A federal appeals court has rejected the arguments of an imprisoned Air Force veteran who challenged the constitutionality of a law that prohibits the unauthorized wearing of military medals.
"We have no trouble concluding that wearing a military medal with an intent to deceive is engaging in legitimately criminal conduct," the 9th U.S. Circuit Court of Appeals ruled this week.
David M. Perelman, now 58, was sentenced in December to one year in prison after pleading guilty to theft of government funds, a felony, and unlawful wearing of a service medal, a misdemeanor. Perelman fraudulently obtained a Purple Heart, wore it in public, and used it to obtain more than $180,000 in disability benefits.
The case against Perelman is the first known prosecution in Nevada under the Stolen Valor Act of 2005, which outlawed false claims of military honor. Even while admitting his guilt, the defendant reserved the right to appeal the constitutionality of the law that led to his misdemeanor conviction.
Before pleading guilty, Perelman had argued that he was charged under a portion of the Stolen Valor Act that violates the First Amendment by restricting free speech. U.S. District Judge Kent Dawson rejected that argument, and the appeals court affirmed his decision.
A three-judge panel of the San Francisco-based court heard arguments in July before issuing the unanimous opinion, which was authored by Judge Susan Graber. Critics of the law said they plan to ask for an "en banc" rehearing. If the request is granted, an 11-member panel of the court would review the case.
"We respect the decision of the panel," said Assistant Federal Public Defender Alina Shell, who represents Perelman. "However, we strongly disagree with the decision because we believe it is contrary to the principles of the First Amendment, and we intend to pursue this case as far as we need to to vindicate the First Amendment rights, not just of our client but of anyone who wants to wear a medal to engage in protected speech."
Daniel Bogden, the U.S. attorney for Nevada, could not be reached for comment on the decision.
The Stolen Valor Act contains two parts. Perelman was charged under a section that makes it a crime for any unauthorized person to wear a service medal. Another section outlaws false claims, "verbally or in writing," about receipt of military medals.
Last year, the 9th U.S. Circuit Court of Appeals declared the second section unconstitutional in United States v. Alvarez.
In Perelman's case, his lawyers mounted a "facial challenge," meaning they challenged the statute as it applies to everyone, rather than how it was applied specifically to Perelman.
"We believe that wearing a medal without authorization is not a crime and that criminalizing it is contrary to the First Amendment," Shell said.
She argued the statute makes it a crime for anyone other than the valid recipient to wear a military medal, regardless of context or circumstances. That would include actors wearing medals in a film or grieving spouses who wear military medals at funerals, the lawyer argued.
But the appellate court disagreed with that "expansive reading of the statute."
"In our view, Congress intended to criminalize the unauthorized wearing of medals only when the wearer intends to deceive," Graber wrote.
"For the life of me, I can't understand what they mean by that," said Allen Lichtenstein, general counsel for the American Civil Liberties Union of Nevada.
Lichtenstein sided with Perelman as a "friend of the court" and said the panel's ruling on Perelman "seems inconsistent" with its decision in the Alvarez case.
The lawyer said people typically make their intent known with spoken or written words, and the Alvarez decision prevents authorities from prosecuting people who engage in that type of speech.
Lichtenstein described the Perelman decision as "unclear in terms of under what conditions and situations someone would be violating the law."
"The court gave no indication whether it felt that somebody wearing a military medal needed to do or say something else in order to manifest an intent to deceive or whether that would be just assumed without a disclaimer," he said. "Moreover, the 9th Circuit in Alvarez ruled that expression of falsity in and of itself still maintains constitutional protection, unless something else like a specific harm is also shown."
Perelman was a Veterans Affairs employee when a federal grand jury indicted him in October 2009.
According to court records, Perelman enlisted in the Air Force at 18 and spent a few months in Vietnam before receiving an administrative discharge.
He accidentally shot himself in the right thigh in 1991 and later claimed he had been wounded in Vietnam.
Based on fraudulent documents submitted by Perelman, the Air Force awarded him various medals, including a Purple Heart, in 1994. The following year, Perelman applied for Veterans Administration disability benefits.
Contact reporter Carri Geer Thevenot at firstname.lastname@example.org or 702-384-8710.