HomeMy WebLinkAboutCC AG PKT 2008-12-08 #BAGENDA STAFF REPORT
DATE: December 8, 2008
TO: Honorable Mayor and City Council
THRU: David Carmany, City Manager
FROM: Jeff Kirkpatrick, Chief of Police
SUBJECT: HONORARY BADGES
SUMMARY OF REQUEST:
The City Council is asked to receive and file this informational report regarding
honorary badges for City Councilmembers.
BACKGROUND:
At the November 10th meeting, Council Member Miller asked that this topic be
agendized and discussed by Council. He requested that Council members be
issued a badge to be used in the event of an emergency.
On July 30, 2007, California Attorney General Jerry Brown issued Opinion (No.
06-307). He concluded that (1) the award of an honorary (facsimile) badge to a
private citizen violates California law if 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.'
A (Chief's) gift of an honorary badge to a private citizen does not confer peace
officer status on the recipient or give him or her powers of a peace officer."
Lastly, if a (Chief's) gift of an honorary badge to a private citizen violates
California law, the (Chief) would be subject to civil liability for an injury resulting
from the recipients' subsequent misuse of the badge if the injury was proximately
caused by the (Chief's) own negligent or wrongful act in providing the badge; the
(City) would be subject to civil liability if the (Chief's) negligent or wrongful act
occurred within the scope of his or her employment."'
Separately and with respect to the Attorney-Client Privilege, the City Attorney has
provided to the Council a memo addressing this issue.
Agenda Item B
Page 2
Penal Code §538d 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 the
section.
General Counsel to the California State Sheriff's Association, Mr. Martin J.
Mayer, Esq., like the Attorney General, is of the opinion that civil liability may
likely arise out of the issuance of an honorary badge if the badge was in violation
of the Penal Code. The AG's Opinion holds more forcefully that liability would
arise from the mere issuance of a prohibited badge.'"
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." Because the perspective taken is that of an ordinary
reasonable person (i.e., a layperson, who may only have a short time to view the
badge as it is "flashed"), a technical distinction may fail to eliminate the violative
resemblance."'
One need only peruse the pages of any public safety, badge supply catalog and
observe the myriad styles and variety of badges worn by public safety officials
(both law and fire) to determine there is no standard style of badge, honorary or
otherwise. The variety is so great that the ordinary reasonable person would
easily fail to eliminate the violative resemblance.
Even with no specific intent to defraud or deceive, the official issuing the
honorary badge cannot escape criminal or civil liability. Similarly, the word
"falsely" as used in Penal Code §538d(c) may be violative of the sections if it too
closely resembles peace officer badges.
Although it is unclear how many jurisdictions issue facsimile badges, it is
undoubtedly true that the vast majority of local officials would never engage in
conduct that came anywhere near the criminal prohibitions regarding misuse of
facsimile badges. Despite the good intentions of most officials, however, there
have been some reported unfortunate experiences with facsimile badges.
For example, citing aworst-case scenario, a Southern California city council
member was prosecuted for unlawfully using a badge and false imprisonment in
2003. The allegation was that the elected official got into a dispute with a
customer at his business and flashed a facsimile badge saying, "I am the police
around here. You are under arrest." The jury deadlocked 11 to 1 in favor of
conviction, a narrow escape. Prosecutors persisted and, according to
newspaper accounts, the official ultimately pleaded no contest to impersonating a
police officer and disturbing the peace as part of a plea bargain. The city also
refused to pay the costs of the official's defense."",""'
This suggests that something for officials to ponder in considering the advisability
of facsimile badges is that even if they themselves would never misuse the
badge, it is possible that their colleagues or future officials might. The issue
becomes one of responsibility - a core ethical value. As decision-makers,
Page 3
officials have a responsibility to consider not only their own situations and
inclinations, but everyone else's as well. The actions of those who may have a
lapse in judgment can ruin it for the rest of local officials, and decision-makers
have a responsibility to realistically consider that likelihood."`
Most agencies will issue their elected officials either business cards or some
other form of identification that may be useful from time to time. Some agencies
issue officials "badges" that look similar to those used by law enforcement
officials. This practice has fallen out of favor for a number of reasons. It is not
clear what purpose such badges serve in light of the fact that most agencies
issue other forms of identification to their officials. Most importantly, there is a
significant risk that someone seeing the badge might mistakenly think the official
has some relationship to law enforcement."
