited
hypotheticals. We decline to facially invalidate § 18.2-174
just because Chappell can conceive of far-fetched applications
involving innocent behavior.
The government suggests that § 18.2-174 would not even
apply to these hypotheticals because the word "falsely" adds
a mens rea requirement to the statute. Chappell disagrees,
arguing that "falsely" simply means "not true" and does not
suffice to add a mens rea element. Chappell’s argument is
misplaced. The Supreme Court’s recent decision in United
UNITED STATES v. CHAPPELL 7
States v. Alvarez makes clear that courts must "construe stat-
utes ‘in light of the background rules of the common law, . . .
in which the requirement of some mens rea for a crime is
firmly embedded.’" No. 11-210, slip op. at 3 (U.S. June 28,
2012) (Breyer, J., concurring in the judgment) (quoting Sta-
ples v. United States, 511 U.S. 600, 605 (1994)). Moreover,
the word "falsely" expressly fulfills this function. Id. (reading
the Stolen Valor Act, which criminalized "falsely represent[-
ing]" oneself as the recipient of certain military decorations,
as proscribing "only false factual statements made with actual
knowledge of their falsity and with the intent that they be
taken as true"); see also id. at 2 n.1 (Alito, J., dissenting)
("The Act’s use of the phrase ‘falsely represents’ . . . connotes
a knowledge requirement.").
Moreover, there is no doubt that Chappell intended to
deceive the Park Police Officer. There was no unwitting false-
hood here. Chappell’s argument, once again, draws attention
to the considerable lengths to which he will go to distract
attention from his own conduct. But litigating the rights of
others poses problems of standing because these hypothetical
third parties have suffered no injury in fact, nor are they able
to present a concrete case or controversy, as the purported
innocents are purely imaginary. See, e.g., City of Los Angeles
v. Lyons, 461 U.S. 95, 101-02 (1983); Flast v. Cohen, 392
U.S. 83, 94-95 (1968).
Our friend in dissent argues that the Supreme Court’s deci-
sion in Alvarez, which invalidated a statute not as facially
overbroad but rather on general facial grounds, "binds us" to
the same analysis and result here. See post at 23. It is difficult
to understand why that would be so. Alvarez’s holding that
the Stolen Valor Act was facially invalid in no way repeals
the Supreme Court’s repeated cautions against striking down
legislation on its face. The Court explained in United States
v. Stevens just two terms ago, for instance, that "[t]o succeed
in a typical facial attack, [a party] would have to establish
‘that no set of circumstances exists under which [a statute]
8 UNITED STATES v. CHAPPELL
would be valid,’ or that the statute lacks any ‘plainly legiti-
mate sweep.’" 130 S. Ct. 1577, 1587 (2010) (citations omit-
ted). Here, of course, there is little question that § 18.2-174
has a "plainly legitimate sweep" and that "circumstances
exist[] under which [the statute] would be valid" because the
Supreme Court has said so in Alvarez itself: all nine justices
affirmed that the federal officer impersonation statute, 18
U.S.C. § 912, is constitutional. Slip op. at 9 (plurality opin-
ion); id. at 6 (Breyer, J., concurring in the judgment); id. at
10 (Alito, J., dissenting).
Alvarez thus in no way gives this court license to simply
ignore the many legitimate applications that a statute such as
§ 18.2-174 possesses. And it in no way permits us to ignore
the Court’s declaration in the very same opinion that govern-
ment impersonation and identity theft statutes are very differ-
ent from the Stolen Valor Act and therefore less susceptible
to a "disfavored" facial challenge, Wash. State Grange, 552
U.S. at 450. The dissent repeatedly dismisses all this as
Supreme Court dicta, but inconvenient Supreme Court state-
ments may not be so easily wished away.
B.
Failing in his general facial challenge, Chappell heads for
the lifeboat of overbreadth doctrine. However, this case is not
appropriate for overbreadth analysis, and even if it were,
Chappell’s challenge would still fail.
Overbreadth refers to a particular subset of facial chal-
lenges to statutes. Whereas many facial challenges, such as
that in Alvarez, allege that a statute at issue is unconstitutional
in all its applications, overbreadth challenges are pursued by
those such as Chappell to whom the statute is unquestionably
valid as applied. See Stevens, 130 S. Ct. at 1587; Brockett v.
Spokane Arcades, Inc., 472 U.S. 491, 503 (1985).1 Generally,
1
The dissent indicates that overbreadth analysis is unnecessary because
the Supreme Court in Alvarez invalidated the Stolen Valor Act on its face
UNITED STATES v. CHAPPELL 9
an individual to whom a statute may constitutionally be
applied may not challenge that statute on behalf of third par-
ties. New York v. Ferber, 458 U.S. 747, 767 (1982). The First
Amendment overbreadth doctrine, however, carves out a nar-
row exception to the general rule. See, e.g., Ferber, 458 U.S.
at 768; Broadrick v. Oklahoma, 413 U.S. 601, 611-12 (1973).
The overbreadth doctrine is predicated on "a judicial predic-
tion or assumption that the statute’s very existence may cause
others not before the court to refrain from constitutionally
protected speech or expression." Broadrick, 413 U.S. at 612.
For this reason, the Supreme Court has "allowed persons to
attack overly broad statutes even though the conduct of the
person making the attack is clearly unprotected and could be
proscribed by a law drawn with the requisite specificity." Fer-
ber, 458 U.S. at 769.
Though the Court has permitted such attacks, "the over-
breadth doctrine is not casually employed." L.A. Police Dep’t
v. United Reporting Publ’g Corp., 528 U.S. 32, 39 (1999).
"Because of the wide-reaching effects of striking down a stat-
ute on its face at the request of one whose own conduct may
be punished despite the First Amendment," the Court "[has]
recognized that the overbreadth doctrine is ‘strong medicine’
and [has] employed it with hesitation, and then ‘only as a last
resort.’" Ferber, 458 U.S. at 769 (citation omitted). "[T]he
mere fact that one can conceive of some impermissible appli-
cations of a statute is not sufficient to render it susceptible to
an overbreadth challenge." Members of City Council of L.A.
v. Taxpayers for Vincent, 466 U.S. 789, 800 (1984). Rather,
without explicitly asking whether it was unconstitutionally overbroad. See
post at 18-19, 21-22. Section 18.2-174 is very different from the Stolen
Valor Act, however, in that it not only has a plainly legitimate sweep but
also serves interests repeatedly acknowledged by the Supreme Court to be
compelling. See post at 12-14. Unlike in Alvarez, therefore, here the argu-
ments for general facial invalidation are so weak that the only way Chap-
pell can attempt to get at the question of invalidity is through an
overbreadth challenge.
