First Amendment Freedom Of Speech And Expression: Ninth Circuit Holds That California Penal Code Section 148.6 Violates The First Amendment In Chaker V. Crogan
|Law Clerk to the Honorable Patricia A. Coan, U.S. District Court for the District of Colorado
Government attempts to regulate expression often require balancing competing interests: the government`s right to regulate categories of expression consistent with the U.S. Constitution,1 and the First Amendment`s prohibition of laws abridging freedom of speech.2 The U.S. Supreme Court established the First Amendment`s application to proscribable classes of speech in R.A.V. v. City of St. Paul.3 In 2005, the U.S. Court of Appeals for the Ninth Circuit applied the modern R.A.V. doctrine in Chaker v. Crogan-a unanimous decision loudly hailed by civil liberties groups and largely opposed by state prosecutors and law enforcement groups.4
In Chaker, the Ninth Circuit concluded that California Penal Code section 148.6, making it a misdemeanor to "file[ ] any allegation of misconduct against any peace office... knowing the allegation to be false,"5 violates the First Amendment.6 Section 148.6 (a)(1) is a general law against filing false allegations against police officers and provides that "[e]very person who files any allegation of misconduct against any peace office... knowing the allegation to be false, is guilty of a Page 426 misdemeanor."7 In addition, section 148.6 (a)(2) requires the complainant to read and sign the following advisory, printed in boldface type:
IT IS AGAINST THE LAW TO MAKE A COMPLAINT THAT YOU KNOW TO BE FALSE. IF YOU MAKE A COMPLAINT AGAINST AN OFFICER KNOWING THAT IT IS FALSE, YOU CAN BE PROSECUTED ON A MISDEMEANOR CHARGE.
I have read and understood the above statement.8
Chaker overturned a 2002 California Supreme Court decision which held that section 148.6 does not violate free speech rights embodied in the First Amendment and that statutory provisions governing offenses of knowingly filing a false charge of police misconduct are not facially overbroad.9 That ruling stemmed from the 1998 convictions of Oxnard residents Shaun Stanistreet and Barbara Atkinson for filing a false accusation that an Oxnard police officer engaged in lewd conduct in front of some fifty teenagers at a Police Athletics League awards banquet.10 The charges proved to be false. A jury found Atkinson and Stanistreet guilty of violating section 148.5, filing a false report of a criminal offense, and section 148.6 (a)(1), knowingly filing a false charge of police misconduct. On appeal to the Appellate Division of the Superior Court, Atkinson and Stanistreet asserted that section 148.5 was inapplicable and section 148.6 was facially unconstitutional. In reversing the Appellate Division, the California Supreme Court determined that section 148.6 "proscribes only constitutionally unprotected speech."11 Likewise, the court found that section 148.6 does not create a general effect of chilling citizens` willingness to lodge complaints about possible misconduct by peace officers, and therefore concluded that the Page 427 chilling effect argument had nothing to do with whether section 148.6 is invalid.12
The origins of section 148.6 of the California Penal Code can be traced to the Rodney King riot in March 1991, after which law enforcement agencies throughout the state revised their citizen complaint procedures to promote greater accountability on the part of their line officers. In 1995, the California legislature approved legislation making it a crime to knowingly file a false citizen complaint under California Penal Code section 148.6.13 Penal Code section 148.6 created an exception to the rule protecting citizen complainants from criminal defamation prosecutions. Through enactment of Penal Code section 148.6, California law treated one subcategory of citizen complaints against public officials-complaints against peace officers-differently from all others.
Along with this good intent, there is a negative side effect that has resulted in "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."14 For officers, these complaints might become a permanent part of their personnel files regardless of the outcome of the administrative inquiries or investigations. Accordingly, these officers may find they have little recourse against the complainants.
