ATTORNEY GENERAL OPINION: 06-307, (June 14, 2006)

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