Metropolitan News-Enterprise


Thursday, June 14, 2001


Page 1


Court Allows Officer to Sue Citizen Over Alleged False Complaint


By KENNETH OFGANG, Staff Writer/Appellate Courts


A Long Beach police officer who claims that a motorist he stopped for speeding falsely accused him of having liquor on his breath can proceed with a defamation lawsuit under a special California statute, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The panel overturned a ruling by U.S. District Judge Gary Taylor of the Central District of California that Officer Gordon Collier’s threatened suit against Myron S. Gritchen, growing out of a complaint Gritchen filed with the Long Beach Police Department, is barred by the First Amendment.

But Judge Pamela Ann Rymer, writing for the appellate court, skirted the constitutional issue. She instead concluded that the case was not properly before the federal courts.

Gritchen, represented by Dan Tokaji of the ACLU, had urged the court to uphold Taylor’s ruling that Civil Code Sec. 47.5 is unconstitutional.

The statue provides that:

“Notwithstanding Section 47 [the official proceedings privilege], a peace officer may bring an action for defamation against an individual who has filed a complaint with that officer’s employing agency alleging misconduct, criminal conduct, or incompetence, if that complaint is false, the complaint was made with knowledge that it was false and that it was made with spite, hatred, or ill will.  Knowledge that the complaint was false may be proved by a showing that the complainant had no reasonable grounds to believe the statement was true and that the complainant exhibited a reckless disregard for ascertaining the truth.”

Payment Demanded

Collier, after being cleared by his department, cited the statute in a letter to Gritchen demanding payment of a $4,500 settlement in lieu of a small claims action. But Gritchen contacted the ACLU, which sought to preempt the small claims suit by filing a declaratory action in federal court.

Rymer, however, concluded that Gritchen could not sue for a civil rights violation under 42 U.S.C. Sec. 1983. The threat to sue was not made under color of state law, an essential element of a Sec. 1983 action, the appellate jurist concluded.

“Just because Collier is a police officer does not mean that everything he does is state action,” Rymer wrote, adding:

“We understand the district court’s view that the traffic stop, followed by the citizen complaint, and ending with the threats of suit are ‘unavoidably tied’ to Collier’s position as a police officer, but we disagree that this answers the question of whether Collier’s threatened suit is part of his public employer’s work, or a private pursuit.”

Threatening or bringing lawsuits, Rymer explained, isn’t part of Collier’s job. There’s no evidence that the city encouraged him to sue, and the city would have no right to compel him to bring an action or deter him from doing so, she said.

Disappointment Expressed

Tokaji said he was disappointed in the ruling, saying it would make it harder for other citizens to bring constitutional issues before federal courts. A petition for en banc review is possible, he said.

He emphasized that the decision “doesn’t touch” the conclusions by Taylor, and by U.S. District Judge Robert Timlin in another case now on appeal to the Ninth Circuit, that Sec. 47.5 is unconstitutional because it treats complaints against police officers in a different manner than those against other public officers.

But Larry Roberts, who argued Collier’s appeal, said the ruling was “absolutely delightful,” even if it was “less than ideal” in the sense that it didn’t rule on his contention that the law is constitutional.

Roberts argued that the statute is consistent with the First Amendment because it applies only to statements that are willfully and recklessly false, and that police officers need special protections from defamation beyond those available to other public servants.

The case is Gritchen v. Collier, 99-56940.


Copyright 2001, Metropolitan News Company