Metropolitan News-Enterprise


Friday, November 30, 2001


Page 1


C.A. Strikes Down Law Allowing Police to Sue Over False Complaints


By KENNETH OFGANG, Staff Writer/Appellate Courts


A California statute allowing a peace officer to sue for defamation if a citizen files a false complaint with the officer’s employer is unconstitutional, the Fourth District Court of Appeal ruled yesterday.

By carving out a unique exception to the litigation privilege, Civil Code Sec. 47.5 selectively punishes speech in violation of the First Amendment, Div. Two ruled.

The ruling affirms an Orange Superior Court judge’s order striking a California Highway Patrol officer’s suit against a convicted reckless driver. Judge Derek W. Hunt ruled that Officer Donovan Walker’s action was a strategic lawsuit against public participation barred by Code of Civil Procedure Sec. 425.16.

The appellate decision follows on the heels of rulings by U.S. District Judges Robert Timlin and Gary Taylor that the statute is unconstitutional, as well as decision by this district’s Div. Six striking down a companion statute.

Taylor’s ruling in Gritchen v. Collier was overturned by the Ninth U.S. Circuit Court of Appeals. But the panel left the constitutional issue unresolved, ruling that a federal civil rights action was not a proper vehicle to test the law’s validity because the officer’s threat to sue wasn’t made under color of state law.

Criminal Sanctions

Div. Six’s Oct. 31 decision in People v. Stanistreet struck down Penal Code Sec. 148.6, which makes the filing of a false complaint against an officer a crime. Timlin reached the same result in a case decided the day after his ruling on Sec. 47.5.

Yesterday’s ruling involved a suit by Walker against Bill John Kiousis, who was arrested by Walker and another officer in 1997, was charged with drunk driving, and eventually pled guilty to a “wet reckless.” After entering his plea, Kiousis filed a complaint with the CHP, accusing Kiousis of using profanity, threatening violence, and threatening that he would be jailed if he didn’t take a blood test.

The CHP, after reviewing a tape recording of the stop and arrest, found that Walker had done nothing wrong, after which he sued  Kiousis under Sec. 47.5. The other officer was disciplined for making inappropriate comments, although it did not appear that either officer had made the remarks attributed to Walker by Kiousis. 

In granting the anti-SLAPP motion, Hunt ruled that Walker’s suit involved the exercise of free speech or petition rights in connection with an official proceeding. Without determining the statute’s constitutionality, he held that the officer was unlikely to prevail because he couldn’t show actual damages.

Correct Result

Justice Betty Richli, writing for the Court of Appeal, said Hunt reached the correct result but under the wrong reasoning. Lack of actual damages, she explained, would not have been fatal to Walker’s claim because Kiousis’ allegations were libelous on their face and apparently false.

But the anti-SLAPP motion was properly granted, Richli concluded, because Sec. 47.5 is a content-based regulation of speech and does not serve a compelling governmental interest.

The law is content-based, the justice reasoned, because it eliminates protection for complaints about peace officers while retaining it for other forms of complaint against government employees or regulated professionals, including lawyers. 

It is also skewed in favor of peace  officers, she explained, because while an officer can sue the civilian complainant, the civilian cannot bring a defamation suit based on statements made by the officer in the course of the same proceeding.

“A law like section 47.5, which poses a risk of chilling citizens’ exercise of their right to complain of official misconduct, therefore must be justified by a governmental interest that is truly compelling,” the justice went on to say.

“Presumably, that is why, apparently, no state other than California has elected to single out defamation of peace officers for disparate treatment,” she added. Most states do not have an absolute privilege in connection with misconduct investigations, she explained, while those that do apply it to complaints of police misconduct.

“It would be hard to conclude that California’s interest in protecting officers from false complaints is so compelling as to justify engaging in ‘presumptively invalid’  content-based speech discrimination…when no other state apparently has found it necessary to do so,” Richli wrote.

The case is Walker v. Kiousis, 01 S.O.S. 5675.


Copyright 2001, Metropolitan News Company