Chaker was originally arrested for "theft of services" for retrieving his car from a mechanic without paying-charges that were later dropped.15 Several months later, Chaker complained that the arresting officer, without provocation, hit him in the ribs, twisted his wrist, and failed to secure Chaker in the police vehicle with a seat belt so that Chaker struck his head during sudden stops.16 Chaker also sent a letter to the El Cajon Police Department Internal Affairs Division making the Page 428 same complaint and alleging that he was strip-searched.17 Chaker signed the letter under penalty of perjury.18 Eleven El Cajon police investigated and found the complaint unwarranted.19
Months after the disputed arrests, prosecutors charged Chaker with knowingly filing a false complaint. Authorities charged Chaker for allegedly making up the story, and the complaint charged Chaker with the misdemeanor offense of filing a knowingly false allegation of peace officer misconduct in violation of California Penal Code section 148.6 (a)(1).20 Chaker was convicted by a jury in 1999 after a hung jury in the initial trial. He was sentenced to two days in custody, fifteen days of community service and three years of probation, and was further ordered to pay a fine and restitution totaling $1142.21
After the conviction, Chaker appealed and lost, then filed a series of habeas corpus petitions in the California Supreme Court.22 In his third state habeas petition, Chaker raised for the first time a First Amendment challenge to section 148.6.23 This petition was also denied, and the order denying the petition cited California cases concerning procedural default.24 After the California Supreme Court rejected Chaker`s First Amendment challenge, he raised the claim in his amended federal habeas petition.25 Ultimately, the federal district court denied Chaker`s petition and issued a limited certificate of appealability on the First Amendment claim.26 The Ninth Circuit reversed the district court decision, granted Chaker`s habeas petition, and remanded for issuance of the writ.27
Writing for the three-judge panel, Circuit Judge Harry Pregerson began his formal analysis by dividing his discussion between the procedural issues and standard of review, and a substantive examination of California Penal Code section 148.6 and First Amendment jurisprudence.28 After finding that appropriate jurisdiction existed and that Page 429 there was a live controversy, the court referred to the leading cases establishing the First Amendment`s application to proscribable classes of speech: R.A.V.29 and Virginia v. Black.30
Judge Pregerson wrote that precedent for his ruling stemmed from R.A.V., which struck down an ordinance that banned certain symbolic conduct such as cross burning.31 The local ordinance banned conduct that would knowingly "arouse[ ] anger, alarm or resentment in others on the basis of race, color, creed, religion or gender."32 He noted that Chaker`s argument conceded that knowingly false speech about a public official is generally unprotected by the First Amendment, but nevertheless contended that the statute impermissibly singles out for special criminal sanctions speech critical of peace officers.
The court was persuaded. In R.A.V. the Supreme Court had addressed the First Amendment implications of a particular type of otherwise proscribable speech being criminalized under some, but not all, circumstances. The petitioner in R.A.V. was charged with the crime of burning a cross.33 The Supreme Court found that the ordinance discriminated on the basis of content by "impos[ing] special prohibitions on those speakers who express views on disfavored subjects,"34 and that such content-based distinctions violate the First Amendment because "[t]he government may not regulate use based on hostility-or favoritism-towards the underlying message expressed."35
Although the decision in Garrison v. Louisiana36 made clear that "the knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection,"37 the Page 430 Court in R.A.V. stated for the first time that such statements "must be taken in context," and
[w]hat they mean is that these areas of speech can, consistently with the First Amendment, be regulated because of their constitutionally proscribable content (obscenity, defamation, etc.)-not that they are categories of speech entirely invisible to the Constitution, so that they may be made the vehicles for content discrimination unrelated to their distinctively proscribable content. Thus, the government may proscribe libel; but it may not make the further content discrimination of proscribing only libel critical of the government.38
The R.A.V. Court held that content-based or viewpoint-based discrimination within a proscribable area of speech must fit within one of three exceptions: (1) "When the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable, no significant danger of idea or viewpoint discrimination exists";39 (2) the "subclass of proscribable speech... happens to be associated with particular secondary effects` of the speech, so that the regulation is justified without reference to the content of th... speech`";40 and (3) a catchall category where "to validate such selectivity (where totally proscribable speech is at issue)...
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