BILL ANALYSIS
SB 169
Page 1
Date of Hearing: June 16, 2009
Counsel: Kathleen Ragan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Juan Arambula, Chair
SB 169 (Benoit) - As Amended: May 27, 2009
SUMMARY : Authorizes the head of an agency that employs
specified peace officers to issue identification in the form of
a badge, insignia, emblem, device, label, certificate, card or
writing that clearly states that the person has honorably
retired following service as a peace officer from that agency.
Specifically, this bill :
1)States that the head of an agency that employs peace officers,
as defined, is authorized to issue identification in the form
of a badge, insignia, emblem, device, label, certificate, card
or writing that clearly states that the person has honorably
retired following service as a peace officer from that agency.
2)Provides that if the head of an agency issues a badge to an
honorably retired peace officer that is not affixed to a
plaque or other memento commemorating the retiree's service
for the agency, the words "honorably retired" must be clearly
visible above, underneath, or on the badge itself.
3)Authorizes the head of an agency that employs peace officers,
as defined, is authorized to revoke identification granted
pursuant to this subdivision in the event of misuse or abuse.
4)Specifies that the term "honorably retired" does not include
an officer who has agreed to a service retirement in lieu of
termination.
EXISTING LAW :
1)Provides that any person other than an authorized 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 to fraudulently
impersonate a peace officer, or with the intent to
fraudulently induce the belief that he or she is a peace
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officer, is guilty of a misdemeanor. [Penal Code Section
538d(a).] States that this misdemeanor is punishable by
imprisonment in a county jail not to exceed one year, by a
fine not to exceed $2,000, or by both that imprisonment and
fine. [Penal Code Section 538d(b)(1).]
2)States that any person who willfully wears or uses any badge
that falsely purports to be authorized for the use of a person
who, by law is given the authority of a peace officer, or
which so resembles the authorized badge of a peace officer so
as to deceive any ordinary reasonable person into believing
that it is authorized for the use of a person given the legal
authority of a peace officer, for the purpose of fraudulently
impersonating a peace officer, or of fraudulently inducing the
belief that he or she is a peace officer, is guilty of a
misdemeanor, punishable by imprisonment in a county jail not
to exceed one year, by a fine not to exceed $2,000, or by both
that imprisonment and fine. [Penal Code Section 538d(b)(2).]
3)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
writing, which falsely purports to be authorized for the use
of a person with the legal 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 $15,000. [Penal Code Section 538d(c).]
4)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
$2,500, or by both that fine and imprisonment, or by
imprisonment in the state prison [Penal Code Section 146a(b)]:
a) Arrests, detains or threatens to arrest or detain any
person;
b) Otherwise intimidates any person;
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c) Searches any person, building, or other property of any
person; or
d) Obtains money, property, or other thing of value.
5)States that any person who without authority impersonates, or
wears the badge of, a member of the California Highway Patrol
(CHP) with intention to deceive anyone is guilty of a
misdemeanor. (Vehicle Code Section 27.)
6)Authorizes the CHP Commissioner to issue to each CHP member a
badge of authority with the seal of the State of California in
the center thereof, the words "California Highway Patrol"
encircling the seal and below the designation of the position
held by each member to whom issued. (Vehicle Code Section
2257.)
7)States that neither the Commissioner nor any other person
shall issue a badge to any person who is not a duly appointed
CHP member. (Vehicle Code Section 2258.)
8)Provides that any peace officer described in this section who
has been honorably retired shall be issued an identification
certificate by the law enforcement agency from which the
officer has retired. Defines the term "honorably retired" as
all peace officers who have qualified for, and accepted, a
service or disability retirement. States that the term
"honorably retired" does not include an officer who has agreed
to a service retirement in lieu of termination. [Penal Code
Section 12027(a)(1)(A).]
9)States that any peace officer employed by an agency listed in
Penal Code Section 830.1 or 830.2, or in Penal Code 830.5, who
retired after January 1, 1981, shall have an endorsement on
the identification certificate stating that the issuing agency
approves the officer's carrying of a concealed weapon. [Penal
Code Section 12027.1(a)(1)(A)(i).]
