Sunday, November 06, 2005

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


Anonymous Anonymous said...

So many in law enforcement laughed at the 9th Circuits decision and think it was improper and couldn't wait until the U.S. Supreme Court would reverse yet another flawed decision of the 9th Circuit.

On May 15, 2006, the U.S. Supreme Court DENIED the Attorney General's cert request to hear the case. Chaker v. Crogan is now FINAL! The statute is in the dumpster!

I know, to the uneducated the decision seems like the police don't get a fair deal. However, the reasoning behind the decision is not flawed--as the U.S. Supreme Court would not hesitate to have stepped in. The statute was very explicit and lopsided to chill one side of speech while allowing the free flow of false complaints on the other.

Further, of the 28 judges on the 9th Circuit, not ONE wanted rehear the case when the State filed a rehearing request.

In lieu of the State using the last few months to amend the law so a draft could be submitted to the legistlature, the State decided to challenge me again. So, I hired an attorney who worked for two justices (Scalia & Brennan) on the Supreme Court from one of the largest firms in the U.S.

Now, in lieu of having other court's look at the decision as a "another crazy opinion" of the 9th, the case has far more precedent setting value and I thank the State for challenging me. I am sure when this case was first filed in 1997, prosecutors thought it would be another little case that plea's out. WRONG!! I made a federal case out of it and won.

Remember, adversity builds character. Absent that, I respect all of your views for who am I to censor speech if I am an advocate of it.

One of dozens of media coverage:

No. 03-56885 (11/03/05)
Before Circuit Judges Hug Jr., Pregerson and Berzon$file/0356885.pdf?openelement


Opinion (Pregerson): Darren Chaker was convicted for filing a knowingly
false complaint of peace officer misconduct in violation of California
Penal Code (CPC) section 148.6(a)(1). Chaker argued that this section
of the CPC was unconstitutional because it violates the First Amendment.
The Ninth Circuit agreed, commenting that discrimination on the basis of a
speakers viewpoint violates the First Amendment. The CPC section in
question was discriminatory because it only made illegal knowingly false
speech critical of police, while knowingly false speech supportive of
police went unpunished. On those grounds, the habeas petition was

Friday, May 19, 2006 2:27:00 PM  
Anonymous Anonymous said...

This was great work and I thank GOD that you followed through with your case. I love when DA's think they can fry the little person and suddenly that little person makes it a federal case and just sticks it to them. Cops think they are the secret police and try to hide behind the badge when in fact they are public servants and need to be held accountable.

Thursday, February 19, 2009 11:30:00 AM  

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