Lastly, from a simple safety perspective: an honoree displaying a badge
purposely or accidentally in the wrong environment could very possibly be
exposed to a real and present danger to his/her person by a perpetrator
contemptuous of peace officers, assuming the presence of a `badge' inferred in
his mind the person bearing the badge was a peace officer and an open target.
Sworn peace officers, by virtue of their positions, are permitted to carry
concealed weapons with which to defend themselves only after enduring months
of specialized training and legal education. The honorary would enjoy none of
that and could unwittingly place him/herself in mortal harms-way.
Staff recommends that badges not be issued to any persons not employed in the
police, fire, or lifeguard departments or who do not otherwise qualify as peace
officers under the laws of the State of California.
ALTERNATIVE:
Council members could be issued city identification cards similar to those issued
to all city employees. These cards contain the city logo, photo, department, title,
and name.
~~ o~ SeaC ~eac~
Title
The person whose photograph appears hereon is a
registered seance worker. In the event of an
emergency or disaster, this person may proceed to
their assigned area of City of Seal Beech facdiiy
1/oaid/!. F~oNi
Dowd N. Carmany
Clty Manager
WARNING. This card is issued by The Cliy of Seal
Beach for the OFFICIAL USE by the holder designated
hereon Its use by any other parson is unlawful and
makes the offender liable to heavy penalty. (P C. 52~
DEPARTMENT NAME
Page 4
FINANCIAL IMPACT:
Costs of issuing city identification cards are negligible. However, the potential
civil liability for the misuse of an honorary badge could result in the outlay of
millions of dollars by taxpayers, the honoree, and the Agency who provides them.
RECOMMENDATION:
It is respectfully recommended that the City Council receive and file this report.
SUBMITTED BY:
i
J Kir a ick, hief of Polic
NOTED AND APPROVED:
David Carina y, City Manager
Attachments:
A. City Attorney Memorandum
B. California Attorney General Opinion #06-307
C. Legal opinions of the General Counsel to the California State Sheriffs Association
' California Attorney General Opinion #06-307.
" California Attorney General Opinion #06-307.
"' California Attorney General Opinion #06-307.
'" Jones & Mayer, Client Alert Memorandum to All Police Chiefs & Sheriffs, Vol. 22 No. 10, August 1,
2007.
" 68 Op. Atty. Gen. Cal. 11.
"' Opinion No. 06-307 -Input on Behalf of CSSA, Jones & Mayer Attorneys at Law, June 14, 2006.
"" Institute for Local Self Government, Of Cookie Jars and Fishbowls: A Public Official's Guide to Use of
Public Resources; with funding from Southern California Edison, pg. 24-25.
""' League of California Cities Everydav Ethics for Local Officials -Badges for Officeholders and
Prominent Members of the Community: A Bad Idea, August 2007.
http://www.cacities.org/story_display. jsp?displaytype=pf&zone=wcm§ion=&sub_sec=&tert=...
"` League of California Cities Evervdav Ethics for Local Officials -Badges for Officeholders and
Prominent Members of the Community: A Bad Idea, August 2007.
http://www.cacities.org/story_display.jsp?displaytype=pf&zone=wcm§ion=&sub_sec=&tert=...
"Institute for Local Self Government, Of Cookie Jars and Fishbowls: A Public Official's Guide to Use of
Public Resources (funded by Southern California Edison), pg. 25.
