The Volokh Conspiracy
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In Commonwealth v. Crawford, decided last week by the Pennsylvania intermediate appellate court (in an opinion by Judge Pellegrini, joined by Judges Murray and McLaughlin),
Christopher Michael Crawford … enlisted with the United States Army in 2007. Within three months of his enlistment, Crawford had gone AWOL from boot camp and was classified as a deserter without having completed his training.
Crawford surrendered himself to military authorities on November 9, 2007, and was discharged on other than honorable conditions at that time. According to the discharge papers that Crawford signed, the lack of an honorable discharge meant that he could be deprived of "rights and benefits as a veteran under both federal and state law." The testimony of the Director of Veterans Affairs in Lackawanna County (David Eisele) established that these discharge conditions would relegate Crawford to the status of a civilian who would not be entitled to join any American Legion posts….
Nonetheless, Crawford joined an American Legion post, apparently telling them "that he was a veteran of the Iraq War and that he had received a Purple Heart for sustaining a brain injury from an explosive device. Crawford also regularly wore a cap affixed with badges and pins which are only conferred upon military veterans for exploits that Crawford had never achieved. These unearned decorations included a Combat Infantryman Badge and a 10th Mountain Division pin."
He later became a post finance officer, and ended up using his position "to make purchases and withdrawals [using the post's debit cards] totaling over $17,000 for purposes that did not at all relate to the Post. For example, some of the charges on the debit cards included payments for bars, hotels, restaurants, casinos and flights to Florida." As a result, he was prosecuted based in part on a Pennsylvania statute, 18 Pa. Cons. Stats. § 6701(b), which provides,
A person commits a misdemeanor of the third degree if, with intent to obtain money, property or other benefit, the person fraudulently holds himself out to be any of the following:
(1) A member or veteran of any branch of the armed forces of the United States or of any of the several states.
(2) The recipient of any decoration or medal authorized by the Congress of the United States for the armed forces of the United States or any of the service medals or any decoration awarded to members of the armed forces of the United States or of any of the several states.
The court concluded that the statute clearly applied to Crawford:
Because it does not define who qualifies as a "veteran," Crawford contends that 18 Pa.C.S. § 6701(b)(1) is void for vagueness, thereby depriving him of notice as to the nature of the prohibited conduct. Even though he went AWOL from boot camp without having completed his training, he was classified as a deserter, and he received less than an honorable discharge depriving him of the "rights and benefits as a veteran under both federal and state law," Crawford argues that he could have reasonably believed that he was a veteran. Since this claim concerns how the statute applies to Crawford's unique circumstances, his constitutional challenge is of the as applied variety.
"When words are not defined in a statute, the Pennsylvania Statutory Construction Law instructs that terms should be construed in accordance with their common or approved usage." "Veteran" is defined as "someone who has been honorably discharged from military service." Black's Law Dictionary (11th ed. 2019). "Honorable discharge" is defined as "a formal final judgment passed by the government on a soldier's entire military record, and an authoritative declaration that he or she has left the service in a status of honor." Id.
Consistent with the above definitions, the Department of Veterans Affairs defines "veteran" as "a person who served in the active military, naval, or air force, and who was discharged or released therefrom under conditions other than dishonorable."
A "veteran" refers to someone who has actively and honorably served in the military. This definition would exclude those who have been discharged prior to finishing boot camp, and certainly those who have received something other than an honorable discharge after going AWOL before that initial training has been completed—such persons have not yet undertaken any active military service.
As applied to him in the context of the circumstances of this case, the definition of "veteran" in Section 6701(b)(1) was sufficiently clear enough to convey the prohibited conduct. It is not so vague as to result in arbitrary and discriminatory enforcement. Persons of ordinary intelligence would not have to guess at the statute's meaning. No reasonable person would have thought that a veteran could refer to a trainee who deserted before recording a single day of active service and who received less than an honorable discharge.
There is, in fact, every indication from Crawford's own conduct that he knew his real background fell short of qualifying him as a veteran; otherwise he would not have lied about it. Accordingly, the statute's use of the term comported with due process requirements, and the trial court did not err in finding it constitutionally valid….
And the court rejected Crawford's claim that § 6701(b)(2) is unconstitutional under U.S. v. Alvarez (2012), which struck down the federal Stolen Valor Act's prohibition on false claims of military medals:
Like the Federal Stolen Valor Act, Section 6701(b)(2) criminalizes false claims about being awarded military medals or decorations. Crucially, though, the Pennsylvania statute contains exactly what was missing in its invalid federal counterpart—a requirement that the misrepresentation be done with intent to profit from the falsehood.
The Commonwealth argues in this appeal and we agree that this additional intent element puts Section 6701(b)(2) in compliance with the First Amendment. As emphasized in Alvarez, the Federal Stolen Valor Act was unconstitutional precisely because it criminalized speech without requiring a showing of proof that it caused or was intended to cause harm. By implication, and as stated explicitly in Alvarez, the Federal Stolen Valor Act would be constitutional if, like Section 6701(b)(2), the crime included the intended effect of the speech and not just the speech itself.
Moreover, the First Amendment has long "permitted restrictions upon the content of speech in a few limited areas," such as obscenity, defamation, fraud, incitement and speech integral to criminal conduct….. Section 6701(b)(2) criminalizes speech and impersonation done with the intent to obtain some benefit. The prohibited conduct is a form of fraud, which has historically been unprotected speech under the First Amendment.