“MORE INFO ON BADGES”
August 3, 2007
Since the issuance of the Attorney General’s Opinion, No. 06-307, and our Client Alert Memo, Vol. 22, No. 10, August 1, 2007, regarding the issuance of badges to non peace officers, we have been inundated with phone calls and e-mails asking for clarification on a variety of issues. We will attempt to provide some additional information regarding the Attorney General’s Opinion and are including a copy of it, following this Client Alert Memo, in case you haven’t seen it in its entirety. It should be remembered that official opinions from the Attorney General are not considered “the law” but are given “great weight” by California courts.
As you read the Opinion of the A.G. you might notice that, unlike many opinions issued by his office, this one contains very little in the way of legal interpretation. It is much more a recitation of the existing law rather than an interpretation of the law. Penal Code section 538d appears to be “clear on its face.” It has been law since 1945 and has been the subject of several A.G. Opinions, which all concluded basically the same thing – a badge which so resembles that used by a sworn peace officer cannot be issued to, or used by, a non peace officer. Although the current AG’s Opinion only addresses the issuance of an “honorary badge to a private citizen” by a sheriff, the language in P.C. 538d(c) applies to others as well.
Misuse of a Badge v. Issuance of a Badge
P.C. 538d (a) and 538d (b)(1) and (2) deal with the misuse of a uniform, emblem, card, badge, etc. of a peace officer, or such items which resemble that of a peace officer, by a person who is not a peace officer, with the intent to “fraudulently” impersonate a peace officer. Such behavior constitutes a misdemeanor and it requires intent on the part of the holder of that item to deceive another into believing he/she is a peace officer.
However, P.C. 538d (c) requires no intent to deceive anyone, on the part of the person who issues the badge, in order to trigger the law violation. All that is required is that “any person” [not just a sheriff] who “sells, loans, gives, or transfers to another [who is not a peace officer], any badge which so resembles the authorized badge of a peace officer Y” is guilty of a misdemeanor. Although this issue will only arise if one is being prosecuted for the act, a defense can, obviously, be raised that the badge is different from a peace officer’s badge and, therefore, not in violation of the law.
The language of the section is clear regarding who is allowed to have such a badge, card, emblem, etc. B and they are peace officers. The section does not include many who work for law enforcement agencies, who are not peace officers but need to be able to identify themselves at a department or a crime scene. Nor does the section include others in the criminal justice system, for example, district attorneys or their deputies. Although the district attorney and his/her deputies are an integral part of the criminal justice system, and the district attorney is the chief law enforcement official of a county, he/she is not a peace officer and, therefore, not eligible to possess a badge as described in P.C. 538d.
Peace Officer Badges Are Not Described
Currently, there is no specific description of what a peace officer’s badge looks like. A single type of shield and/or star could be designed and set forth in the law (as is, for example, the state seal), which would then be used by all law enforcement agencies (with their own city/county name and seal on it) and readily identifiable as a peace officer’s badge. Other badges could then be easily distinguished from the peace officer’s badge.
However, even now, without such a description, when the legislature wanted to add exceptions to 538d, it did so. P.C. 538e acknowledges badges worn by firefighters and state fire marshals. That section also prohibits the use and/or transfer of those badges to persons who do not have the authority of an “officer, or member of a fire department or a deputy state fire marshal.”
Additionally, P.C. 538g speaks to “the authorized badge, photographic identification card or insignia of a county, city officer or employee.” The language recognizes that badges or other forms of identification can be used by officers or employees of cities and counties. That badge, card or insignia, however, could not resemble a badge, card or insignia of a peace officer or it would be in violation of P.C. 538d. But, P.C. 538g allows cities and counties to create badges, cards or insignia to be used by non peace officer employees for purpose of identification.
Reserve Peace Officers
It should be noted that P.C. 536g explicitly refers to officers or employees of cities or counties and that does not appear to include volunteers. However, it should also be remembered that the Penal Code recognizes reserves, who have met all standards established by law to be reserves, as peace officers. Therefore, even Level III reserves could be issued badges and be in compliance with P.C. 538d. Others who provide ancillary support to law enforcement as volunteers, such as members of an air squadron, bloodhound handlers, crime scene investigators, etc., could be issued peace officer badges, if they qualified as reserves.
Retired Peace Officers
One final point was raised by a caller who asked me, specifically, to address it: retired peace officers. They are no longer peace officers after retirement and there is no exception in the law to allow them to receive a retirement badge. In fact, the law only mandates that a retired officer be issued a retired ID card. It is assumed that the issuance of a retirement badge is not required since it would be in conflict with 538d.
In many cases, officers are not issued badges which indicate they are retired – as noted, the law only requires that an ID card must be issued and so endorsed B they just
keep the badge they wore as a peace officer. Unfortunately, since badges are the property of the city or county, allowing one to keep his/her badge would be a gift to that person and still fall within the prohibitions of the statute.
This particular situation, however, would seem to be easily rectified through legislation which would allow for the issuance of a badge marked “Retired” in the same way our current law calls for an ID card to be issued indicating that the holder is a “Retired” peace officer.
HOW THIS EFFECTS YOUR AGENCY
As noted above there are several ways to address the issues raised in the Attorney General’s opinion. Obviously, attempting to modify P.C. 538d is always an option, but there appear to be less onerous ones available. Utilizing badges under the provisions of P.C. 538g, which would be different from peace officer badges; having certain personnel qualify as reserve officers; or utilizing identification nameplates and identification cards (similar to a passport) are other available options.
Obviously, “you don’t have a problem, until you have a problem,” and this problem would not exist until someone challenges the issuance of a badge which might, or might not, violate P.C. 538d. The decision of whether to continue to issue such badges, therefore, can only be made by a police chief or sheriff after consultation with his or her legal counsel.
It is interesting to note, and coincidental in timing, that the current issue of “Western City” magazine (August 2007), published by the League of California Cities, has an article entitled, “Badges for Officeholders and Prominent Members of the Community: A Bad Idea.”
As always, if you wish to discuss this in greater detail (without yelling or screaming at me – I’m only the messenger), feel free to contact me at 714 – 446-1400 or via e-mail at mjm@jones-mayer.com.
Click here for the Attorney General Opinion.