BILL ANALYSIS
AB 2225
Page 1
Date of Hearing: April 29, 2008
Counsel: Nicole J. Hanson
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 2225 (Emmerson) - As Amended: April 24, 2008
SUMMARY : Authorizes district attorneys and city attorneys to
issue official identification to non-peace officer employees who
perform legal, investigative, or prosecutorial services.
Specifically, this bill :
1)Allows district attorneys to issue official identification of
the county's office of the district attorney to non-peace
officer employees of the office who perform legal,
investigative, or prosecutorial services.
2)Defines "official identification of the county's office of the
district attorney" to include, but not be limited to, business
cards, badges, photographic identification cards, or insignias
that clearly indicate the non-peace officer employee's job
title and the county's office of the district attorney.
3)Mandates that official identification of the county's office
of the district attorney shall only be displayed or used in
the course or scope of employment while performing legal,
investigative or prosecutorial job duties.
4)Provides that a city attorney may issue official
identification of the office of the city attorney to a
non-peace officer employee of the office who performs legal,
investigative, or prosecutorial services.
5)Defines "official identification of the office of the city
attorney" to include, but not be limited to, business cards,
badges, photographic identification cards, or insignias that
clearly indicate the non-peace officer employee's job title
and the county's office of the district attorney.
6)Mandates that official identification of the office of the
city attorney shall only be displayed or used in the course or
scope of employment while performing legal, investigative or
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prosecutorial job duties.
EXISTING LAW :
1)Provides that any person other than one who by law is given
the authority of a peace officer, who willfully wears,
exhibits, or uses the authorized uniform, insignia, emblem,
device, label, certificate, card, or writing, of a peace
officer, with the intent of fraudulently impersonating a peace
officer, or of fraudulently inducing the belief that he or she
is a peace officer, is guilty of a misdemeanor. [Penal Code
Section 538d(a).]
2)Affirms that any person, other than the one who by law is
given the authority of a peace officer, who willfully wears,
exhibits, or uses the badge of a peace officer with the intent
of fraudulently impersonating a peace officer, or of
fraudulently inducing the belief that he or she is a peace
officer, is guilty of a misdemeanor punishable by imprisonment
in a county jail not to exceed one year, by a fine not to
exceed $2,000, or by both that imprisonment and fine. [Penal
Code Section 538d(b)(1).]
3)Punishes any person who willfully wears or uses any badge that
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 of a peace officer as would
deceive any 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, for the purpose of fraudulently
impersonating a peace officer, or of fraudulently inducing the
belief that he or she is a peace officer with a misdemeanor
punishable by imprisonment in a county jail not to exceed one
year, by a fine not to exceed $2,000, or by both that
imprisonment and fine. [Penal Code Section 538d(b)(2).]
4)States any person who willfully wears, exhibits, or uses, or
who willfully makes, sells, loans, 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
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is authorized for the use of one who by law is given the
authority of a peace officer, is guilty of a misdemeanor,
except that any person who makes or sells any badge under the
circumstances described in this subdivision is subject to a
fine not to exceed $15,000. [Penal Code Section 538d(c).]
5)Creates a crime for persons who falsely represent himself or
herself to be a deputy or clerk in any state department and
who, in that assumed character, does any of the following is
guilty of a misdemeanor punishable by imprisonment in a county
jail not exceeding six months, by a fine not exceeding $2,500,
or both the fine and imprisonment:
a) Arrests, detains, or threatens to arrest or detain any
person.
b) Otherwise intimidates any person.
c) Searches any person, building, or other property of any
person.
d) Obtains money, property, or other thing of value.
[Penal Code Section 146a(a).]
6)Makes it illegal to falsely represent oneself as a public
officer, investigator, or inspector in any state department
and who, in that assumed character, does any of the following
shall be punished by imprisonment in a county jail not
exceeding one year; by a fine not exceeding $2,500; by both
that fine and imprisonment; or by imprisonment in the state
prison:
a) Arrests, detains, or threatens to arrest or detain any
person.
b) Otherwise intimidates any person.
c) Searches any person, building, or other property of any
person.
d) Obtains money, property, or other thing of value.
[Penal Code Section 146a(b).]