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JONES & MAYER
Attorneys at Law
3777 N. Harbor Blvd.
Fullerton, CA 92835
Telephone: (714) 446-1400 ** Fax: (714) 446-1448 ** Website: www.Jones-Mayer.com
CLIENT ALERT MEMORANDUM
To: Alt Police Chiefs & Sheriffs
From: Martin J. Mayer
ISSUING HONORARY BADGES
On July 30, 2007, the Office of the Attorney
General issued an official opinion (No. 06-
307) addressing three questions regazding
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 yeaz 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 aze
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 Badae
Penal Code §538d(c) states that "any person
who willfully...gives, or transfers to
another, any badge, insignia, emblem,
device, or any label, certificate, cazd, 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 sepazate 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 ox she complies
with the specific standazds 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 onto discuss
the fact that the injured party would need to
establish the sheriffs 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 aze 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.
J &M
JONES & MAYER
ATTORNEYS AT LAW
3777 NORTH HARBOR BOULEVARD • FULLERTON, CALIFORNIA 92835
(714) 446-1400 • (562) 697-1751 • FAX (714) 446-1448
Richard D.Jones~
Martin J. Mayer
Kimberly Hall Barbw
Cbnshan L. Bettenhausen
Paul R Coble
Michael Q. Do
Thanes P. Duarte
FJumbeth R Feller
Blena Q. Gerh
Krista MacNevin Jee
Christina J. Johnson
Gregory P. Palmer
Danny L- Peehnan
Harold W. Potter
Dean J. Pucci
Yolanda M. Summerhgl
Ivy M. Tsai
June 14, 2006
Of Counsel
Cynthia W. Blaylock
Michael R Capin
Jeti'rey B. Love
Consultant
Mervin D. Feh~stein
Steven H. Staveley
+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
Deaz 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 maybe similar to that used by law enforcement
personnel, violate section 5384, 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.,
Marc Nolan
Deputy Attorney General
June 14, 2006
Page 2
"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 "Sheriffs 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 similaz 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.
Marc Nolan
Deputy Attorney General
June 14, 2006
Page 3
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 standazd" 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 Ctv.,
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. Averv, 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. Averv. 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?
Marc Nolan
Deputy Attorney General
June 14, 2006
Page 4
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 anoff-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. Citv 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 your
L~
y'
J. ay
MJM/cj
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JONES & MAYER
Attorneys at Law
3777 N. Harbor Blvd.
Fullerton, CA 92835
Telephone: (714) 446-1400 ** Fax: (714) 446-1448 ** VJebsite: www.)ones-Maver.com
CLIENT ALERT MEMORANDUM
To:
From:
All Police Chiefs & Sheriffs
Martin J. Mayer
MORE INFO ON BADGES
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 a-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
j 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) deaf
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..." 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. -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 wom 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 -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. 5388, 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 mimCc~iones-maver.com.
TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
EDMUND G. BROWN JR.
Attorney General
OPIlVION No. 06-307
of July 30, 2007
EDMUND G. BROWN JR.
Attorney General
MARC J. NOLAN ;
Deputy Attorney General
THE HONORABLE ROD PACHECO, DISTRICT ATTORNEY, COUNTY
OF RIVERSIDE, has requested an opinion on the following questions:
1. Does a sheriff's gift of an honorary badge to a private citizen violate
California law?
2. Does a sheriff's gift of an honorary badge to a private citizen confer peace
officer status on the recipient or give him or her the powers of a peace officer?
3. If a sheriff's gift of an honorary badge to a private citizen violates
California law, would the sheriff or the county be subject to civil liability for an injury
resulting from the recipient's subsequent misuse of the badge?
1 06-307
CONCLUSIONS
1. 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 members of the organization are law enforcement personnel, active
or retired, and the sheriff has knowledge of such fact.
2. 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. 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.
ANALYSIS
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).)
All further references to the Penal Code are by section number only.
2 06-307
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, 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
fifteen thousand dollars ($15,000).2
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
- Subdivision (c) of section 53 8e contains a similar prohibition with respect to badges
that resemble those worn by "an officer or member of a fire department or a deputy state fire
marshal."
06-307
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
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 sheriffls 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.
A county public defender's investigator may not display a peace
officer's badge or a badge which on its face purports to be a peace officer's
badge. We turn then to the question of when a badge "resembles" a peace
officer's badge thus making its display illegal under section 538d.
