Impersonating an Officer: Where is the Enforcement?

By: Matthew Donovan

In 2017 alone, there were over 150 million visitors to Disney parks worldwide.[1] While a Disney park is largely viewed as a magical place where the grinning Mickey and giggly Minnie reside, any large amusement park with millions of yearly visitors has definite risks and security concerns. On its website, Disney does not “broadly discuss the specifics of our security procedures to avoid compromising their effectiveness.”[2] However, the company does admit that uniformed police officers patrol their parks and resorts in addition to private security guards and cast members. So if local police, private security, and other staff all work together under the guise of park security, how can visitors distinguish the police’s authority apart from the private Disney employees? It is likely that most of Disney’s private security staff are outfitted with both a badge, weapons and a uniform.

The federal standard for impersonating an officer of the United States is essentially a two-prong test. [3]An actor must impersonate an officer of the government, and they must act with such intent to defraud either the United States or any person.[4] The Court has clarified the phrase “intent to defraud” by reasoning that this element “do[es] not require more than that the defendants have, by artifice and deceit, sought to cause the deceived person to follow some course he would not have pursued but for the deceitful conduct.”[5] Hence, all that is required for impersonation is the intent to use apparent authority to get a person to commit an act they would not normally do in their day-to-day activities.

The legitimacy and importance of impersonating an officer was described by the Fourth Circuit, when a surprising First Amendment challenge was brought before the court.[6] Early in 2012, the Supreme Court struck down a portion of the Stolen Valor Act, a federal law criminalizing false statements made about having a military medal.[7] Justice Kennedy, writing for the plurality, classified the statute as overly broad and found that false statements are not, by the sole reason of their falsity, excluded from First Amendment protection.[8]

This opened up a new line of reasoning that defendants in United States v. Chappell relied upon later in 2012 when they contended that Virginia Code 18.2-174, the state’s impersonating an officer statute, violated the First Amendment.[9] The defendant in this case had tried to dodge a traffic ticket by pretending to be a law enforcement officer. The court classified the argument as “ludicrous” and went on to explain that statutes which prohibit impersonating a federal officer are constitutional because they “protect the integrity of government processes” and “maintain the general good repute and dignity of government service itself.”[10] They added that striking down police impersonation statutes “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 benefit.”[11]

In a world where private security nearly mirrors the number of police, this is a valid concern.[12] The court in Lepowitch previously clarified that there was a mens rea element in impersonation statutes; hence, if you are clearly not intending to or just dressing up as an officer, or you have no intention of holding yourself out as a state actor.[13] But we should ask ourselves at what point has this line been crossed from those who clearly intend on holding themselves out as a state actor. Who hasn’t accidentally mistaken a private security guard for a police officer before? What will it take for the courts to draw the line of impersonation more clearly?

 

[1] Annual Disney Park Attendance Statistics and Charts, Disney News (Oct. 30, 2018), https://disneynews.us/disney-parks-attendance/.

[2] Park & Hotel Security Measures, Disney.com, https://disneyland.disney.go.com/guest-services/park-security-measures/.

[3] United States v. Lepowitch, 318 U.S. 702 (1943).

[4] United States v. Lepowitch, 318 U.S. 702, 704 (1943).

[5] United States v. Lepowitch, 318 U.S. 702, 704 (1943).

[6] United States v. Chappell, 691 F.3d 388 (2012).

[7] United States v. Alvarez, 567 U.S. 709 (2012).

[8] United States v. Alvarez, 567 U.S. 709 (2012).

[9] United States v. Chappell, 691 F.3d 388 (2012).

[10] United States v. Chappell, 691 F.3d 388, 398 (2012).

[11] United States v. Chappell, 691 F.3d 388, 399 (2012).

[12] U.S. Contract Security Industry White Paper, Robert H. Perry & Associates, (July, 2017) https://www.roberthperry.com/uploads/2017WhitePaper.pdf.

[13] United States v. Lepowitch, 318 U.S. 702, 704, 63 S. Ct. 914, 87 L. Ed. 1091 (1943) (citing United States v. Barnow, 239 U.S. 74, 80, 36 S. Ct. 19, 60 L. Ed. 155 (1915)).

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