“ISSUING HONORARY BADGES”
August 1, 2007
On July 30, 2007, the Office of the Attorney General issued an official opinion (No. 06-307) addressing three questions regarding the issuance of honorary badges. Although the questions posed focused on the actions of a sheriff, the analysis would be applicable to anyone authorized to issue a badge (for example, a police chief). The three questions focus on whether the issuance of an honorary badge to a private citizen would be in violation of California law; whether the issuance of the honorary badge confers peace officer status on the recipient; and whether misuse of that badge by the private citizen creates civil liability for the sheriff or the county?
Approximately one year ago, when the Office of the Attorney General was undertaking review of this issue, the firm of Jones & Mayer, as General Counsel to the California State Sheriffs Association, was asked by the Office of the Attorney General to provide input before a formal opinion was completed and published. In response to that request, on June 14, 2006, we did submit a legal opinion which we are attaching to this Client Alert Memo.
A comparison of our opinion and the official opinion just published will indicate complete agreement on two of the issues and partial agreement as to the third.
Issuance of a Badge
Penal Code § 538d(c) states that “any person who willfully…gives, or transfers to another, any badge, insignia, emblem, device, or any label, certificate, card, or writing, which falsely purports to be authorized for the use of one who by law is given the authority of a peace officer, or which so resembles the authorized badge, insignia, emblem, device, label, certificate, card, or writing of a peace officer as would deceive an ordinary reasonable person into believing that it is authorized for the use of one who by law is given the authority of a peace officer, is guilty of a misdemeanor….”
In summary, the statute states that if the badge so resembles a peace officer’s badge as to deceive an ordinary reasonable person into believing the holder of the badge is a peace officer, then the issuance of that badge is in violation of Section 538d.
Both our opinion from June 2006, and the Attorney General’s opinion just issued, explain in greater detail how and under what circumstances the law would be violated. It is important to note, however, that the mere issuance of the badge could constitute a violation, regardless of whether the recipient misuses the badge. Misuse of the badge by the recipient constitutes a completely separate and distinguishable offense.
Peace Officer Status
There is absolutely no difference of opinion between the position set forth in the CSSA legal opinion to the Attorney General and that rendered by the Office of the Attorney General regarding this issue. One attains peace officer status, and has the power of a peace officer, only if he or she complies with the specific standards imposed by law. Even, for example, if one were issued a badge that stated on it “police officer” or “deputy sheriff” the mere possession of that badge in no way confers peace officer status or authority upon the holder of the badge.
Civil Liability
In the opinion submitted by this office on behalf of CSSA, we indicated that it was “possible” for civil liability to arise out of the issuance of an honorary badge if the badge was in violation of the Penal Code. We addressed the issue of “negligent entrustment” as a possible way for liability to arise if a prohibited badge were issued to a private person and, thereafter, misused.
The Attorney General’s Opinion holds more forcefully that liability would arise from the issuance of a prohibited badge. Addressing the public employee’s immunity from civil liability for discretionary acts, the Attorney General concludes that a sheriff would not have discretion to provide a badge in violation of California law. It is only in this area where we would respectfully disagree with the conclusion of the Attorney General and, even here, only as to semantics and interpretation.
The issuance of the badge is unquestionably a discretionary (as opposed to mandatory) act. However, it is certainly subject to debate as to whether or not a particular badge would so resemble a peace officer’s badge as to deceive a reasonable person. Under those circumstances, a sheriff might not be in violation of the law and would be protected under the “discretionary act” provision.
The Attorney General does go on to discuss the fact that the injured party would need to establish the sheriff’s negligence and show that any wrongful action was proximately caused by the issuance of the badge. With that we totally concur. However, we believe that the immunity from liability for discretionary acts could be applicable, depending on facts and circumstances surrounding the type of badge issued and whether or not a reasonable person would be deceived.
HOW THIS EFFECTS YOUR AGENCY
There are two primary issues of concern regarding non-peace officers being issued badges. The first, which has been the focus of both our opinion and the official opinion of the Attorney General, addresses the mere issuance of a badge which would violate the Penal Code by it’s appearance. As you will note the concluding paragraph in the CSSA legal opinion states, “it is worth noting…that violation of section 538d and 538e does not require resulting damages. The mere giving of a badge that so resembles a peace officer’s badge as to fool a reasonable person constitutes a violation….”