10)States that an identification certificate authorizing an
officer to carry a concealed weapon may be revoked only after
a hearing, as specified, following personal service of notice
of the hearing and a 15-day opportunity to respond. [Penal
Code Section 12027.1(b)(2).]
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11)Defines, in the Penal Code, persons who are peace officers
whose authority extends to any place in the state, as
specified. [Penal Code Section 830.1; 830.2.]
12)Specifies persons who are peace officers whose authority is
limited by the type of offense or by the officers' primary
duty as specified by the employing agency. [Penal Code
Sections 830.3, 830.31 (officers employed by specified
agencies who may make an arrest when there is immediate danger
to person or property); 830.32 (Community college or school
district police); 830.33 (Bay Area Rapid Transit [BART])
police or specified transit police) et. seq.]
13)Provides that the prohibition against carrying concealed
weapons does not apply to peace officers listed in Penal Code
Section 830.1, 830.2, 830.33(a) (BART police), whether active
or honorably retired, Penal Code Section 830.5(c) (specified
officers of the Department of Corrections and Rehabilitation
who are honorably retired), or other honorably retired peace
officers who were authorized to, and did, in the course of
their employment, carry firearms. [Penal Code Section
12027(a)(1)(A).]
14)Provides that an individual authorized by law 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 Section 1299.07(c).]
15)States that that every person who sells or gives to another a
membership card, badge, or other device, where it can be
reasonably inferred by the recipient that display of the
device will have the result that the law will be enforced less
vigorously as to such person than would otherwise be the case
is guilty of a misdemeanor. [Penal Code Section 146d.]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "SB 169 will
change current law by allowing the heads of local or state
agencies that employ peace officers as defined to issue an
honorary badge, insignia, emblem, device, label, certificate,
card, or writing that clearly states the recipient's position
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as an honorably 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)The Purpose of this Bill : According to background information
provided by the author, "SB 169 will change current law by
allowing the heads of local or state agencies that employ
peace officers, as defined, to issue a number of honorary
insignia that clearly state the recipient's position as an
honorably 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."
3)Opinions of the Attorney General : In response to a question
from the District Attorney of Riverside County concerning
whether it is lawful for a sheriff to give honorary badges to
private citizens, the Attorney General (AG) issued a formal
opinion that such practice is not lawful. [90 Cal. Op. Atty.
Gen. 57 (2007).] The AG'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 AG 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 page 4, citing 68 Cal. Op. Atty. Gen. 11, at 13 - 14.) The
2007 Opinion of the AG, supra, further cited the previous 1985
opinion in stating, "In our view, a county public defender'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. The circumstance under which it is displayed or any
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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.)
In conclusion, the AG stated, "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.)
4)Following Issuance of the 2007 Attorney General's Opinion, The
Attorney General's Office Reportedly Required Its Staff
Attorneys to Return the Honorary Police-Type Badges That Had
Been Distributed: According to an article in the Oakland
Tribune, "the Attorney General's office is reclaiming honorary
police-type badges it distributed to its 1,200 staff
attorneys, including those in Oakland and San Francisco,
because the agency has declared the practice illegal."
[Greissinger, Honorary police badges running afoul of the law,
Oakland Tribune (August 31, 2007).] This article stated, "The
agencies that issue the badges - and by extension, taxpayers -
could be subject to civil liability for any injury resulting
from misuse of the badges, the opinion states. Around the
state, honorary badges have been handed out to an untold
number of city council members, county supervisors, animal
control officers, prosecutors, public defenders, law
enforcement auxiliary groups, ceremonial mounted posses,
courtroom clerks, emergency dispatchers and others." The
article quoted a Deputy Ag who stated, "I don't believe that
the recall of badges would in any way affect our ability to do
our jobs" and added that deputy attorneys have other
credentials sufficient to allow them to do their work.
