BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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SB 169 (Benoit)
As Introduced February 14, 2009
Hearing date: April 14, 2009
Penal Code
SM:mc
RETIRED PEACE OFFICERS: BADGES
HISTORY
Source: Author
Prior Legislation: SB 1212 (Cox) - 2008, failed on Senate Floor
SB 1942 (Karnette) - Ch. 430, Statutes of 2000
Support: California State Sheriffs' Association
Opposition:None known
KEY ISSUES
SHOULD THE HEAD OF A LOCAL AGENCY THAT EMPLOYS PEACE OFFICERS BE
AUTHORIZED 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
FROM THAT AGENCY?
SHOULD THE HEAD OF A LOCAL AGENCY THAT EMPLOYS PEACE OFFICERS BE
AUTHORIZED TO REVOKE THIS FORM OF IDENTIFICATION IN THE EVENT OF
MISUSE OR ABUSE?
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PURPOSE
The purpose of this bill is to authorize the head of 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 from that agency
and to revoke that form of identification in the event of misuse
or abuse.
Existing law 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
538d(a).)
Existing law provides 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
two thousand dollars ($2,000), or by both that imprisonment and
fine. (Penal Code 538d(b)(1).)
Existing law provides that 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
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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 two thousand dollars
($2,000), or by both that imprisonment and fine. (Penal Code
538d(b)(2).)
Existing law provides that 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). (Penal Code 538d(c).)
Existing law provides that any person who falsely represents
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 two
thousand five hundred dollars ($2,500), or both the fine and
imprisonment:
Arrests, detains, or threatens to arrest or detain any
person.
Otherwise intimidates any person.
Searches any person, building, or other property of any
person.
Obtains money, property, or other thing of value.
(Penal Code 146a(a).)
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Existing law provides that any person who falsely represents
himself or herself to be 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 two thousand five hundred dollars ($2,500), or by
both that fine and imprisonment, or by imprisonment in the state
prison:
Arrests, detains, or threatens to arrest or detain any
person.
Otherwise intimidates any person.
Searches any person, building, or other property of any
person.
Obtains money, property, or other thing of value.
(Penal Code 146a(b).)
Existing law provides that any person who without authority
impersonates, or wears the badge of, a member of the California
Highway Patrol with intention to deceive anyone is guilty of a
misdemeanor. (Vehicle Code 27.)
Existing law states that an individual authorized by Section
1299.02 to apprehend a bail fugitive shall not wear or otherwise
use a badge that represents himself or herself as belonging to
any part or department of the federal, state, or local
government. (Penal Code 1299.07.)
This bill would authorize the head of 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 from that agency.
This bill states that the head of a local agency that employs
peace officers is authorized to revoke identification granted to
a retired peace officer or volunteer, as specified, in the event
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of misuse or abuse.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
incarceration.<1>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
----------------------
<1> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
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period of two or three years.<2>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1.Need for This Bill
According to the author:
Current law provides that 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 is guilty of a
misdemeanor (California Penal Code 538d(c)).
SB 169 would empower the head of a local agency that employs
peace officers to bestow upon retirees an honorary badge,
emblem, device, label, certificate, card writing, or other
insignia that states that person's position as an honorable
retired peace officer from that agency. This bill will give
these local agencies a valuable tool for honoring, upon
retirement, members of their agency who deserve such
recognition.
2. Opinion of the Attorney General Regarding Honorary Badges
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<2> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (Feb. 9, 2009).
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In response to a question from the District Attorney of
Riverside County, whether it is lawful for a sheriff to give
honorary badges to private citizens, the Attorney General issued
a formal opinion concluding that it is not. (90 Cal. Op. Atty.
Gen. 57 (2007).) The Attorney General's opinion examines the
language of Penal Code Section 538d, which prohibits false
impersonation of a peace officer. That section specifically
provides that it is a crime for any person, other than one who
by law has the authority of a peace officer, to wear, exhibit,
or use 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. The
Attorney General, citing its own opinion from 1985, explains,
"[t]he 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." (Id. at p.4, citing 68 Cal. Op.
Atty. Gen. 11 at 13-14.) Accordingly, "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." (90 Cal. Op.
Atty. Gen. 57 at p.5.)