7)Provides that every person who designates any nongovernmental
organization by any name, including, but not limited to, any
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name that incorporates the term "peace officer," "police," or
"law enforcement," that would reasonably be understood to
imply that the organization is composed of law enforcement
personnel, when, in fact, less than 80% of the voting members
of the organization are law enforcement personnel or
firefighters, active or retired, is guilty of a misdemeanor.
Every person who solicits another to become a member of any
organization so named, of which less than 80% of the voting
members are law enforcement personnel or firefighters, or to
make a contribution thereto or subscribe to or advertise in a
publication of the organization, or who sells or gives to
another any badge, pin, membership card, or other article
indicating membership in the organization, knowing that less
than 80% of the voting members are law enforcement personnel
or firefighters, active or retired, is guilty of a
misdemeanor.
As used in this section, "law enforcement personnel" includes
those mentioned in Chapter 4.5 (commencing with Section 830)
of Title 3 of Part 2 of the Penal Code, plus any other
officers in any segment of law enforcement who are employed by
the state or any of its political subdivisions. (Penal Code
Section 146c.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Allowing the
district attorney to issue official identification of the
county's office of the district attorney to non-peace officer
employees will provide them with greater ease and access to
the investigations, information, and further law enforcement
services that they perform."
2)Background : According to information provided by the author,
"Currently, prosecutors representing the elected district
attorney and other non-sworn employees of the district
attorney who perform law enforcements functions do not have an
official form of identification to present when they are in
need of investigating, serving subpoenas, and gaining
information."
3)The Attorney General (AG) Opposes the Distribution of Honorary
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Badges on Legal Grounds : According to The Office of the AG:
"Peace officers are provided badges by their employing agencies
so that they may identify themselves to the public and show
their law enforcement authority. (See Gov. Code, 26690
[sheriff and deputy sheriff]; Pen. Code, 830.10 [uniformed
peace officer]; Veh. Code, 2257 [California Highway Patrol
officer].) We have previously concluded that a person who is
not a peace officer, such as a county public defender's
investigator, 'may not display a peace officer's badge, a
badge which falsely purports to be a peace officer's badge, or
a badge which so resembles a peace officer's badge as would
deceive an ordinary reasonable person into believing that it
is being used by one who by law is given the authority of a
peace officer.' (68 Ops.Cal.Atty.Gen. 11, 15 (1985).) We
have also recognized that a law enforcement official is not
barred from creating 'purely honorary positions, so long as no
official status is sought to be conferred and no official or
official-looking identification is authorized.' (59
Ops.Cal.Atty.Gen. 97, 102 (1976).)
"Here, we are informed that a sheriff has distributed honorary
badges to private citizens. We are asked three questions in
connection with this practice: under what circumstances, if
any, does the practice violate California law, would the
recipients have peace officer status or powers, and would the
sheriff or the county be civilly liable for any subsequent
misuse of an honorary badge by a recipient?
"1. Violation of California Law
"In addressing the first question, we examine the provisions of
two statutes. Subdivision (c) of section 538d provides:
"Any person who willfully wears, exhibits, or uses, or who
willfully makes, sells, loans, 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,
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except that any person who makes or sells any badge under the
circumstances described in this subdivision is subject to a
fine not to exceed $ 15,000.
"Section 146c states in part:
"Every person who designates any nongovernmental organization by
any name, including, but not limited to any name that
incorporates the term 'peace officer,' 'police,' or 'law
enforcement,' that would reasonably be understood to imply
that the organization is composed of law enforcement
personnel, when, in fact, less than 80 percent of the voting
members of the organization are law enforcement personnel or
firefighters, active or retired, is guilty of a misdemeanor.
"Every person who solicits another to become a member of any
organization so named, of which less than 80 percent of the
voting members are law enforcement personnel or firefighters,
or to make a contribution thereto or subscribe to or advertise
in a publication of the organization, or who sells or gives to
another any badge, pin, membership card, or other article
indicating membership in the organization, knowing that less
than 80 percent of the voting members are law enforcement
personnel or firefighters, active or retired, is guilty of a
misdemeanor.
