691 F.3d 388 (4th Cir. 2012), 10-4746, United States v. Chappell

Docket Nº:10-4746.
Citation:691 F.3d 388
Opinion Judge:WILKINSON, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Douglas P. CHAPPELL, Defendant-Appellant, v. Commonwealth of Virginia, Intervenor.
Attorney:Caroline Swift Platt, Office of the Federal Public Defender, Alexandria, Virginia, for Appellant. Jamie L. Mickelson, Office of the United States Attorney, Richmond, Virginia, for Appellee. Michael S. Nachmanoff, Federal Public Defender, Brian Mizer, Assistant Federal Public Defender, Office of t...
Judge Panel: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. WYNN, Circuit Judge, dissenting:
Case Date:August 14, 2012
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 388

691 F.3d 388 (4th Cir. 2012)

UNITED STATES of America, Plaintiff-Appellee,

v.

Douglas P. CHAPPELL, Defendant-Appellant,

v.

Commonwealth of Virginia, Intervenor.

No. 10-4746.

United States Court of Appeals, Fourth Circuit.

August 14, 2012

Argued: Jan. 27, 2012.

Page 389

[Copyrighted Material Omitted]

Page 390

ARGUED:

Caroline Swift Platt, Office of the Federal 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, Alexandria, Virginia, for Appellant.

Neil H. MacBride, United States Attorney, Alexandria, Virginia, for Appellee.

Kenneth T. Cuccinelli, II, Attorney General of Virginia, E. Duncan Getchell, Jr., Solicitor General of Virginia, Charles E. James, Jr., Chief Deputy Attorney General, Wesley G. Russell, Jr., Deputy Attorney General, Office of the Attorney General, Richmond, Virginia, for Intervenor.

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.

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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 Washington 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 employed by the Fairfax County Sheriff's Office for approximately one year.

The officer asked Chappell for his law enforcement credentials, 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 impersonating a police officer.

Chappell was charged in the U.S. District Court for the Eastern District of Virginia with impersonating a police officer 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 dismiss 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 probation, 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 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 unconstitutionally overbroad because it bans a substantial amount of protected 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

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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, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008) ( " Facial challenges are disfavored for several reasons." ); Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 580, 118 S.Ct. 2168, 141 L.Ed.2d 500 (1998) (" [F]acial challenges to legislation are generally disfavored [.]" (citation omitted)). Because " [c]laims of facial invalidity 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, 128 S.Ct. 1184 (quoting Sabri v. United States, 541 U.S. 600, 609, 124 S.Ct. 1941, 158 L.Ed.2d 891 (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 applied." ’ Id. at 450-51, 128 S.Ct. 1184 (quoting Ashwander v. TVA, 297 U.S. 288, 346-47, 56 S.Ct. 466, 80 L.Ed. 688 (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, 128 S.Ct. 1184.

Chappell presents us with a particularly inappropriate case for recognizing a challenge of facial invalidity. First, the Virginia impersonation statute has a plainly legitimate sweep. By protecting unsuspecting citizens from those who falsely pretend to be law enforcement officers, the statute serves the Commonwealth's critical interest in public safety. See, e.g., People v. Ellis, 296 Ill.App.3d 862, 231 Ill.Dec. 272, 696 N.E.2d 1, 3 (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 interests. See, e.g., United States v. Jackson, 163 F.3d 599, 1998 WL 609705, at *3 (4th Cir. Sept. 1, 1998); English v. Commonwealth, 43 Va.App. 370, 598 S.E.2d 322, 324 (2004); People v. Reyes, 328 Ill.App.3d 918, 263 Ill.Dec. 614, 768 N.E.2d 374, 384 (2002).

Second, Chappell is right at the core of the Virginia impersonation statute's plainly legitimate sweep. After falsely informing the Park Police Officer that he was a Deputy Sheriff, 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 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

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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 officials." 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 costumed 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...

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