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.2l3, 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." [Citation.]
Peace officer badges are usually designed in the shapes of shields or
stars or combinations of both such forms. The general public associates these
4 06-307
designs with police officers, sheriff's deputies and other law enforcement
officers. County public defender's investigators' badges similarly fashioned
would resemble peace officers' badges and would likely deceive an ordinary
reasonable person into believing that the investigators have the authority of
peace officers. In our view a county public investigator's badge should not be
in the form of a shield or a star. It has been suggested that the inscription
"Public Defender's Investigator" upon the face of a shield or star badge would
preclude any possible misunderstanding on the part of an ordinary person.
This, of course, would be a question of fact depending upon the opportunity
or ability of the ordinary reasonable person to see or read the badge and to
comprehend its function. Badges are often "flashed," i.e., briefly exhibited,
and persons may react to a badge "through fear or respect." [Citation.] The
circumstance under which it is displayed or any statements made by the person
showing it will be factors in deciding whether such badge deceives someone
into believing the one exhibiting it is indeed a peace officer.
(Id. at pp. 13-14, fns. omitted.)
Here, we 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.
It bears noting that, as we observed in our earlier opinion, "[t]he circumstance
under which [the badge] is displayed or any statements made by the person showing it will
be factors in deciding whether such badge deceives someone into believing the one
exhibiting it is indeed a peace officer." (68 Ops.Cal.Atty.Gen., supra, at p. 14.) Here,
because a sheriff who provides an honorary badge will not in most cases participate in its
display by the recipient, we believe that, depending upon the circumstances, a recipient may
5 06-307
violate California law while the sheriff may not. For example, if the badge, when viewed
in isolation, is of a shape and design that could not reasonably be mistaken for an authentic
peace officer badge, the sheriff would not run afoul of section 538d, even if the recipient^
later were to display the badge for an improper purpose and did so in such a way, i.e.,
quickly and with an assertion of authority, that would deceive a member of the public into
believing that the badge was authentic. We note that in the latter circumstances, the recipient
would, in all likelihood, also be guilty of a misdemeanor under section 538d, subdivision
(b)(2), which prohibits any person from wearing or using a false or misleading badge "for
the purpose of fraudulently impersonating a peace officer or fraudulently inducing the belief
that he or she is a peace officer."
As for section 538d's requirement that the person furnishing the badge must
do so "willfully," we find here that the sheriff need not intend to defraud or deceive for this
element of the offense to be satisfied. "The word `willfully' when applied to the intent with
which an act is done or omitted means with a purpose or willingness to commit the act or to
make the omission in question. The word `willfully' does not require any intent to violate
the law, or to injure another, or to acquire any advantage." (§ 7, subd. (1).) In People v.
Johnson (1998) 67 Ca1.App.4th 67, 72, the court observed:
As a general rule, a statute proscribing willful behavior is a general
intent offense. [Citations.] A statute which includes "willfully" language may
nevertheless define a specific intent offense if the statute includes other
language requiring a specific intent. [Citations.] However, "willfully"
language without any additional specific intent language denotes a general
intent offense. [Citations.] The only intent required for a general intent
offense is the purpose or willingness to do the act or omission. [Citation.]
The term "willful" requires that the prohibited act or omission occur
intentionally. [Citation.]
As relevant to our question, section 538d prohibits any person from "willfully" providing a
false or misleading badge to another but contains no other intent language. It thus describes
a general intent offense; no specific intent or other mental state is required.
As for the word "falsely," as used in section 538d, we find that it does not
impose a requirement that the sheriff intend that the badge be used by the recipient in a
manner similar to how a peace officer would use the badge. Rather than modifying or
qualifying the sheriff s intent, the word "falsely" describes one type of badge that would
violate the statute - i.e., one that falsely purports to be authorized for peace officer use. As
discussed above, one may violate the law by willfully providing a badge that so resembles
a genuine badge that it would deceive an ordinary reasonable person. Given our assumption
that a sheriff would not knowingly provide a genuine badge or one that falsely purports to
6 06-307
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.
