Vol. 20 No. 18 Chaker v. Crogan: the federal court of appeals (ninth circuit) holds penal code section 148.6 unconstitutional

Chaker v. Crogan
The Federal Court of Appeals (Ninth Circuit) Holds Penal Code Section 148.6 Unconstitutional

November 9, 2005

The Ninth Circuit Court of Appeal has just issued an opinion in Chaker v. Crogan , Case No. 03-56885, that California Penal Code Section 148.6, knowingly filing a false complaint of peace officer misconduct, is unconstitutional.


Darren David Chaker field a habeas corpus petition in federal court challenging his conviction by the San Diego District Attorney’s Office for a violation of California Penal Code Section 148.6. He challenged the Penal Code provision as an unconstitutional violation of his First Amendment rights. The District Court denied Chaker’s petition and he appealed to the Ninth Circuit Court of Appeals. Jones & Mayer, through Michael R. Capizzi and Krista MacNevin Jee, submitted a written amicus brief and orally argued the issue on behalf of the California State Sheriff’s Association, the California Police Chief’s Association and the California Peace Officers’Association.


El Cajon police officers arrested Chaker on April 9, 1996 for obtaining his car from a mechanic without making payment for services rendered. Chaker later filed a claim for damages with the City of El Cajon and sent a letter to the Police Department’s Internal Affairs Division under penalty of perjury, claiming that one of the arresting officers caused injury to Chaker during the arrest. The San Diego District Attorney’s Office charged Chaker with a misdemeanor violation of P.C. Section 148.6. The officers testified that no excessive force was used against Chaker during his arrest or transportation. A witness at the time of Chaker’s arrest confirmed that the arrest appeared routine. Chaker was convicted of violating P.C. Section 148.6 on February 22, 1999. He filed several appeals and petitions for habeas corpus in various State courts (all of which were denied), as well as the federal habeas petition which formed the basis for the Ninth Circuit opinion discussed here. Chaker received credit for time served and was sentenced to public service and three years probation. By the time of the Ninth Circuit appeal briefing, Chaker had already completed his probation.


The Court first made several preliminary findings that Chaker’s case was properly before the Court: finding that it did not lack jurisdiction simply because Chaker was no longer on probation, since he was on probation at the time of the filing of his habeas petition; determining that the case was not moot because there was an on-going significant collateral consequence to Chaker from the criminal conviction; summarily dismissing the claim that Chaker did not have standing to challenge the constitutionality of his conviction; and finding that the statute of limitations did not bar Chaker’s petition because the defense had been waived by not being raised in the District Court.

On the main issue of the constitutionality of P.C. Section 148.6, the Court found that the Section is an unconstitutional violation of the First Amendment. The Court considered and made note of the California Supreme Court decision construing, and upholding as constitutional , Section 148.6 in People v. Stanistreet , 29 Cal. 4th 497, 502 (2002).1 The Chaker Court acknowledged the California Supreme Court’s finding that the protection afforded to peace officers, and not other individuals or public employees, was part of a unique statutory system of required investigation and record-keeping as to complaints of peace officer misconduct. The Court still found Section 148.6 unconstitutional, relying on the principle that the government is not permitted to regulate speech based on viewpoint. Section 148.6, it held, impermissibly distinguishes between a knowingly false statement against a peace officer and a knowingly false statement in favor of a peace officer, the latter being equally at fault as the former for wasting public resources by interfering with an official investigation.


The decision in Chaker is not yet final. It may be several months, or much longer, before the decision does become final. The District Attorney is currently seeking a rehearing en banc, which, if granted, would allow the entire Ninth Circuit panel of judges to rehear the matter and, hopefully, to overturn the three judge panel’s recently issued decision that is clearly erroneous. We will update you as soon as there is any ruling on the request for rehearing. If rehearing is not granted, or is unsuccessful, we will certainly be urging the District Attorney to appeal to the United States Supreme Court and will update you on those activities, as well as any opportunity we may have to continue our amicus support on this important issue. Until the opinion in Chakeris final, Section 148.6 is still constitutional under the California Supreme Court decision in People v. Stanistreet , referenced above.

As always, we urge that, prior to taking any legal action, you confer with your departments’ attorney for legal advice and guidance. If you wish to discuss this matter in greater detail, please don’t hesitate to contact my office by phone (714 – 446-1400) or e-mail (mjm@jones-mayer.com).

1 Martin J. Mayer and Michael R. Capizzi , of Jones & Mayer participated as amicus curiae on this case as well, on behalf of CSSA, CPCA and CPOA.