10 UNITED STATES v. CHAPPELL
"there must be a realistic danger that the statute itself will sig-
nificantly compromise recognized First Amendment protec-
tions of parties not before the Court for it to be facially
challenged on overbreadth grounds." Id. at 801 (citations
omitted).
Chappell argues that the statutory clause forbidding indi-
viduals from "falsely assum[ing] or pretend[ing]" to be a law
enforcement officer is unconstitutionally overbroad. But
because Chappell has failed to show any "realistic danger"
that the Virginia impersonation statute will significantly com-
promise anyone’s First Amendment rights, we need not enter-
tain his challenge. The Supreme Court’s reasoning in
Members of City Council of L.A. is on point: "Appellees have
simply failed to demonstrate a realistic danger that the ordi-
nance will significantly compromise recognized First Amend-
ment protections of individuals not before the Court. It would
therefore be inappropriate in this case to entertain an over-
breadth challenge to the ordinance." Id. at 802; see also S.F.
Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522,
536-37 n.15 (1987). So too here. There is not a "realistic dan-
ger" that kids will be chilled out of costume parties or actors
deterred from taking roles as policemen for fear of prosecu-
tion under Virginia Code § 18.2-174. For unlike in United
States v. Stevens, 130 S. Ct. 1577 (2010), where the Court
worried that a statute aimed at the niche markets for dogfight-
ing depictions and crush videos might hinder the much larger
market for hunting magazines and hunting videos, see id. at
1592, there is no risk here that the statute’s very existence will
cause third parties to refrain from constitutionally protected
speech.
Moreover, far from significantly compromising "recog-
nized First Amendment protections," Virginia’s police imper-
sonation statute prohibits a species of identity theft in which
there is little or no communicative value. This class of iden-
tity theft plays "no essential part of any exposition of ideas."
Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).
UNITED STATES v. CHAPPELL 11
And it is more in the nature of conduct than speech. Chappell,
for instance, did more than falsely state he was a Deputy
Sheriff: he pretended to be a police officer by implying that
he left his credentials at home, volunteering his driver’s
license, pointing out that he was depicted in uniform in the
license photo, and making up a false identification number.
As the Supreme Court has repeated,
facial overbreadth adjudication is an exception to our
traditional rules of practice and . . . its function, a
limited one at the outset, attenuates as the otherwise
unprotected behavior that it forbids the State to sanc-
tion moves from "pure speech" toward conduct and
that conduct — even if expressive — falls within the
scope of otherwise valid criminal laws . . . .
Broadrick, 413 U.S. at 615; see also L.A. Police Dep’t, 528
U.S. at 39-40; Ferber, 458 U.S. at 770. Because the behavior
prohibited by § 18.2-174 is closer to conduct than speech, this
is a particularly inappropriate case in which to entertain the
"strong medicine" of an overbreadth challenge.
Furthermore, even applying the overbreadth doctrine,
Chappell’s challenge has no merit. Under the overbreadth
analysis, a law that restricts speech may be invalidated only
if its realistic unconstitutional applications are "substantial,
not only in an absolute sense, but also relative to the statute’s
plainly legitimate sweep." United States v. Williams, 553 U.S.
285, 292 (2008) (emphasis in original). Neither condition is
satisfied here. The statute’s legitimate sweep is considerable,
and it is difficult to show a "substantial" number of unconsti-
tutional applications when appellant does not point to even
one, at least not to one that actually took place. His musings
on Hollywood actors and Halloween dress do not satisfy this
requirement because they are based on speculation, not actual
fact. As the Court explained in Virginia v. Hicks, 539 U.S.
113 (2003), "The overbreadth claimant bears the burden of
demonstrating, ‘from the text of [the law] and from actual
12 UNITED STATES v. CHAPPELL
fact,’ that substantial overbreadth exists." Id. at 122 (emphasis
added). That demonstration is absent here.
III.
A.
Chappell finally seeks support from United States v. Alva-
rez, which held the Stolen Valor Act, 18 U.S.C. § 704(b),
facially unconstitutional as a content-based restriction on
speech. No. 11-210, slip op. at 3 (U.S. June 28, 2012) (plural-
ity opinion).2 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 hon-
ors and because the Act did not represent a sufficiently nar-
row 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 dispro-
portionate 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). Significantly, no Jus-
tice thought it advisable to drape a broad cloak of constitu-
tional protection over actionable fraud, identity theft, or the
impersonation of law enforcement officers.
2
The Stolen Valor Act provides that "[w]hoever falsely represents him-
self 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." 18 U.S.C. § 704(b).
UNITED STATES v. CHAPPELL 13
Contrary to Chappell’s assertions, Alvarez supports our
conclusion that § 18.2-174 is not facially invalid under the
First Amendment. To begin with, the Supreme Court distin-
guished the Stolen Valor Act, which criminalized "pure
speech," from a number of constitutionally permissible stat-
utes that regulate speech in a manner that "implicate[s] fraud
or speech integral to criminal conduct." Id. at 4, 9 (plurality
opinion). 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 Gov-
ernment." Id. at 8. Indeed, each of the Court’s opinions
expressly confirmed the constitutionality of a law bearing
striking similarities to the one before us: 18 U.S.C. § 912, the
federal statute prohibiting impersonation of government offi-
cers. Id. at 9; id. at 6 (Breyer, J., concurring in the judgment);
id. at 10 (Alito, J., dissenting).3 Alvarez also cites with
approval another federal statute similar to the one at bar,
3
This statute provides that "[w]hoever falsely assumes or pretends to be
an officer or employee acting under the authority of the United States or
any department, agency or officer thereof, and acts as such . . . shall be
fined under this title or imprisoned not more than three years, or both." 18
U.S.C. § 912.
Chappell and the dissent argue that this statute is distinguishable from
§ 18.2-174 because it requires an offender not only to assume or pretend
to be a peace officer, but also to "act[] as such." See post at 19-20. But that
misconceives the import of § 912 to our analysis. The Supreme Court’s
express recognition of § 912’s validity in Alvarez is relevant not because
§ 18.2-174 is identical to § 912 (it is not), but rather because it shows that
§ 18.2-174, as part of a family of statutes aimed at deterring law enforce-
ment impersonations, has a plainly legitimate sweep. Moreover, seven of
the nine Justices concluding that § 912 is legitimate made no reference to
the "acts as such" requirement, see Alvarez, No. slip op. at 9 (plurality
opinion); id. at 10-11 & n.14 (Alito, J., dissenting), and even Justice
Breyer’s opinion does not indicate that this requirement is the sine qua
non of officer impersonation statutes, see id. at 6 (Breyer, J., concurring
in the judgment). At bottom, because Alvarez confirms that § 18.2-174 has
a plainly legitimate sweep, and certainly where an offender pretends to be
an officer and acts as such, we see no great profit in being drawn into an
extended semantic debate about what constitutes "acting" and what does
not.