"In our 1985 opinion, 68 Ops.Cal.Atty.Gen. 11, supra, we focused
upon whether a county public defender's investigator, a person
who was not a peace officer, could display a badge in light of
the prohibition of section 538d. While we were not concerned
with the legality of the furnishing of the badge to the
investigator, our prior discussion is helpful here in
examining the scope of a sheriff's authority in giving
honorary badges to private citizens. We stated that section
538d prohibited:
". . . (1) the display of a badge which 'falsely purports to be
authorized for the use of one who by law is given the
authority of a peace officer' or (2) the display of a badge
which 'so resembles the authorized badge' 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.' This paragraph would
forbid a person who is not a peace officer from using a badge
designed or inscribed in such a manner that it 'falsely
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purports' to be the genuine article, e.g., a badge with the
words "Police Officer." This paragraph also would prohibit
the use of a badge which 'resembles' an authorized peace
officer's badge, e.g., a badge shaped or inscribed similarly
to that of the sheriff's department's badge. Under this last
provision the ultimate test is whether an 'ordinary reasonable
person' would be deceived by the use of the similar badge.
" . . . The purpose of the prohibition is to prevent confusion
among members of the general public as to the identity or
authority of a person exhibiting a badge. In 27
Ops.Cal.Atty.Gen. 213, 214 (1956) we concluded that a private
patrolman may wear a badge and cautioned that 'it should be as
distinguishable from those of the authorized peace officers as
is possible so as not to cause confusion.'
"Peace officer badges are usually designed in the shapes of
shields or stars or combinations of both such forms. The
general public associates these designs with police officers,
sheriff's deputies and other law enforcement officers.
" . . . [W]e presume that a sheriff would not provide to a
private citizen an actual deputy sheriff's badge or an
honorary badge that falsely purports to be authorized for
peace officer use. Instead, we address whether an honorary
badge may so resemble a genuine badge that an ordinary
reasonable person would believe it is authorized for use by a
peace officer. The factors we enumerated in our 1985 opinion
are pertinent to that inquiry, i.e., whether the badge is in
the shape of a shield or a star or similar design commonly
associated with peace officer badges and whether the words on
the badge indicate or disclaim official peace officer
identity. Since the prohibition is designed 'to prevent
confusion among members of the general public as to the
identity or authority of a person exhibiting a badge,' we
reaffirm our earlier view that an honorary badge should be 'as
distinguishable as possible' from badges used by peace
officers. (68 Ops.Cal.Atty.Gen., supra, at p. 14; see 27
Ops.Cal.Atty.Gen., supra, at p. 214.) Stated differently, the
more an honorary badge resembles an authorized peace officer
badge in shape, markings, and other indicia that connote
genuineness, the more likely the badge will deceive an
ordinary reasonable person, and the more likely that a person
furnishing or displaying the badge will be found to have
violated section 538d.
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" . . . Given our assumption that a sheriff would not knowingly
provide a genuine badge or one that falsely purports to be
authorized for peace officer use, our focus in this analysis
is upon whether a sheriff may be subject to criminal liability
for providing an honorary badge that is deceptive because of
its resemblance to an official badge. Of course, if the
honorary badge did falsely purport to be authorized, the gift
of such a badge would violate the terms of section 538d.
" . . . Turning next to the requirements of [Penal Code] section
146c, quoted above and as further analyzed in Davis v.
Municipal Court (1966) 243 Cal. App.2d 55, we find that an
honorary badge would come within the scope of this statute if
the badge indicated membership in an organization designated
by any name 'that would reasonably be understood to imply that
the organization was composed of law enforcement personnel,
when, in fact, less than 80 percent of the voting members of
the organization were law enforcement personnel or
firefighters, active or retired.' The statute subjects 'every
person' to criminal liability who sells or gives to another
such a badge, provided the person giving the badge does so
with knowledge that the designated organization is not
composed of the requisite number of law enforcement personnel.
" . . . We thus conclude in answer to the first question that a
sheriff's gift of an honorary badge to a private citizen
violates California law if (1) the badge falsely purports to
be authorized, or would deceive an ordinary reasonable person
into believing that it is authorized, for use by a peace
officer or (2) the badge indicates membership in an
organization whose name would reasonably be understood to
imply that the organization is composed of law enforcement
personnel when, in fact, less than 80 percent of the
organization are law enforcement personnel, active or retired,
and the sheriff has knowledge of such fact.
"2. Peace Officer Status and Powers
"We next consider whether a sheriff's gift of an honorary badge
to a private citizen confers peace officer status on the
recipient or gives him or her the powers of a peace officer.
We conclude that such a gift would not confer such status or
powers.