We also fmd that the standard "as would deceive an ordinary reasonable person
into believing that it is authorized," as used in section 538d, is sufficiently definite to satisfy
the applicable constitutional requirements. (See Tobe v. City of Santa Ana (1994) 9 Ca1.4th
1069, 1106-1107 [penal statute must provide adequate notice of the conduct proscribed and
not invite "arbitrary or discriminatory enforcement"].) In Davis v. Municipal Court (1966)
243 Ca1.App.2d 55, the court rejected a vagueness challenge to section 146c, discussed
below, that prohibits the designation of a nongovernmental organization by a name
"including, but not limited to any name which incorporates the term `peace officer,' `police,'
or `law enforcement,' which would reasonably be understood to imply" that the organization
was composed of peace officers. The court observed:
We do not agree that the phrase "reasonably be understood to imply"
fails to meet the constitutional standard required. The rule is well established
that although the words of a particular statute may not mean "the same thing
to all people, all the time, everywhere," they do not offend the requirements
of due process if they "give adequate warning of the conduct proscribed and
mark ` ...boundaries sufficiently distinct for judges and juries fairly to
administer the law .... That there may be marginal cases in which it is
difficult to determine the side of the line on which a particular fact situation
falls is not sufficient reason to hold the language too ambiguous to define a
criminal offense ...."' [Citations.] The language complained of does give
adequate warning of the conduct proscribed and does furnish a sufficiently
distinct standard for the administration of the statute.
(Id. at p. 58.)
Similarly, here, we believe that the phrase "as would deceive an ordinary
reasonable person into believing that it is authorized," as used in section 538d, is sufficiently
descriptive since it directly follows and refers to a badge "which so resembles" an authorized
badge. This deception requirement may be understood to encompass the physical
characteristics ofthe badge in question, such as its similarity to an authorized badge in shape,
size, design, coloring, and markings. Thus, we fmd that the statutory language provides
adequate notice of the conduct prohibited - i.e., providing or displaying an unauthorized
badge that is likely to deceive -and does not invite arbitrary or discriminatory enforcement.
(See Tobe v. City of Santa Ana, supra, 9 Ca1.4th at p. 1107.)
7 06-307
Turning next to the requirements of section 146c, quoted above and as further
analyzed in Davis v. Municipal Court, supra, 243 Cal.App.2d 55, we fmd 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. And consistent with our analysis of a similar standard used in section 538d, we
do not find the "reasonably be understood to imply" standard to be so vague as to render the
statute void for failure to provide adequate notice of the conduct it proscribes. (See Davis
v. Municipal Court, supra, 243 Ca1.App.2d at p. 58.)
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 Off cer 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.
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, 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.
8 06-307
"This chapter" (§§ 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.3
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 Ca1.4th 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. l 10,
112 (1968).) Significantly, section 832 provides in relevant part:
(a) Every person described in this chapter as a peace officer 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).
s Because we are concerned with the gift of an honorary badge, we may assume that
a sheriff who provides such a badge to a private citizen would not intend to appoint the
recipient to an actual peace officer position or classification or bestow upon the recipient any
sort of official status. (Cf. 59 Ops.Cal.Atty.Gen., supra, at pp. 101-103 [appointment of
reserve or special deputy sheriffs]; see also 56 Ops.Cal.Atty.Gen. 390, 391-394 (1973); 31
Ops.Cal.Atty.Gen. 121, 122-125 (1958).)