14 UNITED STATES v. CHAPPELL
which prohibits the "unauthorized use of the names of federal
agencies such as the Federal Bureau of Investigation." 18
U.S.C. § 709. These impersonation statutes, Alvarez explains,
are constitutional because they do more than "merely restrict[]
false speech"; they also "protect the integrity of Government
processes" and "maintain the general good repute and dignity
of government service itself." Slip op. at 9 (plurality opinion)
(quoting United States v. Lepowitch, 318 U.S. 702, 704
(1943)). Thus, far from supporting Chappell’s argument,
Alvarez instead confirms that § 18.2-174 speaks to the very
real problem of law enforcement impersonations and the mis-
fortunes that can flow from them.
Moreover, to entertain a facial challenge in this case could
quickly lead to 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. Federal anti-impersonation statutes
encompass a variety of contexts and differ in their exact
wording, but 18 U.S.C. § 911 provides an illustrative exam-
ple, prohibiting one from "falsely and willfully represent[ing]
himself to be a citizen of the United States." Accepting Chap-
pell’s challenge might place this federal law and others like
it in jeopardy. See also, e.g., 18 U.S.C. § 914 (impersonating
creditors of the United States); id. § 915 (impersonating for-
eign diplomats); id. § 917 (impersonating Red Cross mem-
bers). Whether differing impersonation statues could be fairly
distinguished from the one at hand remains an open question,
but the risks appellant invites by embracing the sweeping tac-
tic of facial statutory invalidation are apparent. In addition, a
number of states have laws that proscribe the same type of
law enforcement impersonation as § 18.2-174 using materi-
ally indistinguishable language. See, e.g., Kan. Stat. § 21-
5917 (punishing one who "represents oneself" as an officer);
Miss. Code § 97-7-43 (punishing one who "falsely and will-
fully assumes or pretends to be an officer"); N.D. Cent. Code
§ 12.1-13-04 (punishing one who "falsely pretends to be" an
officer). To accept Chappell’s claim in this case would call
UNITED STATES v. CHAPPELL 15
these statutes into question as well — all, again, despite the
Supreme Court’s supportive statements about law enforce-
ment anti-impersonation statutes in Alvarez.
B.
Other aspects of Alvarez reinforce our decision. As a facial
matter, the Stolen Valor Act and § 18.2-174 are much differ-
ent in approach. In striking down the Stolen Valor Act, the
Supreme Court noted that it covered persons (such as Alvarez
himself) who made false statements about military decora-
tions without the intent to "secure employment or financial
benefits." Id. at 1-2. Section 18.2-174, by contrast, prevents
precisely this kind of material benefit. Even acknowledging
that appellant brings only a facial claim, Chappell’s own con-
duct serves as an illustration of this distinction. Chappell did
not make the false claim of being a police officer as mere "bar
stool braggadocio," id. at 8 (Breyer, J., concurring in the judg-
ment), but rather for the material purpose of avoiding a speed-
ing ticket. Impersonation with this latter purpose bears a
closer kinship to the kind of identity theft that a state can
surely proscribe consistent with the First Amendment. For
"[w]here false claims are made to effect a fraud or secure
moneys or other valuable considerations, . . . it is well estab-
lished that the Government may restrict speech without
affronting the First Amendment." Id. at 11 (plurality opinion).
Alvarez also stresses the importance of counterspeech —
suggesting an online database cataloging Medal of Honor
recipients — as a disinfectant that can achieve the govern-
ment’s interest in preventing lies about military honors in a
less speech-restrictive manner. Id. at 17. Yet the same coun-
terspeech simply cannot "suffice to achieve" the govern-
ment’s interest in this case. Id. at 15. An individual who is
approached by a stranger pretending to be a police officer
may not have the ability, much less the time, to consult a data-
base of actual police officers. Counterspeech may also be less
than effective in cases like Chappell’s, where a person claims
16 UNITED STATES v. CHAPPELL
to be a police officer in an attempt to evade punishment.
Assuming for the moment that databases of the untold num-
bers of local, state, and federal peace officers could be accu-
rately maintained and productively utilized, the addition of
this search may impair both the government’s legitimate
desire to limit the length of detentions and the statute’s legiti-
mate aim of deterring false representations that could lead to
danger if taken as true.
Alvarez also provides support for our determination that
§ 18.2-174 is not susceptible to a "substantial number" of
unconstitutional applications. United States v. Stevens, 130 S.
Ct. 1577, 1587 (2010) (internal quotation marks omitted). In
particular, Alvarez supports our holding that § 18.2-174 con-
tains a mens rea requirement, which properly limits the scope
of the statute and thereby undercuts Chappell’s claim of sub-
stantial overbreadth. See ante at 6-7. Moreover, Alvarez
emphasizes that criminal statutes should not be read to pro-
scribe representations that "cannot reasonably be interpreted
as stating actual facts about an individual." Slip op. at 10 (plu-
rality opinion) (quoting Milkovich v. Lorain Journal Co., 497
U.S. 1, 20 (1990)). Yet this is precisely how Chappell would
have us read § 18.2-174: as prohibiting a child from playing
cops and robbers or an adult from donning a police officer
costume at a Halloween party even though such persons "can-
not reasonably be interpreted as stating" that they are "actual-
[ly]" police officers. In fact, Alvarez specifically rejects one
of the very hypotheticals that Chappell attempts to muster in
his favor: the notion that this statute might apply against an
actor playing a police officer at "a theatrical performance."
Slip op. at 10 (plurality opinion).
Finally, even if some other unconstitutional application of
§ 18.2-174 could be imagined notwithstanding all of the
above, the logic of the controlling concurring opinion in Alva-
rez nevertheless underscores the need to uphold the law. See
Marks v. United States, 430 U.S. 188, 193 (1977) (noting that
where there is a plurality plus a concurrence in the judgment,
UNITED STATES v. CHAPPELL 17
the holding should be viewed as the position taken by the Jus-
tices who concurred on the "narrowest grounds"). Under Jus-
tice Breyer’s proportional perspective, there are simply too
many legitimate applications of § 18.2-174 to hold the law
facially null. Put simply, we decline to strike down a statute
that prohibits lies "that are particularly likely to produce
harm." Alvarez, slip op. at 5 (Breyer, J., concurring in the
judgment). The statute does not proscribe all untruths about
one’s occupation or accomplishments, but only lies that may
trick ordinary citizens into the erroneous belief that someone
is a peace officer and that may in turn "deceive[]" a person
into following a harmful "course of action he would not have
pursued but for the deceitful conduct." Id. at 6 (internal quota-
tion marks and alterations omitted).
IV.
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 bene-
fit. This strikes us as a complete inversion of the traditional
balance courts are charged with maintaining.
