Friday, November 4, 2005
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Ninth Circuit Rules:
Statute Criminalizing False Complaints Against Police Is Invalid
From Staff and Wire Service Reports
A California statute making it a crime to file a knowingly false complaint against a peace officer unconstitutionally restricts free speech, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
While the speech criminalized by Penal Code Sec. 148.6 is not constitutionally protected, Judge Harry Pregerson said, the statute violates the First Amendment by distinguishing between speech critical of an officer and speech supporting the officer’s conduct.
“Because section 148.6 targets only knowingly false speech critical of peace officer conduct during the course of a complaint investigation,” Pregerson wrote, “we conclude that the statute impermissibly regulates speech on the basis of a speaker’s viewpoint.”
1995 Law
Sec. 148.6 was enacted in 1995, partly in response to state court rulings rejecting attempts to prosecute false complaints against officers under Sec. 148.5, which makes it a misdemeanor to make a knowingly false report of any criminal activity. In Pena v. Municipal Court, 96 Cal. App. 3d 77 (1979), the Court of Appeal said such prosecutions would have a chilling effect on police misconduct reporting.
The legislative action also addressed a perceived increase in false complaints in the wake of the Rodney King beating.
The state Supreme Court rejected a First Amendment challenge to the law three years ago in People v. Stanistreet, 29 Cal. 4th 497. But Pregerson noted that a federal district judge found the statute unconstitutional last year, and that a federal district judge in Nevada reached the same conclusion about that state’s similar law in 2002.
‘Allegation of Misconduct’
Sec. 148.6 applies to anyone who “files any allegation of misconduct” against a peace officer. The section provides that agencies accepting such complaints must require the complainant to sign an advisory statement warning of the possibility of prosecution.
Darren David Chaker, on whose habeas petition the court ruled yesterday, never signed the advisory statement. He made his complaint by letter, alleging that an El Cajon police officer injured him in the course of making an arrest for theft of service after Chaker retrieved his car from a mechanic without paying for a repair.
He was convicted by a jury of violating Sec. 148.6 and sentenced to two days of custody with credit for time served, fifteen days of public service, and three years of probation. He was also ordered to pay a fine and restitution totaling $1,142.
His state habeas petitions were rejected, and U.S. District Judge Barry T. Moskowitz of the Southern District of California denied his federal petition in 2002, but Moskowitz issued Chaker a certificate of appealability on his First Amendment claim.
Pregerson said Moskowitz should have granted the petition. He rejected the state’s contentions that the federal court lacked jurisdiction because Chaker was not in custody and that the petition was moot.
The custody requirement was satisfied by the fact Chaker was still on probation when his federal habeas petition was filed, Pregerson said, while the fact that his Sec. 148.6 conviction could subject him to harsher punishment for any future crime prevented mootness.
While Chaker’s claim could have been barred by the statute of limitations or procedurally defaulted, Pregerson said, the state waived those defenses by failing to raise them in district court.
AEDPA Standard
The judge conceded that under the Antiterrorism and Effective Death Penalty Act, a federal habeas court normally reviews a state court’s habeas decision to determine whether it was “contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States.” But that standard did not apply in Chaker’s case, he said, since the California Supreme Court denied his petition without an opinion and did not address his First Amendment claim.
The California statute, Pregerson said, was more like the Minnesota law invalidated by the U.S. Supreme Court in R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) than like the statute upheld by the high court in Virginia v. Black, 538 U.S. 343 (2003). Both statutes, he noted, criminalized cross burning, but the Minnesota law applied only to acts performed knowing they would arouse “anger, alarm or resentment in others on the basis of race, color, creed, religion or gender,” while the Virginia statute applied to any cross burning done with the intent to intimidate.
The court in Black, Pregerson said, “distinguished its decision in R.A.V., and explained that the Virginia statute was directed at all cross burning done with the intent to intimidate.” Since the Virginia statute did not single out intimidation based on a victim’s race, gender, or religion, it was not unconstitutionally directed at speech on a particular disfavored topic, the judge said.
While the California statute imposed criminal liability on Chaker, Pregerson noted, neither the officer being investigated nor any witnesses supporting his version of events faced similar risks if found to have provided knowingly false information.
Citing language from Justice Antonin Scalia’s opinion for the U.S. high court in R.A.V., Pregerson declared:
“Only knowingly false speech critical of peace officer conduct is subject to prosecution under section 148.6. Knowingly false speech supportive of peace officer conduct is not similarly subject to prosecution. California ‘has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules.’”
The statute’s “under-inclusiveness” was “particularly troublesome,” the judge explained, since the result was to target “criticism of government officials — peace officers.”
He noted that at oral argument lawyers for the state cited several statutes criminalizing lying by police officers in official reports. But there was no showing that those laws could apply to statements made in the course of an investigation into police misconduct, Pregerson observed.
He pointed out in a footnote that both the state courts and the District Court had rejected Chaker’s argument that signing the advisory statement was an element of the crime of which he was convicted.
“Accordingly, we presume for the purposes of this appeal that signing the advisory was not an essential element of the offense,” Pregerson explained.
The American Civil Liberties Union hailed the decision.
“To us, it was a clear example to cut off criticism of the government,” ACLU attorney Alan Schlosser said.
Michael Schwartz, a Ventura County prosecutor who on behalf of the California District Attorneys Association urged the appellate court to uphold Chaker’s conviction, said he was disappointed with the outcome.
“It’s a controversial issue that people disagree about,” he said. He said the statute in question is only used sparingly.
San Diego County prosecutors said they were considering asking the appeals court to reconsider or asking the U.S. Supreme Court to review the decision.
In a press release, the Sacramento-based Criminal Justice Legal Foundation, which filed an amicus brief in the case, said Chaker has “made a hobby of suing law enforcement agencies in the San Diego area.”
CJLF attorney Charles Hobson declared in a statement:
“The Ninth Circuit’s ruling ignores the difference between complaints against police, and statements by the police and their supporters. Complaints against officers start a legally mandated investigation of the officer, while statements supporting the officer do not have a remotely similar influence on the process. By forcing California to treat different types of statements similarly, the Ninth Circuit has given Californians a license to file false complaints against the police.”
The 2002 California Supreme Court ruling upholding the law came in the case of two Oxnard residents who complained that an Oxnard police officer exposed himself to about 50 teenagers at an awards banquet. The Oxnard Police Department said it investigated the couple’s allegations and could not corroborate them, so Ventura County prosecutors charged Barbara Atkinson and Shaun Stanistreet for filing a false complaint.
The state high court’s unanimous decision came in opinion authored by Justice Ming Chin and upheld the 30-day sentences given to the two, who vigorously maintained the allegations against the officer were true and were being covered up.
Chin’s opinion noted that the potential harm from false reports could damage an officer’s credibility and even waste police resources investigating the complaints. But Pregerson said the state’s rationale for the law was “called into question by its choice to prohibit only the knowingly false speech of those citizens who complain of peace officer conduct.”
The constitutional defect in the law is “easily cured,” Pregerson averred.
“California can make all parties to an investigation of peace officer misconduct subject to sanction for knowingly making false statements,” he wrote. “Otherwise, the selective sanction imposed by section 148.6 is impermissibly viewpoint-based.”
Pregerson’s opinion was joined by Judge Marsha S. Berzon and Senior Judge Procter Hug Jr.
The case is Chaker v. Crogan, 03-56885
Copyright 2005, Metropolitan News Company