5)Past Problems with Badges: The Sacramento Bee recently
reported an incident involving a 78-year-old retired police
chief who was arrested for impersonating an officer after he
allegedly brandished a badge and gun at another motorist who
he felt had cut him off in traffic. According to the article,
"The Sacramento District Attorney has charged ? [t]he retired
Placer County sheriff's deputy with two misdemeanor counts:
brandishing a weapon and impersonating a police officer,
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according to documents filed in Sacramento Superior Court."
[Retired Police Chief Arrested for Pulling a Gun in Citrus
Heights Road Rage Incident, Sacramento Bee (April 5, 2009).]
6)This Bill Applies Only to Specified Honorably Retired Peace
Officers Eligible for Permits to Carry Concealed Weapons:
Arguably, a retired officer who carries a concealed weapon has
a compelling interest in having a badge identifying him or her
as an honorably retired peace officers. According to Penal
Code Section 12027(a)(2), if the issuing agency denies or
revokes that particular officer's privilege to carry a
concealed firearm, the agency shall stamp on the officer's
identification certificate "No CCW privilege."
7)Arguments in Support :
a) According to the California Conference of Arson
Investigators , "We feel as you do that it is important to
authorize the head of an agency to revoke identification
granted to honorably retired peace officers in the event of
misuse or abuse. The misuse or abuse of official
identification granted to honorably retired peace officers
is clearly inappropriate and the head of an agency should
have the ability and authorization to revoke such
identification when necessary."
b) According to the California State Sheriffs' Association ,
"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 is
guilty of a misdemeanor.
"SB 169 would allow the heads of local agencies that employ
peace officers to issue honorary insignia that clearly
state the recipient's position as an honorably retired
peace officer from that agency. This bill allows local
agencies to honorably recognize, upon retirement, members
of their agency who deserve such recognition while still
protecting against fraudulent distribution and use of peace
officer badges."
8)Arguments in Opposition : According to the Peace Officers
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Research Association of California , "This bill gives no avenue
of appeal per Penal Code Section 12027.1. In addition, there
is no clear definition of misuse or abuse within this piece of
legislation. While we understand the author's intent, this
legislation only covers Penal Code 830.1 and 830.2 peace
officers, though there are several more categories of
officers. There is a great need for additional clarification
before we can support this measure."
9)Prior Legislation :
a) SB 1212 (Cox), of the 2007-08 Legislative Session of
2007-08, was similar to this bill, although wider in scope
in that SB 1212 would have allowed badges to be awarded to
volunteers as well as to retired peace officers. SB 1212
failed passage on the Senate floor.
b) AB 1448 (Niello), Chapter 241, Statutes of 2007, makes
it a crime for a vendor selling a law enforcement uniform
to fail to verify that the person buying uniform is an
employee of the law enforcement agency identified on the
uniform, unless the uniform is sold as a prop for a motion
picture or other video or theatrical event, and prior
written permission was obtained from the law enforcement
agency.
c) SB 1942 (Karnette), Chapter 430, Statutes of 2000, makes
it a separate offense to willfully wear or use any badge
that falsely purports to be authorized for the use of a
peace officer, or that so resembles the authorized badge of
a peace officer with the intent of fraudulently
impersonating a peace officer, punishable by imprisonment
in the county jail not to exceed one year; a fine of
$2,000; or by both that imprisonment and fine.
d) SB 1390 (Kopp), Chapter 279, Statutes of 1998, adds to
the prohibitions against unlawful use of a peace officer
badge the unlawful or fraudulent use of a peace officer
uniform, and created a one-year enhancement upon the
sentence of any person who violated the provisions of this
law during the commission of a felony.
REGISTERED SUPPORT / OPPOSITION :
Support
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California Conference of Arson Investigators
California State Sheriffs' Association
Sheriff, San Bernardino County
Opposition
Peace Officers Research Association of California
Analysis Prepared by : Kathleen Ragan / PUB. S. / (916)
319-3744