In short, this is a poor case in which to facially invalidate
a state statute. The Virginia statute serves the important —
indeed compelling — interest of promoting public safety by
prohibiting an individual from intentionally impersonating a
peace officer for a broad range of improper aims, among them
attempting to evade state-imposed sanctions. Chappell’s con-
duct is precisely what the Virginia legislature had in mind in
enacting this law. To strike down the statute in this instance
would exhibit disrespect for that legislative body and would
18 UNITED STATES v. CHAPPELL
allow the most far-fetched scenarios to serve as a basis for
facially voiding public enactments. Some as-applied chal-
lenge may just possibly at some point in time prove meritori-
ous, but we will await that day rather than strike down a
statute serving critical public safety goals on purely hypotheti-
cal — indeed fanciful — grounds. We expect legislatures to
draft statutes that are narrow in focus, applicable to a specific
subset of conduct, and reasonably clear. This statute meets
those expectations. We do not expect legislatures to foresee
and address every conceivable scenario to which a generally
worded statute might be imagined to apply. Such laws would
be difficult to draft and even more difficult to pass. The reali-
ties of the legislative process deserve some recognition and
respect.
The First Amendment is a central and essential part of our
constitutional life. For that reason, it becomes especially
important to identify those instances when free speech values
are truly implicated and those when they are not. Falsely iden-
tifying oneself as a policeman in order to get out of a speeding
ticket is simply not the kind of expressive conduct the Fram-
ers of our first and one of our greatest amendments had in
mind. Accordingly, the judgment of the district court is
affirmed.
AFFIRMED
WYNN, Circuit Judge, dissenting:
This case involves a content-based restriction on
speech—namely, false claims of being a police officer. Just a
few weeks ago, the Supreme Court addressed the very ques-
tion of whether false statements, generally, are afforded First
Amendment protection and "reject[ed] the notion that false
speech should be in a general category that is presumptively
unprotected." United States v. Alvarez, No. 11-210, slip op. at
9 (U.S. June 28, 2012) (plurality opinion).1 A straightforward
1
In Alvarez, the Court invalidated the Stolen Valor Act, which made it
a crime to "falsely respresen[t]" oneself "to have been awarded any deco-
UNITED STATES v. CHAPPELL 19
application of Alvarez’s analysis and holding compels the
invalidation of the challenged provision at issue in this case.
Accordingly, I respectfully dissent from the contrary view of
my colleagues in the majority, who seek to avoid Alvarez’s
holding by undertaking the overbreadth analysis of the three
dissenting justices in Alvarez. Moreover, even if an over-
breadth analysis were appropriate in this case, the challenged
provision in the Virginia statute would still fail to pass consti-
tutional muster.
I.
A.
The majority opinion seeks to avoid the clear import of
Alvarez by cherry-picking language in the plurality and con-
curring opinions approving of impersonation statutes as gen-
erally consistent with the First Amendment. See, e.g., id. at 8
(plurality opinion) ("[C]ourts generally have found permissi-
ble . . . prohibitions on the false representation that one is
speaking as a Government official[.]"). But a complete analy-
sis of Alvarez’s references to impersonation statutes reveals
that the majority opinion’s reliance on this dicta is mistaken.
Most critically, the impersonation statutes referenced in the
pertinent dicta, notably the federal impersonation statute, con-
tain elements not present in the challenged portion of the Vir-
ginia statute at issue here. Justice Breyer’s concurrence notes
that "[s]tatutes forbidding impersonation of a public official
typically focus on acts of impersonation, not mere speech,
and may require a showing that, for example, someone was
deceived into following a ‘course [of action] he would not
have pursued but for the deceitful conduct.’"2 See id. at 6
ration or medal authorized by Congress for the Armed Forces of the
United States." Slip op. at 15, 19 (Breyer, J., concurring) (citing 18 U.S.C.
§ 704(b)).
2
The majority opinion acknowledges that the impersonation statute cited
by both the plurality and concurring opinions, 18 U.S.C. § 912, differs
20 UNITED STATES v. CHAPPELL
(Breyer, J., concurring in the judgment) (emphasis in original)
(quoting United States v. Lepowitch, 318 U.S. 702, 704
(1943)); see also 18 U.S.C. § 912 (prohibiting assuming or
pretending to be a government official and either "act[ing] as
such" or "obtain[ing] any money, paper, document, or thing
of value") cited with approval in Alvarez, slip op. at 9 (plural-
ity opinion).
Here, by contrast, the second part of Va. Code § 18.2-174,
unlike the federal impersonation statute cited in Alvarez,
merely restricts false speech. It 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.
B.
Indeed, to conduct a proper analysis of the issue in this
case, we must respect that in Alvarez, the Supreme Court, in
invalidating the Stolen Valor Act, unequivocally explained
that:
from our statute, mainly because it requires that an impersonator of an
officer, beyond falsely claiming to be an officer, "act [] as such." See ante
at 13 n.3. The majority dismisses this distinction as irrelevant, stating that
§ 18.2-174 is just a part of a "family of statutes," such as the one above,
with a "plainly legitimate sweep." See ante at 13 n.3. But this conclusory
statement is not in line with Alvarez, which we are obligated to follow.
Justice Breyer’s opinion distinguishes the Stolen Valor Act from 18
U.S.C. § 912 by emphasizing that "statutes forbidding impersonation of a
public official typically focus on acts of impersonation, not mere speech."
Alvarez, slip op. at 6 (Breyer, J., concurring in the judgment) (emphasis
in original). Justice Breyer and Chappell raise the same distinction, and
this statute raises the same First Amendment concern as the Stolen Valor
Act.
UNITED STATES v. CHAPPELL 21
Permitting the government to decree this speech to
be a criminal offense, whether shouted from the
rooftops or made in a barely audible whisper, would
endorse government authority to compile a list of
subjects about which false statements are punishable.
That governmental power has no clear limiting prin-
ciple. . . . Were the Court to hold that the interest in
truthful discourse alone is sufficient to sustain a ban
on speech, absent any evidence that the speech was
used to gain a material advantage, it would give gov-
ernment a broad censorial power unprecedented in
this Court’s cases or in our constitutional tradition.
The mere potential for the exercise of that power
casts a chill, a chill the First Amendment cannot per-
mit if free speech, thought, and discourse are to
remain a foundation of our freedom.
Slip op. at 11.
Because false statements, including the ones at issue here,
are not categorically excluded from First Amendment protec-
tions, this case, like Alvarez, requires an examination of the
degree of fit between the governmental interest at stake and
the challenged statutory provision. See id. at 1 (Breyer, J.,
concurring in the judgment) ("In determining whether a stat-
ute violates the First Amendment, this Court has often found
it appropriate to examine the fit between statutory ends and
means.").
