Case o' The Week: 1st Amendment Movers and Chakers

A great panel finds a California statute unconstitutional because is criminalizes false complaints – but not false praise – of cops. Chaker v. Crogan, __ F.3d. __, No. 03-56885 (9th Cir. Nov. 3, 2005), available here. Ironically, however, Chaker may undermine the defense use of these complaints for impeachment.

Players: Hug, Pregerson and Berzon – a great panel.

Facts: “California Penal Code section 148.6 makes it a misdemeanor to “file [ ] any allegation of misconduct against any peace officer . . . knowing the allegation to be false.” Slip Op. at 15107. A citizen made complaints against a cop and was later prosecuted and convicted for false accusations. Id. at 1500-01. He then went through a tortured set of habeas proceedings before finally arriving at the Ninth.

Issue(s): Does the statute violate the First Amendment because it only penalizes false criticisms, but not praise, of California Police Officers? Id. at 15111. Put differently, “we must determine whether California Penal Code section 148.6 violates the First Amendment’s core requirement of viewpoint neutrality even though the statute regulates otherwise unprotected speech.” 15115-6.

Held: Yes, unconstitutional. “The imbalance generated by section 148.6—i.e., only individuals critical of peace officers are subject to liability and not those who are supportive—therefore turns the First Amendment on its head.” Id. at 15118. “Because section 148.6 targets only knowingly false speech critical of peace officer conduct during the course of a complaint investigation, we conclude that the statute impermissibly regulates speech on the basis of a speaker’s viewpoint.” Id. at 15119.

Of Note: Ironically, this ACLU victory may complicate matters for criminal defense. Defense counsel regularly tout the fact that police complaints are filed under the threat of criminal prosecution to illustrate their reliability. (This argument is directed particularly to district courts that let in all 404(b) evidence against our clients, but severely limit the defense use of police complaints). If it is no longer illegal to file a false complaint, our “reliability” argument is undermined. Notably, the Ninth gives guidance on how to cure the statute: “We note that any impermissible viewpoint-based bias present in the complaint investigation process is easily cured: California can make all parties to an investigation of peace officer misconduct subject to sanction for knowingly making false statements. Otherwise, the selective sanction imposed by section 148.6 is impermissibly viewpoint-based.” Id. at 15120.

How to Use: The broader use of Chakar is to explain the legislative history and mechanics of the California citizen complaint process in our Rule 17(c) subpoenas and when advocating the use of citizen complaints for impeachment. Chakar is one of the few federal opinions to discuss this procedure in detail. This is odd, because federal AUSAs rely so heavily on cheap state cases to bolster their stats (e.g., “Trigger Lock” prosecutions). In all of these glorified “state” federal cases, citizen complaints against state cops is a key impeachment issue. We in the federal defense bar need to work more closely with our state counterparts to learn the details of our district’s local complaint process – often, these citizen complaints can make the defense case when the prosecution hinges on cop credibility.

For Further Reading: As the Chakar opinion explains, every California jurisdiction must have a procedure to intake and investigate citizen complaints against its officers. Id. at 15109-10. “Specifically, California Penal Code section 832.5 provides that “[e]ach department or agency in this state that employs peace officers shall establish a procedure to investigate complaints by members of the public . . . and shall make a written description of the procedure available to the public.” Id. at 15110. In San Francisco, this procedure is handled by the Office of Citizen Complaints. See link here. OCC employees are an invaluable resource for explaining the intricacies of the complaint process, and their insights can make for much more potent Rule 17(c) subpoena requests. Other agencies also maintain resources on police brutality and complaints. See, e.g., HRW Report here. Helping a client make a complaint against a dirty cop helps to document abuse and provides fodder for future impeachment - http://www.occ.complaint.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at www.ndcalfpd.org