Vol. 18 No. 13- Civil Code Section 47.5 Is Alive

To: All Police Chiefs and Sheriffs

From: Martin J. Mayer

July 9, 2003

Two years ago, the California Court of Appeal held that Civil Code section 47.5(b) was unconstitutional; it allowed peace officers to sue a person civilly if that individual filed a complaint against the officer with his or her employer for “misconduct, criminal conduct, or incompetence,” if the complaint was knowingly false and made with “spite, hatred, or ill will.” The court ruled that the government may not discriminate based on content by banning only criticism of peace officers (Walker v. Kiousis, 93 Cal. App. 4th 1432) and no other public employees.

At virtually the same time, the Court of Appeal ruled that California Penal Code section 148.6,which makes it a crime to knowingly file a false accusation of misconduct against a peace officer, was also unconstitutional. Again, the court held that, by protecting only peace officers, the section selectively prohibits expression because of its content and, therefore, violates the First Amendment of the United States Constitution; (People v. Stanistreet, (2001) 93 Cal. App. 4th 469.)

The Stanistreet case was appealed to the California Supreme Court (this firm submitted an Amicus Curiae brief from the California State Sheriff’s Association, the California Police Chief’s Association, and the California Peace Officer’s Association, in support of Penal Code section 148.6), which reversed the Court of Appeal and found the code section to be lawful. (People v. Stanistreet, (2002) 29 Cal. 4th 497)

The Supreme Court concluded that Penal Code section 148.6 falls within three exceptions created by the United States Supreme Court in the case of R.A.V. v. City of St. Paul, Minnesota, 505 U.S. 377 (1992). The Supreme Court held that although certain categories of speech (e.g. obscenity, fighting words, and defamation) may be regulated, “the government may not regulatewithin these categories based on content, in other words, based on disapproval of the ideas expressed.”(Emphasis in original)

The California Supreme Court, in Stanistreet, concluded that the “potential harm” of knowingly making false complaints against a peace officer is greater than the potential harm of similar complaints against other public officials. The Court pointed out that law enforcement agencies are legally obligated to accept those complaints and expend public resources to investigate, retain and report the findings. The expenditure of those public resources constituted, what is known as, a “secondary effect” that further justified allowing Penal Code section 148.6, without regard to the content of the restriction.

The Kiousis case, however, was not appealed to the California Supreme Court, and theStanistreet decision expressly declined to render an opinion on the validity of Civil Code section 47.5. Therefore, as a result of the Kiousis decision, Civil Code section 47.5 was unconstitutional, despite the fact that the Supreme Court concluded that Penal Code section 148.6 was notunconstitutional.

Approximately one month ago, the California Court of Appeal issued an opinion in the case ofLoshonkohl v. Kinder, ____Cal. App. 4th ____, 2003 DAR 6056. The court revisited the constitutionality of Civil Code section 47.5 and ruled that the statute is constitutional because it falls within a category of permissible content discrimination. The Loshonkohl court pointed out that the Stanistreet decision, by the California Supreme Court, followed the Walker decision by the Court of Appeal, and that the R.A.V. exception found by the Supreme Court in the Stanistreetdecision “applies equally to section 47.5….”

The Loshonkohl court also pointed out that “the legislature is not suppressing all complaints of police misconduct, only knowingly false ones.” Furthermore, the requirement of scienter (intent) “protects witnesses who honestly misperceive facts. Those who knowingly give false information to police officers should be discouraged from doing so.”(Emphasis added)

The court stated that “section 47.5 provides an additional safeguard not included in Penal Code section 148.6 – the speech must be made with spite, hatred, or ill will. This extra requirement exceeds the standards enunciated by the United States Supreme Court for the recovery of defamation damages by public officials.”

How Does This Effect Your Agency?

Civil Code section 47.5 provides a legal cause of action to officers, but does not create any requirement or obligation on the agency’s part to initiate any action, unlike what occurred after theStanistreet decision. On December 9, 2002 we issued a Client Alert Memorandum (Vol. 17, No. 8) informing our clients that, as a result of the Stanistreet decision, the notice contained within Penal Code section 148.6 was still required to be included as part of all citizen complaint forms.

In this case, we do believe it is necessary to alert officers that, although the new decision allows them to sue pursuant to section 47.5, a decision on the constitutionality of section 47.5 has not yet been made by the California Supreme Court. It is conceivable, although unlikely, that the California Supreme Court could conclude that section 47.5 is unconstitutional, even though it already ruled that Penal Code section 148.6 is lawful. Therefore, we urge caution before an officer initiates a lawsuit pursuant to 47.5, based upon the Court of Appeal decision inLoshonkohl.