Penal Code 538d PC – Impersonating a Police Officer – California Law

California Penal Code 538d PC makes it a crime to pretend to be, or to impersonate, a police officer. This may include wearing a police uniform or displaying a fake badge. The offense is a misdemeanor that carries a penalty of up to one year in jail and a fine of up to $2000.00.

PC 538 d states that “any person…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” and “any person…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…”

Examples

• dressing up as a cop and pretending to patrol a neighborhood.
• trying to intimidate a fellow motorist with a fake police badge.
• wearing a real police uniform and threatening to arrest someone.

Defenses

A defendant can challenge a charge under this statute with a legal defense. Common defenses include:

• no intent to defraud,
• the film or theater prop exception, and/or
• no impersonation of a police officer.

Penalties

A violation of this statute is a misdemeanor. This is opposed to a felony charge or an infraction.

The offense is punishable by:

• custody in county jail for up to one year, and/or
• a maximum fine of $2,000.

A judge can award misdemeanor (or summary) probation in lieu of jail time.

Our California criminal defense attorneys will discuss the following in this article:

• 1. When is impersonating a police officer a crime?
• 2. How can a person fight a 538d PC charge?
  • 2.1. No intent to defraud
  • 2.2. Film or theater prop
  • 2.3. No impersonation of a police officer
• 3. What are the penalties?
• 4. Are there immigration consequences?
• 5. Can a person get a conviction expunged?
• 6. Does a conviction affect gun rights?
• 7. Are there related offenses?
  • 7.1. False impersonation – PC 529
  • 7.2. Resisting arrest – PC 148a1
  • 7.3. Identity theft – PC 530.5

1. When is impersonating a police officer a crime?

A prosecutor must prove the following to convict a person of this offense:

1. the defendant willfully wore, exhibited or used the authorized uniform, insignia, emblem, device, label, certificate, card or writing of a peace officer, or
2. the accused willfully wore, exhibited or used the authorized badge of a peace officer.¹

Note, though, that a defendant will only be guilty under this statute if he also:

1. acted with the intent to fraudulently impersonate a peace officer, or
2. acted with the intent to fraudulently induce the belief that he is a peace officer.²

The term “fraud” refers to a deliberate act that is designed to:

• secure an unfair gain, or
• cause another person to suffer a loss.³

Example: Marcos is concerned about an increase in vandalism in his neighborhood. He borrows a police uniform from his cousin and conducts “nightly patrols.” His intent is to make potential criminals believe there is extra police presence in the area.

Here, Marcos is guilty of impersonating an officer. He wore a police uniform and badge and did so with the intent to fraudulently make other people believe he was an officer.

Note that Penal Code 538d also requires:

• vendors of law enforcement uniforms to verify that,
• any person who purchases a uniform is a law enforcement employee.⁴

2. How can a person fight a 538d PC charge?

A defendant can try to beat a PC 538 charge with a good legal defense.

Three common defenses are:

1. no intent to defraud,
2. film or theater prop, and/or
3. no impersonation of a police officer.

2.1. No intent to defraud

Recall that a person is only guilty under this statute if he acts with some type of fraudulent intent. It is a defense, therefore, for an accused to say there was no fraud. Perhaps, for example, a defendant wore a police insignia:

• not to trick someone into believing he was a cop,
• but to pull a joke on a friend.

2.2. Film or theater prop

A person is not guilty under this statute if:

1. he wears a uniform solely as a prop for a movie or play, and
2. he has permission from the police to do so.⁵

This is an exception to the general law specifically set forth in Penal Code 538d.

2.3. No impersonation of a police officer

These laws only apply to the impersonation of a police officer. A person cannot be charged under this statute for impersonating some other professional (such as a firefighter). Note, though, that the person might be charged in such an event under some other California statute.

3. What are the penalties?

A violation of Penal Code 538d is a misdemeanor.

If a defendant violates this law by using a uniform, insignia, emblem, device, label, certificate, card or writing of a peace officer, the potential penalties are:

• imprisonment in county jail for up to six months, and/or
• a maximum fine of $1,000.⁶

If a defendant violates the statute by using a police badge, the offense is punishable by:

• custody in jail for up to one year, and/or
• a maximum fine of $2,000.⁷

Note that uniform vendors that violate this statute can be hit with a $1,000 fine.⁸

4. Are there immigration consequences?

A conviction for impersonating an officer generally does not impact a person’s immigration status.

Sometimes non-citizens can be:

• deported, or
• marked as inadmissible

after being convicted of a California crime.

An example involves convictions for crimes involving moral turpitude.

PC 538d violations, though, do not have this effect.

5. Can a person get a conviction expunged?

A person can get an expungement if convicted under this statute.

A judge can award an expungement if the defendant successfully completes:

• probation, or
• his jail term (whichever was imposed).

An expungement is favorable since it:

• removes many of the hardships,
• associated with a conviction.

6. Does a conviction affect gun rights?

A conviction of these laws does not hurt a person’s gun rights.

California law says that some crimes, like felonies, will prohibit a person from:

• owning a gun, or
• possessing a gun.

Impersonating a police officer, though, will not produce either of these results.

7. Are there related offenses?

There are three crimes related to impersonating an officer. These are:

1. false impersonation – PC 529,
2. resisting arrest – PC 148a1, and
3. identity theft – PC 530.5.

7.1. False impersonation – PC 529

Penal Code 529 PC is the California statute that defines the crime of “false impersonation.” The crime is committed when someone:

• uses another person’s name
• to cause harm or gain an unjust advantage.

Note that no harm has to occur for a person to commit a crime under PC 538d. The offense is complete by the wearing of a uniform or badge.

7.2. Resisting arrest – PC 148a1

Penal Code 148 PC is the California statute that makes it a crime for a person to:

1. willfully resist or obstruct a police officer, or EMT, and
2. do so in the performance of his official duties.

It is not a defense, though, if a person is:

• acting in self-defense,
• to unlawful police aggression.

7.3. Identity theft – PC 530.5

Penal Code 530.5 PC is the California statute that defines the crime of identity theft.

A person commits this offense when he:

1. takes someone’s personal identifying information, and
2. uses it in any unlawful or fraudulent manner.

As with Penal Code 538d, a prosecutor must prove fraudulent intent under this statute.

For additional help…

For additional guidance or to discuss your case with a criminal defense attorney, we invite you to contact us at Shouse Law Group.

For information on impersonating a police officer in Nevada or Colorado, please see our articles on:

• “NRS 199.430 – Nevada Laws for Impersonation of a Public Officer,” and
• “Impersonating a Peace Officer – Colorado Law CRS 18-8-112.”

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