It is significant to point out that neither the four-justice plu-
rality opinion nor the two-justice concurring opinion under-
took an overbreadth analysis. Instead, the four-justice
plurality in Alvarez invalidated the Stolen Valor Act under
"exacting scrutiny," finding that the statute was not "actually
necessary to achieve the Government’s stated interest," as
exacting, or strict, scrutiny requires. Id. at 14-15 (plurality
opinion). Additionally, in a concurring opinion, Justice
22 UNITED STATES v. CHAPPELL
Breyer, joined by Justice Kagan, applied "intermediate scru-
tiny," or "proportionality," which:
take[s] account of the seriousness of the speech-
related harm the provision will likely cause, the
nature and importance of the provision’s countervail-
ing objective, the extent to which the provision will
tend to achieve those objectives, and whether there
are other, less restrictive ways of doing so. Ulti-
mately the Court must consider whether the statute
works speech-related harm that is out of proportion
to its justifications.
Id. at 1 (Breyer, J., concurring in the judgment). The concur-
ring opinion determined that there were less restrictive ways
to achieve the important government interest, and that the
Stolen Valor Act, therefore, did disproportionate constitu-
tional harm. Id. at 10 (Breyer, J., concurring in the judgment).
Here, whether viewed under the strict scrutiny favored by
Alvarez’s plurality opinion, or the intermediate scrutiny
favored by its concurring opinion, the challenged Virginia
statutory provision is invalid. While I agree with the majority
opinion that the government has a compelling interest in pub-
lic safety and the repute of its law enforcement officials, see
ante at 5, I strongly disagree with the contention that the pur-
pose of this statute is to prevent individuals from claiming to
be off-duty police officers to avoid speeding tickets. See ante
at 6 (attempting to avoid a speeding ticket by falsely claiming
to be a police officer is "precisely the kind of conduct that the
statute was designed to prohibit"). 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
UNITED STATES v. CHAPPELL 23
attempting to obtain benefits that police officers should not
themselves receive.
Alvarez binds us to hold that even if the government inter-
est 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. Like the Stolen Valor
Act, Virginia’s statute "applies in family, social, or other pri-
vate contexts, where lies will often cause little harm. It also
applies in political contexts . . . [where] the risk of censorious
selectivity by prosecutors is also high." Alvarez, slip op. at 8
(Breyer, J., concurring in the judgment). Further, even requir-
ing that the falsehood be intentional, the statute still covers a
wide range of government officials—"other peace officer[s]"
for example—creating a risk that truthful speech will be
chilled as a "speaker might still be worried about being prose-
cuted for a careless false statement, even if he does not have
the intent required to render him liable."3 Id.Moreover, while the majority opinion is correct that Chap-
pell was not engaged in "bar stool braggadocio," ante at 15
(quoting Alvarez, slip op. at 8 (Breyer, J., concurring in the
judgment)), it fails to address the critical issue of whether the
statute would apply "where it should not be applied, for exam-
ple, to bar stool braggadocio or, in the political arena, subtly
but selectively to speakers that the Government does not
3
In Alvarez, Justice Breyer assumed that the Stolen Valor Act included
a mens rea requirement, but held that false speech, even intentional lies,
receive First Amendment protection. See Alvarez, slip op. at 3 (Breyer, J.,
concurring in the judgment) (reading the statute "favorably to the govern-
ment as criminalizing only false factual statements made with knowledge
of their falsity and with the intent that they be taken as true"). While I do
not read a mens rea requirement into the challenged Virginia statutory pro-
vision, even if the provision did require that the speaker intend that her
statements be taken as true, or that her pretending be believed, it would
not affect the analysis here, as Justice Breyer’s concurring opinion, along
with the plurality opinion, concluded that the Stolen Valor Act, even with
a mens rea requirement, violated the First Amendment. Id. at 18 (plurality
opinion); id. at 10 (Breyer, J., concurring in the judgment).
24 UNITED STATES v. CHAPPELL
like." Alvarez, slip op. at 8 (Breyer, J., concurring in the judg-
ment). In criminalizing merely the false statement that one is
employed as a police officer, the statute surely would apply
to any number of white lies, including bar stool braggadocio.4
In short, the statute criminalizes enumerable statements that
do not implicate the government’s interest in public safety.
At issue then, is whether the government may achieve its
interest in a way that places less of a burden upon protected
speech. The multitude of states that have more finely-tailored
statutes than Virginia’s demonstrates that, yes, the govern-
ment’s interest in the repute of its law enforcement officers
can be achieved in a less burdensome way. See, e.g., 18
U.S.C. § 912 (criminalizing assuming or pretending to be a
government officer and either "act[ing] as such" or obtaining
a thing of value); Ala. Code § 13A-10-11 ("A person commits
the crime of impersonating a peace officer if he falsely pre-
tends to be a peace officer and does any act in that capacity");
Conn. Gen. Stat. § 53a-130a (requiring an "intent to induce
another person to submit to such pretended official authority
or otherwise to act in reliance upon that pretense"); Fla. Stat.
§ 843.08 (criminalizing pretending to be a police officer and
4
There is no basis for the majority opinion’s contention that "the statute
does not proscribe all untruths about one’s occupation or accomplish-
ments, but only lies that may trick ordinary citizens into the erroneous
belief that someone is a peace officer and that may in turn deceive a per-
son into following a harmful ‘course of action he would not have pursued
but for the deceitful conduct.’" Ante at 17 (quoting Alvarez, slip op. at 5
(Breyer, J., concurring in the judgment)). Critically, there was no such
harm here because there is no "legally cognizable harm associated with
[Chappell’s] false statement." Alvarez, slip op. at 6-7 (plurality opinion).
The statute was violated by Chappell the moment he said he was a police
officer. His claim did not threaten the government’s interest in public
safety and was easily debunked by the arresting officer. The arresting offi-
cer’s privacy was not invaded, nor was his safety, or anyone else’s, endan-
gered. The arresting officer should not have taken a different course of
action when Chappell claimed to be an off-duty police officer than he
would have taken otherwise because even if Chappell had truly been a
police officer, he should have received a citation all the same.
UNITED STATES v. CHAPPELL 25
"taking upon himself or herself to act as such, or to require
any other person to aid or assist him or her in a matter pertain-
ing to the duty of any such officer"); Mass. Gen. Laws ch.
268, § 33 (requiring that the impersonator "acts as [a police
officer] or requires a person to aid or assist him in a matter
pertaining to the duty of such officer"); N.J. Stat. § 2C:28-8
(requiring "purpose to induce another to submit to such pre-
tended official authority or otherwise to act in reliance upon
that pretense").
Neither the government nor the majority opinion has
explained why a more narrowly tailored statute would not
work here. The majority contends that "counterspeech may
also be less than effective in cases like Chappell’s, where a
person claims to be a police officer to evade punishment."