The second aspect, arising out of the issuance of such badges, is whether or not it is misused by its holder. The recipient of the badge violates the law only if and when he or she misuses it and attempts to represent him/herself as a peace officer. See 538d(b)(2).
Even if the recipient does not inappropriately use the badge, the individual who has issued or given that badge would still be in violation of the law, if it so resembled a real peace officer’s badge as to “deceive an ordinary reasonable person into believing that it is authorized for the use of one who by law is given the authority of a peace officer….”
Issuance of badges to private persons, which include members of city councils, boards of supervisors, advisory committees, volunteer groups, etc., in light of the opinion of the Attorney General, is fraught with danger and potential civil and/or criminal liability.
As always it is imperative that you confer with your agency’s designated attorney for legal advice and guidance in matters of this nature. If you wish to discuss this particular matter in greater detail, please feel free to contact me at 714-446-1400 or by an e-mail at mjm@jones-mayer.com.
June 14, 2006
Richard D. Jones*
Martin J. Mayer
Kimberly Hall Barlow
Of Counsel
Christian L. Bettenhausen
Michael R. Capizzi
Paul R. Coble
Michael Q. Do
Thomas P. Duarte
Consultant
Elizabeth R. Feffer
Mervin D. Feinstein
Krista MacNevin Jee
Christina J. Johnson
Elena Q. Gerli
Gregory P. Palmer
Danny L. Peelman
Harold W. Potter
Dean J. Pucci
Yolanda M. Summerhill
Ivy M. Tsai
*a Professional Law Corporation
Marc Nolan
Deputy Attorney General
State of California
300 S. Spring Street
Los Angeles , CA 90013
RE: Opinion No. 06-307 – Input on Behalf of CSSA
Dear Mr. Nolan:
On behalf of the California State Sheriffs Association, we appreciate the opportunity to provide input in response to the query posed by Riverside County District Attorney Grover Trask as set forth below:
1. Does the gift of an honorary badge, which may be similar to that used by law enforcement personnel, violate section 538d, 538e, or 146c of the Penal Code?
Possibly . If the badge that was given so resembled a peace officer’s badge as would deceive an ordinary reasonable person into believing it is authorized for use by a peace officer, then it would be in violation of section 538d and 538e. A specific inscription on the badge indicating that it was for use by a non-peace officer (e.g., “Executive Council”) may not be sufficient to remove the badge from the prohibited category. See 68 Op. Atty. Gen. Cal. 11. Because the perspective taken is that of an ordinary reasonable person (i.e., a lay person, who may only have a short time to view the badge as it is “flashed”), a technical distinction (e.g., “Public Defender’s Investigator” versus “District Attorney’s Investigator”) may fail to eliminate the violative resemblance. It would presumably be helpful if the badge, in addition to any title inscription, included the words “Non-Peace Officer,” or something to that effect to help minimize any opportunity for confusion. Also, prudence would require that the badge not be in the shape of a star or shield in order to distinguish it from commonly used peace officer badges. Id. In that same vein, the badge should not include the seal of local peace officers (e.g., county seal), and it may not contain the California state seal. Id.
A badge could violate section 146c, per the language of that section, if it contained the name of an organization incorporating a term that would reasonably be understood to imply that the organization is composed of law enforcement officers when it is not. For example, a badge bearing the name of a sheriff’s booster and fundraising group called “Sheriff’s Special Council” could be violative of this provision since a person may reasonably understand that to mean that the bearer of the badge represents a law enforcement organization.
In short, the badge should be as dissimilar to a peace officer’s badge as possible (with respect to shape, logo, inscription and other characteristics) in order to avoid the potential for confusion and subsequent liability.
2. Does the fact that the agency or official issuing the honorary badge does not possess the intent to defraud or deceive affect whether or not criminal liability exists?
No . The only intent which is required to constitute a violation of section 538d and 538e is the intent to give the badge (i.e., the giver “willfully” gave the badge to the user, rather than it having been found or inadvertently obtained). For example, a public defender who willfully gives badges to “Public Defender’s Investigators” for identification purposes could violate the statute, even with no intent by the public defender to deceive or defraud the public. See 68 Op. Atty. Gen. Cal. 11.
3. Does the word “falsely” as used in Penal Code section 538d, subdivision (c), impose a requirement that the person giving or transferring the badge must intend that the badge be used in a manner similar to how a peace officer would use the badge?
