Over time a process server will have occasions to experience a variety of interactions with law enforcement. Most servers will find they are given a measure of credibility by most police officers so long as their actions have been reasonable and prudent.
But one thing must be clearly understood, a process server is simply a citizen. We have no police powers. We have no special authority of any kind. We are not officers of the court.
Unfortunately, some process servers experience a certain attraction to the idea of having police powers or at least appearing to have them. There are a variety of reasons for this and this lesson will attempt to deal with them in a straight forward and objective fashion. We’ll also examine what reasonable steps might be taken in terms of using a badge or shield, wearing a uniform, or marking a vehicle to give it an “official” appearance.
First have a look at the two pertinent RCW’s on this topic:
RCW 9A.60.040
Criminal impersonation in the first degree.
| (1) |
A person is guilty of criminal impersonation in the first degree if the person: | |
| (a) |
Assumes a false identity and does an act in his or her assumed character with intent to defraud another or for any other unlawful purpose; or | |
| (b) |
Pretends to be a representative of some person or organization or a public servant and does an act in his or her pretended capacity with intent to defraud another or for any other unlawful purpose. | |
| (2) |
Criminal impersonation in the first degree is a class C felony. | |
RCW 9A.60.045
Criminal impersonation in the second degree.
| (1) |
A person is guilty of criminal impersonation in the second degree if the person: | ||
| (a) |
|||
| (i) |
Claims to be a law enforcement officer or creates an impression that he or she is a law enforcement officer; and | ||
| (ii) |
Under circumstances not amounting to criminal impersonation in the first degree, does an act with intent to convey the impression that he or she is acting in an official capacity and a reasonable person would believe the person is a law enforcement officer; or | ||
| (b) |
Falsely assumes the identity of a veteran or active duty member of the armed forces of the United States with intent to defraud for the purpose of personal gain or to facilitate any unlawful activity. | ||
| (2) |
Criminal impersonation in the second degree is a gross misdemeanor. | ||
The first (040) draws the brightest line for us because it involves intent to commit a crime. Very clearly it makes any form of impersonation (of an officer or otherwise) illegal if the intent of the perpetrator is to commit a fraud or other unlawful purpose of any kind. In other words, the impersonator intends on using the assumed persona to commit a crime. If the person is found guilty of committing a crime (e.g. robbing a bank or home invasion) and was found to have done so using an assumed identity, then that person might well also be found guilty of criminal impersonation.
We will, for the purposes of this lesson, assume process servers have no such intent and strongly advise any person who does to find another line of work.
This leaves us with the second statute (045) to consider more closely. As is done in other areas of this course we’ll start by disassembling and carefully examining the statute. We’ll discuss section (1)(a) first and treat (b) separately.
The first major difference between 040 and 045 is that 045 is far more limited in what constitutes the crime.
A person is guilty of criminal impersonation if he or she:
| (i) |
Claims to be a law enforcement officer or creates an impression that he or she is a law enforcement officer; and |
| (ii) |
Under circumstances not amounting to criminal impersonation in the first degree, does an act with intent to convey the impression that he or she is acting in an official capacity and a reasonable person would believe the person is a law enforcement officer; or |
Note the connecting “and.” The perpetrator must violate both parts of subsection (a) in order to be found guilty. He or she must claim to be a law enforcement officer or create that impression when indeed he or she is not an officer at all AND perform an act with intent to cause others to believe he or she an official capacity (power) when in fact he or she does not.
NOTE: In order to be found guilty of violating 045 there is no requirement that an additional crime be committed as in 040.
Instead the law invokes the Reasonable Person Rule. Is the perpetrator saying and doing things that would lead a Reasonable Person to believe he or she is a law enforcement officer when indeed that is not the case? If the answer is “yes” then the person might be found guilty. Here is an example demonstrating a situation which could be considered a violation of 045.
John goes to a local costume shop and rents a complete (sans sidearm) police uniform. He then proceeds down town and begins walking his “beat.” Several people approach him for directions or information. They refer to him as “officer” and the like and he responds “Yes, may I help you.” John doesn’t rob a bank, doesn’t steal a car, doesn’t shake anyone down for protection money – indeed, nothing of the sort. Has John committed a crime?
Yes, he has. He didn’t violate 040 but he does violate 045 because he has donned what appears to be a police uniform {045(1)(a)(i)} AND acted in such a way that a Reasonable Person would believe he is a law enforcement officer {045(1)(a)(ii)}.
Now we’ll change the scenario.
John goes to a local costume shop an rents a complete (sans sidearm) police uniform. He then proceeds to a costume party where he meets many friends who are also in costume of various kinds and types. Everyone knows John. They refer to him as “officer” and by various other names and titles. He “threatens” to arrest them. Everyone has a good time and enjoys the party. Has John committed a crime?
No, he has not. Again it is clear he didn’t violate 040 and, even though he donned the same uniform {045(1)(a)(i)} he has not violated 045 because he didn’t act in such a way that a Reasonable Person would believe he is a law enforcement officer {045(1)(a)(ii)}.
Now let’s bring this down to earth. What can a process server do to take on the accoutrements of law enforcement without violating 045?
1. May a process server carry a badge or shield?
Yes, so long as the badge does not purport to identify the server as a member of law enforcement. Carrying a badge with “Seattle Police Department” emblazoned across it is not a good idea even if no specific violation of {045(1)(a)(ii)} occurs. However, should real officers respond to the scene they will NOT take kindly to a process server carrying such a badge. Better that the badge clearly state “Process Server” across it. That said, you still don’t want to do anything to bring {045(1)(a)(ii)} into the picture.
2. May a process server wear a uniform?
Yes, and for exactly the same reasons.
3. May a process server mark his or her car with a star or other similar symbol?
Once again, Yes.
It will all come down to your intent and the way in which that intent plays out in a real life situation. It is very true that 90% of reality is appearance. If you decide to use a badge or similar device you must make sure you do not appear to violate {045(1)(a)(ii)}. If you “appeared” to intend something, even though you didn’t (in your own mind anyway), you may still violate the law.
Now let’s have a look at (1)(b).
| (b) |
Falsely assumes the identity of a veteran or active duty member of the armed forces of the United States with intent to defraud for the purpose of personal gain or to facilitate any unlawful activity. |
Should a process server do anything to give the impression he or she is a veteran or currently in the armed forces? No and for two reasons.
First – The citizens of this country are highly protective of their service men and women and of those who have served in our armed forces. From a political point of view this type of “disguise” will have a negative impact on the profession and the legal system in general.
Second – It might well be argued that the process server, using such a disguise, did so for personal gain (accomplish the service and receive the fee therefrom). For the reason stated just above, any use of this type of a disguise is likely to result in a strong police response and a serious effort on the part of a prosecutor to convict the process server.
Conclusion
Ask your self why you think it is necessary to carry a badge or other such device? Are you looking for a feeling of power and authority over others? Then this is the wrong line of work for you. Will it improve your success rate? Maybe, but there are no statistics on this one way or the other.
The line between valid and reasonable impersonation and criminal impersonation is not always bright. It is best to avoid any possible claim of criminal impersonation. Even if you are found not guilty of the charge it is expensive and time consuming to defend yourself in court.
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This is a rough diagram of a typical courtroom in the state of Washington. Courtrooms vary a great deal from city to city and county to county but they all have the same basic structure.
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