Ante at 15-16. However, the case before us contradicts the
majority opinion’s position. The police officer here was able
to debunk Chappell’s falsity without much difficulty. Further,
the need for counterspeech did not exist in this situation. An
off-duty police officer should not be able to evade punishment
for speeding, so there should be no need to check a database
of police officers to determine whether a claim like Chap-
pell’s is true.
I particularly disagree with my fine colleagues’ attempt to
distinguish Alvarez on the basis that unlike the Stolen Valor
Act, "Section 18.2-174 . . . serves interests repeatedly
acknowledged by the Supreme Court to be compelling." Ante
at 9 n.1. I cannot join in that distinction because it reflects a
misreading of Alvarez. All nine Justices in Alvarez agreed that
the government’s interest in enacting the Stolen Valor Act
was a compelling interest. See Alvarez, slip op. at 12-13 (plu-
rality opinion) ("[T]o recite the Government’s compelling
interests is not to end the matter."); id., slip op. at 8 (Breyer,
J., concurring in the judgment) ("Like both the plurality and
the dissent, I believe the statute nonetheless has substantial
justification."); id., slip op. at 17 (Alito, J., dissenting) ("The
Stolen Valor Act . . . [was] enacted to address an important
26 UNITED STATES v. CHAPPELL
problem."). The constitutional defect of the Stolen Valor Act
was not the absence of an underlying compelling interest but
instead the lack of fit between its statutory language and
unmistakable compelling interest. See id., slip op. at 11 (plu-
rality opinion) ("Where false claims are made to effect a fraud
or secure moneys or other valuable considerations . . . it is
well established that the Government may restrict speech
without affronting the First Amendment. But the Stolen Valor
Act is not so limited in its reach." (citation omitted)); id., slip
op. at 9 (Breyer, J., concurring in the judgment) ("[I]t should
be possible significantly to diminish or eliminate [the statute’s
constitutional defects] by enacting a similar but more finely
tailored statute. . . . [which] might . . . insist upon a showing
that the false statement caused specific harm or at least was
material."). Indeed, it will not be surprising if Congress
responds to the Supreme Court’s decision in Alvarez with a
more narrowly tailored version of the Stolen Valor Act.
Analogously, the constitutional defect in the second part of
Va. Code § 18.2-174 is not the absence of a compelling inter-
est—the compelling interest is obvious and is indeed recog-
nized by Alvarez—but instead the lack of fit between its
statutory language and unmistakable compelling interest.5
5
It is important to note that the first part of Section 18.2-174, which pro-
hibits "falsely assum[ing] or exercis[ing] the functions, powers, duties and
privileges incident to the office of sheriff, police officer, marshal, or other
peace officer," is not subject to constitutional challenge and that, accord-
ingly, the majority opinion’s concern for invalidating a statute that "serves
interests repeatedly acknowledged by the Supreme Court to be compel-
ling" is misplaced. Given that this first part of Section 18.2-174 would
remain intact irrespective of our decision today, I fail to understand the
majority opinion’s view that acts of pretending to be a police officer so as
to board an airplane or to abduct a child would some how go unregulated
by a decision invalidating Section 18.2-174’s constitutionally infirm
clause. To be clear, such criminal acts—in addition to violating laws
against, among other things, kidnapping—would violate the first part of
Section 18.2-174, as they involve assuming, through acts, the duties and
privileges of being a police officer, such as obtaining the authority to
board an airplane or enter a home.
UNITED STATES v. CHAPPELL 27
C.
In sum, the Supreme Court, in its most recent term,
addressed a statute that, like this one, criminalized mere false
speech. Notwithstanding the unambiguous symmetry between
Alvarez and the present case, the majority opinion finds it
"difficult to understand why" Alvarez "binds us." Ante at 7.
Stare decisis, however, requires that we follow the judgment
in Alvarez and not, as the majority opinion has done, cherry-
pick dicta from Alvarez but decline to apply its holding and
reasoning. Although all nine justices of the Supreme Court
recognized in Alvarez that the Stolen Valor Act served a com-
pelling interest, see, e.g., Alvarez, slip op. at 8 (Breyer, J.,
concurring in the judgment) ("[It] seeks to protect the interests
of those who have sacrificed their health and life for their
country[ and] serves this interest by seeking to preserve intact
the country’s recognition of that sacrifice in the form of mili-
tary honors."), the Supreme Court nonetheless invalidated the
statute for want of narrow tailoring. The government interest
underlying the Stolen Valor Act—in my view, if not the
majority’s—is no less compelling than the government’s
interest in prohibiting a retired police officer from stating that
he is a police officer for the purpose of seeking to evade a
speeding ticket.6 Accordingly, as in Alvarez, the second part
6
The majority opinion contends that invalidating Section 18.2-174
would place "numerous federal and state impersonation statutes at risk."
Ante at 14-15. As an initial matter, the majority opinion’s contention is
undermined by the very statutes it cites because they criminalize more
than mere false speech. See 18 U.S.C. § 914 (impersonating a creditor of
the United States and committing a specified act); 18 U.S.C. § 915 (imper-
sonating diplomats and acting as such or obtaining a thing of value); 18
U.S.C. § 917 (impersonating Red Cross members "for the purpose of
soliciting, collecting, or receiving money or material"). Further, the pro-
tections of the First Amendment are not subject to a convenience analysis.
The Supreme Court in Alvarez provided us with an analytical framework
when considering restrictions on false speech. That framework does not
ignore the important government interests at stake, but, rather, asks if the
restrictions on protected speech are sufficiently narrowly tailored to that
interest.
28 UNITED STATES v. CHAPPELL
of Section 18.2-174, with its sweeping language criminalizing
false statements without any clear limiting principles on the
government’s power, must fail constitutional scrutiny.
II.
The majority opinion seeks to avoid Alvarez’s holding by
adopting the overbreadth analysis that the Alvarez dissenting
opinion suggests is required yet misapplied by the Alvarez
plurality and concurrence. See Alvarez, slip op. at 15 (Alito,
J., dissenting) ("But to strike down a statute on the basis that
it is overbroad, it is necessary to show that the statute’s over-
breadth is substantial, not only in an absolute sense, but also
relative to its plainly legitimate sweep. The plurality and the
concurrence do not even attempt to make this showing." (quo-
tation marks, alterations and citation omitted)).
Assuming, for the sake of argument, that an overbreadth
analysis were appropriate in this case, the challenged provi-
sion in the Virginia statute would still not survive. Indeed, the
challenged statutory provision requires neither an intent to
defraud nor an act undertaken while in the guise of being an
officer. Put simply, the challenged portion of the statute cap-
tures a substantial amount of legitimate speech and expressive
conduct. I would conclude that it is therefore unconstitution-
ally overbroad.
A.