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"Attaining the status of a "peace officer" depends upon a lawful
appointment to a statutorily designated peace officer
position. (See, e.g., 86 Ops.Cal.Atty.Gen. 112, 113, 117
(2002).) In this regard, [Penal Code] section 830 provides:
"Any person who comes within the provisions of this chapter and
who otherwise meets all standards imposed by law on a peace
officer is a peace officer, and notwithstanding any other
provision of law, no person other than those designated in
this chapter is a peace officer. The restriction of peace
officer functions of any public officer or employee shall not
affect his or her status for purposes of retirement.
"'This chapter' ([Penal Code] 830-832.9) includes specific
references to various full-time and reserve law enforcement
officers, but a private citizen's possession of an honorary
badge does not make the person a holder of any of those
enumerated positions.
"Section 830 also specifies that a person appointed as a peace
officer, whatever the particular classification, must meet all
applicable 'standards imposed by law.' For example, Government
Code section 1031 requires peace officer candidates to meet
certain 'minimum standards,' including the possession of 'good
moral character as determined by a thorough background
investigation' before attaining peace officer status. (See
County of Riverside v. Superior Court (2002) 27 Cal.4th 793,
806 ['If the minimum standards are to have any real meaning, a
candidate has to meet the standards prior to becoming a peace
officer'].) The mere receipt of an honorary badge would not
satisfy such legal standards.
"Nor would an individual possessing an honorary badge have the
authority to exercise peace officer powers, such as the powers
to arrest, serve a search warrant, or carry a concealed
weapon. As we have previously observed, the proper exercise
of such powers depends upon, among other things, whether the
officer has satisfied applicable training requirements. (See
86 Ops.Cal.Atty.Gen. 112, 113-115 (2003); 85 Ops.Cal.Atty.Gen.
203, 207 (2002); 80 Ops.Cal.Atty.Gen. 293, 294-295 (1997); see
also 51 Ops.Cal.Atty.Gen. 110, 112 (1968).) Significantly,
[Penal Code] section 832 provides in relevant part:
"(a) Every person described in this chapter as a peace officer
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shall satisfactorily complete an introductory course of
training prescribed by the Commission on Peace Officer
Standards and Training. On or after July 1, 1989,
satisfactory completion of the course shall be demonstrated by
passage of an appropriate examination developed or approved by
the commission. Training in the carrying and use of firearms
shall not be required of any peace officer whose employing
agency prohibits the use of firearms.
"(b)(1) Every peace officer described in this chapter, prior to
the exercise of the powers of a peace officer, shall have
satisfactorily completed the course of training described in
subdivision (a).
"(2) Every peace officer described in Section 13510 or in
subdivision (a) of Section 830.2 may satisfactorily complete
the training required by this section as part of the training
prescribed pursuant to [Penal Code] Section 13510.
"(c) Persons described in this chapter as peace officers who
have not satisfactorily completed the course described in
subdivision (a), as specified in subdivision (b), shall not
have the powers of a peace officer until they satisfactorily
complete the course.
"The receipt of an honorary badge would not constitute
compliance with these specified training prerequisites for
exercising peace officer powers.
"We thus conclude in answer to the second question that a
sheriff's gift of an honorary badge to a private citizen does
not confer peace officer status on the recipient or give him
or her the powers of a peace officer.
"3. Civil Liability
"As discussed above, we presume for purposes of this opinion
that a sheriff who provides an honorary badge to a private
citizen would not intend for it to be used in an unlawful
manner, i.e., to impersonate a peace officer, and likewise
would not intend that it be displayed in a manner that results
in injury to another person. The final question to be
resolved is whether a sheriff or the county, as the employing
agency, would be subject to civil liability for an injury
resulting from a private citizen's subsequent misuse of an
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honorary badge that is unlawfully deceptive within the meaning
of section 538d or section 146c. . . . We conclude that the
sheriff would be subject to civil liability for an injury
suffered in connection with a recipient's subsequent misuse of
the badge if the injury is proximately caused by the sheriff's
own negligent or wrongful act in providing the badge; the
county's civil liability would depend upon whether the
sheriff's negligent or wrongful act occurred within the scope
of his or her employment.
"The tort liability of public officials, such as a sheriff, and
the agencies that employ them, such as a county, is governed
by the California Tort Claims Act (Gov. Code, 810-998.3;
'Act'), which 'confine[s] potential governmental liability to
rigidly delineated circumstances.' (Zelig v. County of Los
Angeles (2002) 27 Cal.4th 1112, 1127-1128, quoting Brown v.