No . If a person gives an actual peace officer’s badge to a non-peace officer, that badge would be “falsely purporting” to be authorized, regardless of how the badge-holder used it or how the giver intended it to be used. Due to the disjunctive nature of the language in 538d and 538e, even a badge which does not “falsely purport” to be authorized (i.e., does not say “Peace Officer”) may nonetheless be violative of the sections if it too closely resembles peace officer badges, as discussed above; it need not be “falsely purporting” to be authorized.
4. Is the standard “as would deceive an ordinary reasonable person into believing that it is authorized” as used in Penal Code section 538d so vague as to invoke the rule of lenity?
Probably not . First, a “reasonable person standard” is common in statutes and is unlikely to be considered overly ambiguous or vague because words of a statute need not mean “the same thing to all people, all the time, everywhere” in order to pass muster under constitutional due process. Davis v. Municipal Ct. for the So. Judicial Dist. of San Mateo Cty. , 243 Cal. App. 2d 55, 58 (1966). At the same time, it is a factual inquiry how a “reasonable person” might react to any given badge that was displayed to him or her, so it is indeed unclear how the standard would be applied in a particular case. The same badge might be determined to be violative of section 538d and 538e in one case and non-violative in another case.
Second, the “rule of lenity” is unlikely to apply. The rule of lenity is a doctrine that commands courts to resolve doubts as to the meaning of a statute in a criminal defendant’s favor. People v. Avery , 27 Cal. 4th 49, 57 (2002). However, the rule of lenity is somewhat in conflict with the penal code rule which states that strict construction is inapplicable to the penal code, and that provisions are merely to be construed “according to the fair import of their terms, with a view to effect its objects and to promote justice.” Cal. Penal Code § 4. Courts have reconciled these two rules by applying the rule of lenity only when a statute is “susceptible of two reasonable interpretations” and it is entirely unclear from the statute what the legislature intended. People v. Avery , 27 Cal. 4th at 57-58. In other words, there must be an egregious ambiguity. Id. As discussed above, the “reasonable person” standard likely would not constitute such an egregious ambiguity merely because it can be applied differently in different factual situations. As long as a court can fairly determine what behavior the legislature intended to proscribe, the rule of lenity will be inapplicable.
5. Does the fact that a sheriff gives an honorary or special badge to a private citizen necessarily confer “special duty” status on the person or give the person the powers of a peace officer?
No . The requirements to attain peace officer status and powers are very stringent. For example, peace officers must complete extensive training. Cal. Penal Code § 832. Failure to complete such training will prohibit even an otherwise valid peace officer from engaging in peace officer duties. Cal. Penal Code § 832(c). Certainly, merely having a badge would not confer any of the special powers that a peace officer attains through this training and other requirements. The badge-holder’s duties and powers would be the same as any other person, which would include the duty not to violate section 538d and 538e through misuse of the badge.
6. If so, would this subject either the sheriff or the county to civil liability for any subsequent misuse of the special badge by the person?
Possibly . Even though the answer to the question above is almost unequivocally “no,” it is nonetheless possible that liability could ensue from the disbursement of honorary badges. At the very least, misuse of an honorary badge seems likely to precipitate litigation because of the ambiguity in the standard for violative badges as discussed above. Certainly, there is at least the potential for a plaintiff to claim that a badge was so similar to a peace officer’s badge that it created confusion and led to some damage.
If any liability were to be found by a court, it would more than likely be on the basis of “negligent entrustment” which is a theory of direct negligence not predicated upon an employment relationship. If, for example, a sheriff gave an honorary badge to an advisor who a record-check would show had been convicted of misusing a badge in the past, a court could say that the sheriff negligently entrusted that person with the honorary badge. Absent a substantial and egregious criminal history that would give notice that a person should not be entrusted with a badge, however, it is unlikely that liability would ensue. For example, a court recently held that a city and the city’s chief of police could not have foreseen that an off-duty police officer with a record of misconduct might recklessly or deliberately use his police-issued weapon to shoot a person in a private dispute. Phelan v. City of Mount Rainier , 805 A.2d 930 (D.C. 2002).
It is worth noting, though, that violation of section 538d and 538e does not require resulting damages. The mere giving of a badge that so resembles a peace officer’s badge as to fool a reasonable person constitutes a violation, though it seems unlikely that the technical violation would be prosecuted in the absence of damages of some kind.
Very truly yours,
Martin J. Mayer
MJM/cj