9 06-307
(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 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
honorary badge that is unlawfully deceptive within the meaning of section 538d or section
146c. For example, may civil liability be imposed if the recipient uses the badge to falsely
imprison another person? 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 ofLos Angeles (2002) 27 Ca1.4th 1112, 1127-
1128, quoting Brown v. Poway Unifred 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).} "To
10 06-307
establish liability in negligence, it is a fundamental principle of tort law that there must be
a legal duty owed to the person injured and a breach of that duty which is the proximate
cause of the resulting injury. [Citation.]" (Jacoves v. United Merchandising Corp. (1992)
9 Ca1.App.4th 88, 114.)
"Although a statute that provides solely for a criminal penalty does not create
a civil liability, the significance of the statute in a civil suit for negligence involves its
formulation of a standard of conduct that the court then adopts in the determination of such
liability. [Citation.]" (Michael R. v. Jeffrey B. (1984) 158 Ca1.App.3d 1059, 1067.) Stated
differently, while the violation of a criminal statute does not, in itself, establish that a person
alleged to have been negligent actually owed a duty to the person ultimately injured, or that
the person's actions were the proximate cause of the injury ultimately suffered (see, e.g.,
Richards v. Stanley (1954) 43 Cal.2d 60, 62-63; Hyde v. Avalon Air Transport, Inc. (1966)
243 Ca1.App.2d 88, 92), such a violation may give rise to a presumption of negligence if,
under the circumstances, the person's injuries resulted from an act that the criminal statute
was designed to prevent and the person was within the class for whose protection the statute
was adopted (Evil. Code, § 669; Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th
1256, 1285-1286; Galvez v. Friedds (2001) 88 Ca1.App.4th 1410, 1420). As we have
previously concluded, the purpose ofthe prohibition of section 538d is "to prevent confusion
among members of the general public as to the identity or authority of a person exhibiting
a badge" (68 Ops.Cal.Atty.Gen., supra, at p. 14), and we believe that a similar purpose is
evident from the text of section 146c.
While the Act provides immunity for a public employee's discretionary acts
(Gov. Code, § 820.2), a sheriff would clearly lack the discretion to provide a deceptive badge
to a private citizen in violation of California law.4 Of course, to prevail on a claim for
damages here, the injured party must also establish that the sheriff's negligence or other
wrongful action was a proximate cause of the injury. (See Talbott v. Csakany (1988) 199
Ca1.App.3d 700, 706-707 [proximate cause required entrusting another with means of
causing injury that was not otherwise available].) Assuming proximate cause is established,
however, the immunity generally provided to public employees from liability for the actions
of third parties is unavailable. (Gov. Code, § 820.8 ["Except as otherwise provided by
statute, a public employee is not liable for an injury caused by the act or omission of another
person. Nothing in this section exonerates •a public employee from liability for injury
4 And, although this discussion concerns private citizen recipients of honorary badges,
we note that even law enforcement personnel are not immune from liability for false arrest
or false imprisonment. (See Gov. Code, § 820.4; Asgari v. City of Los Angeles (1997) 15
Ca1.4th 744, 752-753; Sullivan v. County of Los Angeles (1974) 12 Ca1.3d 710, 719.)
11 06-307
proximately caused by his own negligent or wrongful act or omission."].)5 In other words,
while the sheriff would be immunized from liability for the acts of the badge recipient for
actions brought against the sheriff under a theory of vicarious liability, he or she would be
potentially liable based upon his or her own negligent conduct in providing the badge.
As for the potential vicarious liability of the county as the sheriff's employing
governmental agency, "[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 Ca1.4th 291, 296; Sullivan v. County ofLosAngedes (1974)12
Ca1.3d 710, 717; Ross v. San Francisco Bay Area Rapid Transit Dist. (2007) 146
Cal.App.4th 1507, 1514; Hoblitzell v. City oflone (2003)110 Cal.App.4th 675, 680-681; 59
Ops. Ca1.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, l2 Ca1.4th at pp. 297-301; Farmers Ins. Group v. County ofSanta
Clara (1995) 11 Ca1.4th 992, 1003-1007; Hoblitzell v. City oflone, supra, 110 Cal.App.4th
at pp. 681-686.)
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.
*****
s Whether this or other Act immunities or defenses might apply, or whether any legal
duty or proximate cause could conceivably be shown, in the situation where anon-deceptive
honorary badge is furnished, which the recipient later uses to cause an injury, is beyond the
scope of this opinion.
12 06-307