Poway Unified School Dist. (1993) 4 Cal.4th 820, 829.) Except
as otherwise provided by statute, a public employee is liable
for injuries caused by his or her acts or omissions to the
same extent as a private person. (Gov. Code, 820, subd.
(a).)
"[In addition thereto, a] 'public entity is liable for injury
proximately caused by an act or omission of an employee . . .
within the scope of his employment if the act or omission
would, apart from this section, have given rise to a cause of
action against that
employee . . . . ' (Gov. Code, 815.2, subd. (a); see Lisa M.
v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291,
296; Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710,
717; Ross v. San Francisco Bay Area Rapid Transit Dist. (2007)
146 Cal.App.4th 1507, 1514; Hoblitzell v. City of Ione (2003)
110 Cal.App.4th 675, 680-681; 59 Ops.Cal.Atty.Gen., supra, at
pp. 103-104.) Thus, if the sheriff's negligence were shown,
the determination of the county's liability would depend upon
whether, in the particular circumstances, the sheriff had
acted within the scope of his or her employment in giving the
honorary badge to the private citizen. An employee's act or
omission is 'within the scope of his employment' if it is
'typical of or broadly incidental to' or 'a generally
foreseeable consequence of' the public entity's work or
enterprise. (Lisa M. v. Henry Mayo Newhall Memorial Hospital,
supra, 12 Cal.4th at pp. 297-301; Farmers Ins. Group v. County
of Santa Clara (1995) 11 Cal.4th 992, 1003-1007; Hoblitzell v.
City of Ione, supra, 110 Cal.App.4th at pp. 681-686.)
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"We thus conclude in answer to the third question that if a
sheriff's gift of an honorary badge to a private citizen
violates California law, the sheriff would be subject to civil
liability for an injury resulting from the recipient's
subsequent misuse of the badge if the injury was proximately
caused by the sheriff's own negligent or wrongful act in
providing the badge; the county would be subject to civil
liability if the sheriff's negligent or wrongful act occurred
within the scope of his or her employment." (90 Cal. Op.
Atty. Gen. 57 (2007).)
This bill allows the district attorney to issue official
identification to a non-peace officer employee if that
employee performs legal, investigative or prosecutorial
services. Identification may include the form of a badge. As
the AG's opinion indicates, there are problems with this.
First, issuing official identification to a non-peace officer
employee is a violation of California law. Under existing
law, a person may not display a peace officer's badge that
would deceive an ordinary reasonable person into believing
that the badge is being used by one who, by law, is given the
authority of a peace officer. Badges given to employees of
the county's office of the district attorney resemble an
authorized peace officer's badge. These badges are similarly
fashioned to resemble peace officers' badges and would likely
deceive an ordinary reasonable person into believing that
these employees have the authority of peace officers. It may
be of no consequence that some badges distributed by a
district attorney's office are inscribed with "Deputy District
Attorney" upon the face of a shield or star badge. This, of
course, would be a question of fact depending upon the
opportunity or ability of the ordinary person to see or read
the badge and to comprehend its function. Oftentimes, badges
are "flashed", i.e., briefly exhibited, and persons may react
to badges through "fear or respect." Regardless, the more an
honorary badge bears a resemblance to a peace officer's badge
in shape, markings, and other indicia which suggest
authenticity, the more likely the honorary badge will deceive
an ordinary reasonable person, and the likelihood that the
person exhibiting the badge will be in violation of the law.
Second, conferring a badge upon an employee of the district
attorney avails the office to civil liability for an injury
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suffered in connection with a recipient's misuse of an
honorary badge if the injury is proximately caused by an act
or an omission of an employee within the scope of his or her
employment. Thus, distributing honorary badges to non-peace
officers is illegal and may avail counties to civil liability.
4)Laudable Alternatives to Badges : Under current law, where
persons are granted the authority of a peace officer, Penal
Code Section 538d is clear: they may be issued badges. Where
such a person does not have the authority of a peace officer,
authorizing him or her to exhibit a badge leading an ordinary
person to believe he or she has such authority and runs
counter to the very purpose of the prohibition against
impersonating a peace officer contained in Penal Code Section
538d, namely, to "prevent confusion among members of the
general public as to the identity or authority of a person
exhibiting a badge." (90 Cal. Op. Atty. Gen. 57, supra, at
p.4, citing 68 Cal. Op. Atty. Gen. 11 at 13-14.)