It is well-settled that the United States Constitution pro-
vides protection "from overbroad laws that chill speech within
the First Amendment’s vast and privileged sphere." Ashcroft
v. Free Speech Coal., 535 U.S. 234, 244 (2002). A law is
unconstitutionally overbroad if it regulates substantially more
speech than the Constitution allows to be regulated.
Contrary to the import of the majority opinion, courts have
"long recognized that a statute may be attacked as ‘void on its
UNITED STATES v. CHAPPELL 29
face’ even though the conduct of the litigant might have been
legitimately prosecuted under a more narrowly drafted law."
1 Smolla & Nimmer on Freedom of Speech § 6:4 (2011).
Thus, as the Supreme Court has stated,
we have consistently allowed attacks on overly
broad statutes with no requirement that the person
making the attack demonstrate that his own conduct
could not be regulated by a statute drawn with the
requisite narrow specificity. We have fashioned this
exception to the usual rules governing standing,
because of the "***danger of tolerating, in the area
of First Amendment freedoms, the existence of a
penal statute susceptible of sweeping and improper
application."
Dombrowski v. Pfister, 380 U.S. 479, 486-87 (1965) (citations
omitted).
Because the prohibition against statutory enforcement that
accompanies a finding of overbreadth constitutes "strong
medicine," the Supreme Court has counseled lower courts to
declare statutes facially overbroad "sparingly and only as a
last resort." Broadrick v. Oklahoma, 413 U.S. 601, 613
(1973). Accordingly, "a law should not be invalidated for
overbreadth unless it reaches a substantial number of imper-
missible applications . . . ." New York v. Ferber, 458 U.S. 747,
771 (1982). Nevertheless, when a statute is in fact facially
overbroad, the Supreme Court has readily stricken it down.
See, e.g., United States v. Stevens, 130 S. Ct. 1577 (2010).
B.
As the Supreme Court recently underscored, "‘[t]he first
step in overbreadth analysis is to construe the challenged stat-
ute; it is impossible to determine whether a statute reaches too
far without first knowing what the statute covers.’" Stevens,
130 S. Ct. at 1587 (quoting United States v. Williams, 553
30 UNITED STATES v. CHAPPELL
U.S. 285, 293 (2008)). The Supreme Court thus instructs us
clearly to focus not on the particular facts of the case before
us, as the majority does, but on the challenged statute itself.
1.
Virginia Code § 18.2-174 states that "[a]ny person who
shall falsely assume or exercise the functions, powers, duties
and privileges incident to the office of sheriff, police officer,
marshal, or other peace officer, or who shall falsely assume or
pretend to be any such officer, shall be deemed guilty of a
Class I misdemeanor." (emphasis added). Chappell challenges
only the latter, emphasized clause of the statute, under which
he was convicted.
Neither this statute nor the definitional statute in the same
chapter defines the terms "false," "assume," or "pretend." We
should therefore accord the terms their ordinary meaning. See
United States v. Thompson-Riviere, 561 F.3d 345, 355-56 (4th
Cir. 2009). The American Heritage Dictionary defines "false"
as "[c]ontrary to fact or truth." American Heritage Dictionary
638 (4th ed. 2009). It defines "assume" as "[t]o take upon
oneself." Id. at 110. And it defines "pretend" as "[t]o give a
false appearance of; feign." Id. at 1390. In other words, this
statute criminalizes, contrary to fact, feigning being an offi-
cer.
The government suggests that the word "falsely" modifies
both assume and pretend and that it injects an intent-to-
defraud component into the statute that thereby saves it from
unconstitutional overbreadth. First, it is at best unclear that
the word "falsely" modifies the word pretend and not just the
word assume. See Va. Code § 18.2-174 ("or who shall falsely
assume or pretend to be any such officer. . . ."). Because the
definition of "pretend" inherently includes an element of fal-
sity, as the dictionary definition quoted above illustrates, it
makes little sense that "falsely" should modify "pretend."
UNITED STATES v. CHAPPELL 31
Further, even assuming for the sake of argument that
falsely modifies pretend, I fail to see how one would leap
from that to "a defendant must hold him or herself out as a
police officer in a way that could at least potentially mislead
or be for an improper purpose[,]" as the government contends.
Appellee’s Br. at 10. The statute does not even hint at such
limiting language; it does quite the opposite.
While the first part of the statute prohibits the act of hold-
ing oneself out as a police officer, the second part contains no
act requirement and criminalizes mere false speech. The first
part of the statute criminalizes "[a]ny person who shall falsely
assume or exercise the functions, powers, duties and privi-
leges incident to the office of sheriff, police officer, marshal,
or other peace officer . . . ." Va. Code § 18.2-174. The first
part of the statute implies that beyond claiming or pretending
to be an officer, a defendant must act as such and "hold him
or herself out as a police officer . . . ." Appellee’s Br. at 10.
To interpret the second clause as requiring the same thing
would render it superfluous, in violation of the rules of statu-
tory construction. See Scott v. United States, 328 F.3d 132,
139 (4th Cir. 2003) (stating that courts must "give effect to
every provision and word in a statute and avoid any interpre-
tation that may render statutory terms meaningless or super-
fluous"). Therefore, the second clause is best read as applying
to situations where individuals claim or even pretend to be
police officers, even if they do nothing associated with the
"functions, powers, duties and privileges" of being an officer,
and even if they do not intend to defraud another.
Crucially, the second part of the statute applies even where,
as here, an individual claims to be an off-duty police officer.
Chappell made no claim to be on-duty as a police officer,
speeding for some legitimate purpose, but only claimed that
he was employed as a police officer. In doing so, he was not
acting as a police officer or assuming any of the "functions,
powers, duties and privileges" of being an officer, but simply
stating a false fact about his employment.
32 UNITED STATES v. CHAPPELL
Moreover, the statute does not require any particular intent
when claiming to be a police officer. Looking at the statute in
context, the very next section in the pertinent code chapter,
Virginia Code § 18.2-174.1, expressly criminalizes only
"willfully impersonat[ing], with the intent to make another
believe he is" certain other officials such as a fire fighter. Sec-
tion 18.2-174.1 hails from the exact same year as the statute
at issue in this case—1975—and has always contained a mens
rea element. See Va. Code Ann. § 18.2-174.1, Historical and
Statutory Notes. Therefore, when the Virginia legislature
enacted these statutes, it clearly knew how to write such ele-
ments into statutes. But in the statute at issue here, Va. Code
§ 18.2-174, it chose not to do so. This Court is not at liberty
to override that decision but rather must respect the choice of
the state legislature that drafted the statute.