SB 169 would authorize badges or other forms of identification
to be given to honorably retired peace officers who worked for
local agencies. The bill, in an apparent attempt to comply with
the Attorney General's opinion, would require that the badge
clearly state the person's status as an honorably retired peace
officer. The Attorney General's opinion addresses this issue:
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
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often "flashed," i.e., briefly exhibited, and
persons may react to a badge "through fear or
respect." [Citation.] The circumstances 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.
(90 Cal. Op. Atty. Gen. 57 at p.5, citing 68 Cal. Op.
Atty. Gen. 11 at 13-14.)
The Penal Code specifically delineates the scope of authority
for each of an array of persons with some type of law
enforcement powers. Where such persons are granted the
authority of a peace officer, section 538d is clear, they may be
issued badges under current law. (The prohibition applies to
"[a]ny person, other than one who by law has the authority of a
peace officer . . ." (Penal Code 538d(b).) Where such
persons do not have the authority of a peace officer,
authorizing them to exhibit a badge that would lead an ordinary
person to believe they have such authority, would run counter to
the very purpose of the prohibition against impersonating a
peace officer contained in 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 at p.4, citing 68 Cal. Op. Atty. Gen. 11 at
13-14.)
With respect to retired peace officers, because such retired
officers retain no authority beyond that of an ordinary
citizen, any badge issued to them would be, in essence, an
honorary badge, in recognition of their past service.
Recognizing this service is important and desirable. The
question this bill poses is whether it is appropriate to honor
this service by issuing a form of identification that could
easily mislead an average citizen into thinking this person
has retained some peace officer powers. The fact that the
badge or ID card would state that the person is an honorably
retired peace officer would not alleviate that confusion. How
many average citizens would know whether a retired peace
officer retains some peace officer powers? Retired peace
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officers are permitted to carry concealed weapons (Penal Code
12027, 120271) so this confusion would be well-founded.
There are many ways that honorably retired peace officers may
be recognized. For example, a plaque or other ornament with
the officer's badge affixed. Committee members may wish to
consider, what would be the intended purpose of carrying such
a form of identification if not to either give the impression
that the bearer retains some authority of a law enforcement
officer or perhaps to tacitly imply that the bearer should be
afforded some special treatment, perhaps by a fellow peace
officer.
WOULD ISSUING LAW ENFORCEMENT BADGES TO RETIRED PEACE OFFICERS
WHO HAVE NO LAW ENFORCEMENT AUTHORITY CREATE CONFUSION AMONG THE
PUBLIC AS TO THAT PERSON'S AUTHORITY?
ARE THERE OTHER WAYS TO APPROPRIATELY RECOGNIZE THE SERVICE OF
RETIRED PEACE OFFICERS THAT WOULD NOT CARRY THE RISK OF GIVING A
FALSE IMPRESSION OF AUTHORITY?
3. Recent Problems With Badges
Just this past week an incident was reported in the
Sacramento Bee involving a 78-year-old retired police chief
who was arrested for impersonating an officer after he
allegedly brandished a badge and gun at a motorist, who he
felt had cut him off in traffic:
A retired Placer County Sheriff's deputy faces charges
in Sacramento County stemming from a road-rage
incident earlier this year in Citrus Heights in which
he is suspected of pulling a gun, records show.
The Sacramento County district attorney has charged
Buddy Trumbo, 78, a retired Placer County sheriff's
deputy, with two misdemeanor counts - brandishing a
weapon and impersonating a police officer, according
to documents filed in Sacramento County Superior
Court.
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Trumbo - who also formerly was the police chief in
Plymouth, a small town in Amador County - is scheduled
for arraignment Wednesday stemming from the Feb. 6
incident.
Trumbo is accused of flashing a badge and pulling a
gun on James Torrez, 46, of Citrus Heights after
Torrez allegedly cut him off coming out of a parking
lot near the corner of Auburn Boulevard and Van Maren
Lane, according to a Citrus Heights Police Department
report.
Trumbo is accused of swerving his SUV in front of
Torrez at a nearby red light and holding a pistol at
him, all the while telling him he was under arrest and
trying to handcuff him, according to Torrez's
statement to police.
"He was screaming at me to get on the ground and get
out of the car," Torrez said in an interview.
Trumbo disputed the motorist's version of events in a
phone interview. Trumbo said he did nothing wrong and
that he feared for his safety and the safety of
others. He claimed Torrez was acting too erratically.
