CLIENT ALERT MEMORANDUM
December 3, 2001
To: All Police Chiefs and Sheriffs
From: Martin J. Mayer
LEGAL PROTECTIONS AGAINST FALSE CITIZEN COMPLAINTS DECLARED UNCONSTITUTIONAL
Within a four-week period of time the California Court of Appeal issued opinions in two cases declaring that Civil Code section 47.5 and Penal Code section 148.6 were unconstitutional “content based” regulation of speech.
PEOPLE V. STANISTREET
On October 30, 2001 the Second District California Court of Appeal decided the case of People v. Stanistreet, 1001 WL 1486744, Cal. App. 4th , holding that Penal Code section 148.6, which makes it a crime to knowingly make a false accusation of misconduct against a peace officer, selectively prohibits expression because of its content and, therefore, violates the First Amendment of the United States Constitution. The court stated that “the First Amendment generally prevents government from proscribing speech … because of disapproval of the ideas expressed …. ” The court goes on to state that section 148.6 ” … makes it unlawful to knowingly defame a select class, police officers. Section 148.6 … is solely directed at those who seek to harm a specific class of individuals. Other governmental agents and employees are not so protected by the law. Section 148.6, therefore, discriminates because of idea or viewpoint. It runs afoul of the First Amendment because its treatment of defamation is not neutral.”
The court recognized the purpose behind the creation of section 148.6 and stated that “the Legislature noted that since the Rodney King incident in March, 1991, law enforcement agencies throughout the state have revised their citizen complaint procedures to promote greater accountability on the part of their line officers. However, a glaringly negative side effect which has resulted (was) the willingness on the part of many of our less ethical citizens to maliciously file false allegations of misconduct against officers in an effort to punish them for simply doing their jobs.” As a result, the court points out ” … the Legislature enacted section 148.6, in an attempt to curb a perceived rising tide of knowingly false citizens’ complaints of misconduct by officers performing their duties.”
The court also recognized that “a false complaint potentially impairs the ability of an officer to carry out assigned tasks.” Nonetheless, “the right of citizens to petition their government must not be chilled merely because it is discommoding to public employees.”
The court then focused on the authority of peace officers by stating that “law enforcement officers carry upon their shoulders the cloak of authority to enforce the laws of the state. With that power goes the inconvenience of being subjected to the “slings and arrows” of some members of the public. While police, no less than anyone else, may resent having obscene words and gestures directed at them, they may not exercise the awesome power at their disposal to punish individuals for conduct that is not merely lawful, but protected by the First Amendment.”
As a result, the court ruled that section 148.6 violates the First Amendment of the United States Constitution and is, therefore, invalid.
WALKER V. KIOUSIS
Just four weeks later, on November 28, 2001, the Fourth Appellate District of the California Court of Appeal ruled in the case of Walker v. Kiousis, 2001 DAR 12468, Cal.App. 4th , that Civil Code section 47.5, which permits peace officers to bring defamation suits against persons who filed knowingly false complaints, is also unconstitutional “content based” regulation of speech. In theKiousis case, two CHP officers were accused of having made threats and using defamatory and derogatory language when arresting Kiousis for allegedly driving under the influence. As a result of the officers having tape recorded the incident (once again reinforcing why it is so important and beneficial to law enforcement officers to carry and utilize microcassette tape recorders when making citizen contacts), it was proved that Kiousis lied and had filed a false complaint. As a result Officer Walker sued Kiousis pursuant to Civil Code section 47.5 which led to this court’s reviewing that section from the perspective of its constitutionality.
The court stated that “we first note that, although Kiousis contends only that the statute violates the Federal Constitution, the analysis would be the same under the California Constitution.” (As a result, the decision in Kiousis is binding upon California from both perspectives.) Civil Code section 47 provides that a statement made in any “official proceeding authorized by law” is privileged and that an investigation of a citizen’s complaint against a law enforcement officer is an official proceeding authorized and, in fact, required by Penal Code section 832.5. The court stated that “a communication to an official agency which is designed to prompt action is considered a part of an official proceeding for purposes of section 47. Therefore, the privilege applied to Kiousis’ complaint.”
The court points that ” … section 47.5 restricts defamatory speech against one group of public officials, peace officers, while leaving intact the privilege under section 47 for defamatory speech against all other public officials. Whether the speech is actionable depends solely on its content. Speech which defames public officials other than peace officers is not actionable regardless of whether it is made with knowledge of falsity, malice, or ill will.”
The court states that accusing political officer holders, physicians, attorneys, or other public officials of misconduct, up to and including the commission of crimes, is absolutely privileged under section 47. The court points out that ” … the statute makes it actionable to falsely accuse a peace officer not only of “criminal conduct,” but also of ordinary “misconduct,” or even of “incompetence.” It does so while leaving intact the privilege protecting any defamation of a person in an official proceeding other than a peace officer. In other words, falsely accusing a peace officer of “incompetence” is actionable under section 47.5, but falsely accusing a political office holder of embezzling money from the government or spying for a foreign government is privileged under section 47.” (Emphasis in original.)
Once again, the court recognizes the reasoning behind section 47.5 by stating that “the obvious state interest underlying section 47.5 is the deterrence of false complaints against law enforcement officers which might inhibit them in the vigorous performance of their duties. While that interest has been recognized as an important one, it has not been thought to outweigh the competing interest in free airing of claims of possible police misconduct.”
In virtually the same way as the court stated in People v. Stanistreet, the Kiousis court stated that “we agree with plaintiff that it distressing and demoralizing for police officers to be subjected to false accusations of brutality, but that may be one of the crosses a police officer must bear, in light of the power and deadly force the state places in his hands.”
POSSIBLE SOLUTION
The court does go on to point out that the Legislature could rectify this situation. “The state might also do as most other states do and simply decline to provide an absolute privilege for statements made during a misconduct investigation, regardless of who makes them or about whom they are made.” As a result, false statements made about officers would then be subject to the same potential liability as false statements made against anyone else. However, until and unless the state modifies the absolute privilege currently in existence for statements made during an official proceeding, section 47.5 is unconstitutional.
HOW THIS AFFECTS YOUR AGENCY
It would appear that unless each of these cases is appealed to, and accepted by, the California Supreme Court, these decisions govern the law in the state of California. As such, it would appear that all law enforcement agencies would be required to remove the mandated language from Penal Code section 148.6 from their citizen complaint forms which are required by law. Additionally, those jurisdictions which refer to Civil Code section 47.5 in their citizen complaint form will need to also remove or redact that statement as well.
It might also be appropriate at this time for law enforcement agencies to seriously consider petitioning the State Legislature to modify Civil Code section 47 and permit only a qualified immunity from civil liability for statements made during official proceedings. Immunity would be lost if it could be shown that the statement was made knowing that it was false as opposed to a statement made in good faith which turned out to be in error. In order to accomplish this task, however, as pointed out in both the Stanistreet and Kiousis decisions, any modification of Civil Code section 47 would have to apply to all public officials, not just police officers.
As always, before undertaking any legal action we urge that you confer with your department’s legal advisor to receive advice and guidance
As always we urge that before you take any legal action you confer with your designated legal advisor. If you wish to discuss the comments set forth above, please feel free to contact Martin Mayer at (714) 446-1400 or MJM@Jones-Mayer.com.
[The Law Offices of Jones & Mayer located in Fullerton, California focus its practice on representing the interests of public entities as its City Attorney, in labor negotiations, in defending tort litigation and civil rights litigation. Martin Mayer focuses his practice in the area of representing cities, counties and the State on matters arising out of their respective law enforcement agencies.]
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