This bill allows for the distribution of badges to those who
"perform legal, investigative, or prosecutorial services."
What is the purpose of giving a badge to this broad group of
people? This could potentially include all employees within
the district attorneys office. Every person within a district
attorney's office is essentially aiding in the performance of
legal, investigative, or prosecutorial services with the
common goal of achieving successful prosecution. Where does
one draw the line? May paralegals and legal secretaries carry
badges? As the statute is currently written, this creates a
potential for any number of district attorney employees to
obtain honorary badges, even those who are not sworn personnel
and take an oath of service upon their hire. This bill
creates the potential danger for greater misuse and civil
liability by allowing for a greater number of employees to
obtain badges.
In addition thereto, how does a badge enhance the performance of
those executing "legal, investigative, or prosecutorial"
functions? Do these people exhibit badges while engaged in a
law enforcement function and thereby assert, in some fashion,
some type of law enforcement authority? To accomplish this, a
badge would have to appear sufficiently similar to that of a
peace officer to convince the reasonable average person to
believe the badge is genuine and that it confers law
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enforcement authority. As stated, this is precisely what
Penal Code Section 538d prohibits.
Why is a badge necessary at all? Can't an official district
attorney employee identification card perform the same
function and be legal? An identification card may, in fact,
be more advantageous since it could also include a photograph
of the holder.
At present, there are hundreds of deputy district attorneys and
attorney generals who possess honorary badges which falsely
portray them as peace officers.
In fact, ". . . The attorney general's deputies are in the
process of turning the badges in throughout the state," said
Gareth Lacy, a spokesman for Attorney General Jerry Brown.
"Badges are being collected from deputy attorneys in the
Sacramento, Oakland, San Francisco, Fresno, Los Angeles and
San Diego offices.
"New badges are being prepared that clearly say 'Not a peace
officer' on their face.
"'It's up to the individual attorneys whether they want a new
one, whether they want (another) credential, or nothing,' Lacy
said. 'They don't have to have anything.' [Geissinger,
Honorary Police Badges Running Afoul With the Law, Oakland
Tribune (Aug. 31, 2007).]
" . . . Deputy Attorney General Gina Papan has a badge from the
Attorney General's Office that she will likely have to return.
" . . . 'I don't believe that the recall of badges would in any
way affect our ability to do our jobs,' she said.
"She added that deputy attorneys have other credentials that are
sufficient to allow them to do their work." (Ibid.)
This bill does not require a recall or corrective action upon
existing district attorney badges which bear too close of a
resemblance to a peace officer badge. Moreover, this bill
requires district attorney badges to indicate the employee's
job title. Badges distributed by the district attorney
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already indicate such information and, under the AG's opinion,
illegal. This does not make the badge "as distinguishable as
possible from badges used by peace officers." (68
Ops.Cal.Atty.Gen., supra, at p. 14; see Ops.Cal.Atty.Gen.,
supra, at p. 214.) To support this notion, Riverside County
prosecutors, as well as non-sworn employees, no longer carry
badges.
" 'All (prosecutors) with existing badges must turn them in,'
Ingrid Wyatt, spokeswoman for the district attorney's office,
said.
"More than 200 attorneys within the office have badges, she
said.
" 'We are in the process of collecting the badges,' Wyatt said.
"The change will not affect the more than 100 district
attorney's investigators, who are sworn peace officers under
California law.
"The decision made by District Attorney Rod Pacheco is twofold,
Wyatt said.
" 'It is first to prevent any confusion to the public,' she
said, 'and also to restore the public trust that may have been
lost through this entire situation.' [Hall, Legal Opinion
Leads to Change in Policies, The Californian (August 6,
2007).]
To avoid any confusion, if badges distributed by the district
attorney, they should clearly state "Not a Peace Officer" on
the face like those issued by the AG. There is no reason why
this should not be standard on all non-peace officer badges.
Refusing to do may indicate that these badges are in fact
being used to effecuate undue influence upon those who view
it.
5)Recent Allegations of Abuse Involving Honorary Badges :
Incidents involving the misuse of badges have gained wide
publicity. In recent years, several people have been
prosecuted for, or admitted to, displaying honorary badges
during traffic stops or other encounters with law enforcement.