"If he was a normal person, I could have just talked
to him," said Trumbo. "He screamed and yelled and
cursed me."
Trumbo was cited and released following the incident.
Trumbo said he planned to enter a not guilty plea.
"I've carried a gun for 40 years and never had an
incident (until that day)," he said.
If convicted, Trumbo could face jail time, according
to court documents.
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Torrez said he's upset that Trumbo is not charged with
a felony.
"I don't think (the charges) were a fair judgment on
what happened," Torrez said.
(Retired Police Chief Arrested for Pulling a Gun in Citrus
Heights Road Rage Incident, Sacramento Bee, April 5, 2009.
http://www.sacbee.com/static/weblogs/crime/archives/021286.html)
In recent years other incidents involving the misuse of badges
have gained wide publicity. On January 22, 2007, the Los
Angeles Times stated in an editorial, "Speaker Fabian Nunez
(D-Los Angeles) has issued an order banning distribution of
official California State Assembly Commissioner badges simply
because of an unfortunate incident last year, in which a man
confronted by Redondo Beach police allegedly flashed a badge
issued by Assemblyman Mervin Dymally (D-Compton) and announced,
'You don't know who I am.'" The Times editorial continued
sarcastically:
There has been far too much of this spoilsport
privilege revoking lately. Sure, an official
badge placed in your wallet may falsely suggest
that you are a law enforcement officer with the
power to arrest. But that doesn't mean you
shouldn't be able to buy one. A campaign
contribution ought to get you something tangible.
So what if a civilian in the Riverside County
sheriff's civilian support group allegedly used
his courtesy badge in 2004 to demand money from an
associate in a business dispute? Or that a man in
2005 allegedly used a similar badge, issued by the
Orange County sheriff, to threaten golfers who
were playing ahead of him.
Banning badges undermines a storied heritage of
abuse of privilege - a heritage with deep roots in
L.A. It is here that a city police commissioner
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reportedly used his badge to bypass airport
security in 1995, and a building commissioner
allegedly used his badge while soliciting a
prostitute in 1996. (We don't know if he said,
"Do you know who I am?" while trying to strike his
bargain, but we like to think he did.)
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On November 30, 2007, the Orange County Register reported:
Santa Ana Orange County Sheriff Mike Carona,
already fighting public corruption charges, faces
new accusations that he doled out police badges
and concealed weapon permits to more than 80
political supporters who weren't given training,
according to a lawsuit filed this week by a
sheriff's department veteran.
Darrell Poncy alleges Carona wanted him and former
Lt. Bill Hunt to devise a quick training course
for 80 to 90 individuals to be reservists, or
professional service volunteers, in the late
1990s, according to the lawsuit filed in Orange
County Superior Court Tuesday.
Poncy worked for the department for 27 years,
until his retirement in August 2004, according to
the claim.
Carona has faced repeated criticism over his
handling of the controversial reserve deputy
program. He is criminally charged with appointing
family, friends and business associates of former
Assistant Sheriff Don Haidl as reserve deputies
because Haidl helped bankroll Carona's 1998
campaign.
Confusion among members of the general public as to the identity
or authority of a person exhibiting a badge, creates substantial
public safety concerns and can result in truly horrendous
consequences. On July 26, 2006, the Sacramento Bee reported:
A man impersonating a police officer lured an
18-year-old woman into a car and sexually
assaulted her early Saturday morning, authorities
said.
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The incident was similar to four other assaults in
the region since October , but authorities "have no
way to link" the crimes, said Sacramento Sheriff's
spokesman Sgt. R.L. Davis.
According to police, the victim was outside a Jack
in the Box restaurant at Stockton Boulevard and
Elsie Avenue about 12:30 a.m. when the suspect
approached her, claiming to be a law enforcement
officer. The suspect was wearing a dark collared
shirt, tan slacks and a gold shield hanging from
his neck , a Sheriff's Department news release
stated . . . (emphasis added.)
DO RECENT EVENTS REGARDING THE ISSUANCE OF HONORARY BADGES
INDICATE THE POTENTIAL FOR ABUSE?
COULD AUTHORIZING LAW ENFORCEMENT AGENCIES TO ISSUE OFFICIAL
POLICE BADGES TO PERSONS WHO HAVE NO PEACE OFFICER AUTHORITY
CREATE A THREAT TO PUBLIC SAFETY?
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