As stated above, giving the terms in the second clause their
natural meaning, this statute criminalizes, contrary to fact,
feigning being an officer. This aspect of the statute is undeni-
ably broad. It covers 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. Indeed,
it would have covered Chappell, even if he had not attempted
to avoid a ticket but instead expressed his remorse for violat-
ing a traffic law, stating, "I am a police officer and should
have known better." Regardless of whether strict or intermedi-
ate scrutiny applies, I believe that this statute reaches a sub-
stantial number of impermissible applications and is thus
overbroad.7
7
As noted, Virginia is far from the only jurisdiction with an imperson-
ation statute. To be sure, there are many such state statutes, as well as a
federal statute. Notably, the vast majority of those statutes require some-
thing more than just "pretending" to be held criminally liable. They
require: a mens rea such as intent to defraud another, see, e.g., Conn. Gen.
Stat. § 53a-130a, Ga. Code § 16-10-23, and N.J. Stat. § 2C:28-8; or acting
as an officer, see, e.g., 18 U.S.C. § 912, Ala. Code § 13A-10-11, Fla. Stat.
§ 843.08, and Mass. Gen. Laws ch. 268, § 33. Looking to other imperson-
ation statutes only underscores that the challenged clause of the Virginia
statute, criminalizing mere pretending, or false speech, is problematic.
UNITED STATES v. CHAPPELL 33
2.
Of course, my conclusion that the challenged provision in
the Virginia statute is overbroad does not in any way indicate
that I question the importance of impersonation statutes as
such. I fully agree with the majority opinion that state imper-
sonation statutes can "‘protect citizens who would be harmed
or deceived by those acting under the color of authority.’"
Ante at 5 (quoting People v. Ellis, 696 N.E.2d 1, 3 (Ill. App.
Ct. 1998)). However, the challenged statutory provision does
not require "acting under the color of authority" but merely
"pretending" to be an officer for whatever purpose. That
extreme breadth cannot pass constitutional muster.8
The government does not even attempt to argue that regu-
lating such speech and conduct would be constitutional. Nei-
ther does the majority opinion. Instead, both simply suggest
that these scenarios are far-fetched and that the statute would
not be enforced in such situations. First, I cannot agree that
they are far-fetched. It seems highly likely that these scenarios
occur with substantially greater frequency than someone pre-
tending to be an officer for nefarious purposes. Second, an
otherwise overbroad statute cannot be saved based on its his-
tory of past enforcement. See, e.g., Newsom ex rel. Newsom
v. Albemarle Cnty. Sch. Bd., 354 F.3d 249, 260 n.8 (4th Cir.
2003) (noting that even though a school dress code had been
enforced only to ban "images of gunmen aiming high-
powered firearms," this was insufficient to establish a limiting
construction when the dress code did "not even remotely sug-
8
The majority opinion states that "[f]alsely 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." Ante at 18. That may well be. The Framers
surely also did not craft the First Amendment to allow the likes of Mr.
Alvarez to falsely purport to have received the Congressional Medal of
Honor in a "pathetic attempt to gain respect that eluded him." Alvarez, slip
op. at 1 (plurality opinion). Nevertheless, the Supreme Court struck the
statute as violative of the First Amendment.
34 UNITED STATES v. CHAPPELL
gest" such a limitation). Convenient to its analysis, the major-
ity opinion has chosen to ignore that this Court, just last year,
struck an unconstitutionally overbroad statute that had never
been enforced against constitutionally protected expressive
conduct. See Legend Night Club v. Miller, 637 F.3d 291, 300
(4th Cir. 2011). Had the majority followed Legend Night
Club, then it would have recognized the irrelevance of its
claim that Chappell’s challenge is crippled by his failure to
"point to even one" case where Hollywood actors, Halloween
partiers, or others were prosecuted. Ante at 11.
Further, assertions about future enforcement also cannot
rescue a constitutionally infirm speech regulation. As the
Supreme Court recently made clear, "the First Amendment
protects against the Government; it does not leave us at the
mercy of noblesse oblige. We would not uphold an unconsti-
tutional statute merely because the Government promised to
use it responsibly." Stevens, 130 S. Ct. at 1591; see also Leg-
end Night Club, 637 F.3d at 300-01. The majority opinion
seems to suggest that prosecutors will interpret the statute
much more restrictively than its face suggests, presumably
thereby sparing the statute from constitutional problems. See
ante at 9. But as the Supreme Court noted in Stevens, the need
to point out that the challenged statute would be applied more
restrictively than its language permits simply underscores the
statute’s overbreadth. Stevens, 130 S. Ct. at 1591 ("The Gov-
ernment’s assurance that it will apply [the challenged statute]
far more restrictively than its language provides is pertinent
only as an implicit acknowledgment of the potential constitu-
tional problems with a more natural reading.").
The majority opinion posits that striking down the chal-
lenged clause at issue here "would exhibit disrespect" for the
Virginia legislature. Ante at 17-18. First, while I am highly
sensitive to the federalism concerns this case presents, I query
what role the majority opinion supposes our federal Constitu-
tion, with both its First Amendment and Supremacy Clause,
should play. Further, I underscore that Chappell does not
UNITED STATES v. CHAPPELL 35
challenge Virginia Code § 18.2-174 in its entirety but merely
one clause thereof. And the problematic clause can, and there-
fore should, be severed from the remainder of the statute. See
Free Enter. Fund v. Public Co. Accounting Oversight Bd.,
130 S. Ct. 3138, 3161 (2010) ("Generally speaking, when
confronting a constitutional flaw in a statute, we try to limit
the solution to the problem, severing any problematic portions
while leaving the remainder intact." (quotation marks omit-
ted)). This case is therefore not about "strik[ing] down the
statute," as the majority would have it, ante at 17, but merely
severing out an overbroad clause while leaving the remainder
of the statute intact.
Finally, it is out of respect for the Virginia legislature that
I would send the infirm clause back to that body for amend-
ment rather than pencil in some additional element concocted
by this Court in order to save the statute’s problematic clause.
As I note above, different states (and the federal government)
have adopted various additional elements, such as mens rea
requirements, that take those impersonation statutes out from
under a constitutional cloud. It is for the Virginia legislature
alone to decide which formulation best matches its state’s
needs.
III.
In sum, a straight forward application of Alvarez’s analysis
and holding compels the invalidation of the challenged provi-
sion of the impersonation statute at issue in this case. Under
the analysis set forth in the plurality and concurring opinions
in Alvarez, the second part of Va. Code § 18.2-174 is not nar-
rowly tailored and, therefore, invalid. Further, even if we
were to engage in the overbreadth analysis that the Alvarez
dissenting opinion suggests is required, I would conclude that
the second clause of the Virginia impersonation statute cap-
tures a substantial amount of legitimate speech and expressive
conduct in addition to properly regulated speech and expres-
sive conduct. I would, therefore, find it overbroad and unen-
36 UNITED STATES v. CHAPPELL
forceable. And because Chappell was expressly convicted
under the infirm clause, his conviction and sentence for the
impersonation charge would need to be vacated. For all these
reasons, I respectfully dissent.