"Riverside County Sheriff Bob Doyle and San Bernardino County
District Attorney Mike Ramos issued badges and Los Angeles
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County Sheriff Lee Baca had issued identification cards to
dozens of political supporters, creating an impression that
they were legally empowered." [Pfeifer, Brown curbs badges
given to public; The attorney general says sheriffs, police
chiefs may be breaking the law if honorary shields can be
easily mistaken for official ID. Los Angeles Times (Aug 1,
2007) B.1.]
"Two of Doyle's political contributors told The Times that they
displayed their honorary badges during encounters with law
enforcement. One used it to gain access to a secure area of
the Bob Hope Airport in Burbank, the other showed it to police
officers serving a search warrant at his business.
" . . . Doyle scheduled a meeting today to discuss the opinion
with his senior assistants. He issued the badges in 2005 to
members of his Sheriff's Executive Council, many of them Los
Angeles County businessmen who had contributed to his
political campaign. He said the badges were so different from
those issued to his deputies that they did not violate the
law, but he ordered members to return them.
" . . . Ramos, who issued badges to political supporters who
formed the San Bernardino district attorney's Bureau of
Justice, said he recalled the badges in 2003 and hasn't issued
any since then.
"'Although the [AG's] opinion specifically involves an honorary
badge from a sheriff, we believe that it should also be
applied to district attorneys,' Ramos said. 'The principles
set forth here are ones that this office has followed since my
review and change of policy in 2003, when I discontinued the
use of honorary badges.'
"Baca gave sheriff's identification cards to members of his
now-defunct Homeland Security Support Unit, many of them
contributors to his political campaign. A spokesman said the
unit has been suspended and that most members had returned the
cards.
"Even though state law makes it a crime to issue badges as well
as identification cards that could deceive the public, the
attorney general's opinion focused narrowly on badges because
the Riverside district attorney asked only for a review of
Doyle's conduct.
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"'This opinion appears to be dealing with badges, and we've
never issued any badges except to dutifully sworn deputy
sheriffs,' Baca spokesman Steve Whitmore said.
"'However, there may or may not be implications that apply to
identification cards and we're certainly going to look at
that,' Whitmore said.
"Former San Francisco Police Chief Anthony Ribera, now a
professor at the University of San Francisco, said police
administrators need to be cautious about distributing badges
and other identification to the public.
" 'Even if they are wonderful people, the potential for abuse
far outweighs the community outreach aspect,' he said. 'You
get so many badges out there and you lose control. The next
thing you know, the so-called commissioner's kid has got a
badge.' " (Id.)
Badges are the supreme symbol of authority. The power they
wield is the reason they are bestowed upon peace officers and
only after they prove their worthiness to carry one. Should a
more cautious route be taken in the distribution of such items
so as to protect ordinary, reasonable citizens?
6)Argument in Support : According to the District Attorney,
County of San Bernardino , "As the elected District Attorney of
an organization of more than 200 prosecutors and other
non-peace officer employees performing essential public safety
functions, it is important for me to have this matter
clarified in the law. These employees are routinely in
contact with victims of or witnesses to crimes, persons under
investigation for, charged with, or convicted of committing
crimes, and state and local government and law enforcement
agencies in the course of their law enforcement duties.
Official identification badges for these individuals are
necessary so that they may easily identify themselves to
parties with whom they come into contact.
"Support of this bill will put an end to questions relative to
an elected District Attorney's authorization to issue
identification badges to his/her employees."
7)Related Legislation : SB 1212 (Cox) would authorize the head of
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a local agency that employs peace officers to issue
identification in the form of a badge, insignia, emblem,
device, label, certificate, card, or writing that clearly
states the person's position as an honorably retired peace
officer, a non-peace officer employee, or a volunteer for that
agency, as specified. SB 1212 failed passage on the Senate
floor.
REGISTERED SUPPORT / OPPOSITION :
Support
District Attorney, Inyo County
District Attorney, Kern County
District Attorney, Orange County
District Attorney, Sacramento County
District Attorney, San Bernardino County
District Attorney, San Francisco City and County
District Attorney, Santa Barbara County
District Attorney, Yuba County
Opposition
None
Analysis Prepared by : Nicole J. Hanson / PUB. S. / (916)
319-3744