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CHAKER v. CROGAN
United States Supreme Court No. 03-56885
ORAL ARGUMENT DATE: December 6, 2004
Interest of amicus curiae
Summary of facts and case
Summary of argumentI. The District Court lacked subject-matter jurisdiction over the § 148.6 claim, because Petitioner was not in custody when he filed the amendment raising it, and the amendment does not relate back
A. Custody
B. New claims and relation backII. Penal Code section 148.6 is content neutral
Even if Penal Code § 148.6 is not content neutral, it is an acceptable regulation of content
INTEREST OF AMICUS CURIAEThe Criminal Justice Legal Foundation (CJLF) (1) is a nonprofit California corporation organized to participate in litigation relating to the criminal justice system as it affects the public interest. CJLF seeks to bring the constitutional protections of the accused into balance with the rights of the victims and of society to rapid, efficient, and reliable determination of guilt and swift execution of punishment.
This case involves (1) an attempt to relitigate a misdemeanor conviction by a person no longer in custody, who has already had a full and fair opportunity to air his grievances in state court, and (2) an attempt to render police officers even more vulnerable to false complaints than they are at present, with the inevitable result of more timid law enforcement and reduced protection for law-abiding citizens. A ruling in favor of the petitioner on either or both of these issues would be contrary to the interests CJLF was formed to protect.
SUMMARY OF FACTS AND CASEThis case begins on April 9, 1996. On that date, Detective Bill Bradberry arrested Petitioner-Appellant Darren Chaker for theft of services. Report and Recommendation Denying Motion for Summary Judgment and Petition for Writ of Habeas Corpus 4 ("R&R"), Excerpts of Record 274 ("ER"). Petitioner would later claim that Bradberry used excessive force, which Bradberry denied. R&R 4-5, ER 274-275. The theft of services case was subsequently dismissed, and Petitioner was found factually innocent. R&R 5, ER 275. In March 1997, Petitioner sent a complaint letter to the Internal Affairs Division of the El Cajon Police Department, complaining of excessive force by Detective Bradberry. Ibid. This complaint "included an attestation that the facts given were true and correct to the best of Petitioner's knowledge and was submitted under penalty of perjury." Ibid. n.10.
On March 9, 1998, the San Diego District Attorney charged Petitioner in Municipal Court with violation of California Penal Code § 148.6(a)(1), filing an allegation of misconduct against a peace officer, knowing the allegation to be false. ER 1-2. (2) On February 22, 1999, Petitioner was found guilty and "sentenced to: 1) two days of custody with two days credit for time served; 2) two fines for $500.00; and 3) 15 days of public service with probation." Engrossed Settled Statement on Appeal, ER 9. The probation was "summary" probation, for a period of three years. See Petition for Writ of Habeas Corpus to California Supreme Court ("First Cal. S.C. Habeas Pet."), ER 36C. Hence, the probation ended on February 22, 2002. Appellant's Brief ("AB") 3.
Petitioner was represented by counsel in trial and on appeal. First Cal. S.C. Habeas Pet., ER 36C, 36F. His appeal did not challenge the constitutionality of the statute. Appeal Statement, ER 25. The judgment was affirmed October 15, 1999. He did not seek further direct review. See Respondent's Opposition to Petitioner's Motion for Summary Judgment 2, ER 134. Because no petition for rehearing or transfer to the Court of Appeal was filed, the judgment became final 15 days later, see Cal. Rule of Court 107(b)(1), 63(b), on October 30, 1999.
Petitioner filed three writ petitions in the San Diego Superior Court, the last of which was denied in March 2000. Respondent's Brief ("RB") 3-4.
Petitioner's first habeas petition to the California Supreme Court was filed June 2, 2000, and denied September 27, 2000. AB 3. It did not question the constitutionality of Penal Code § 148.6. ER 36H, 36J. It was summarily denied without citation, ER 36M, implying denial on the merits.
Petitioner filed his original habeas petition to the United States District Court on October 23, 2000, not raising a First Amendment issue.
Petitioner's second habeas petition to the California Supreme Court was filed December 26, 2000, and denied March 28, 2001. AB 3. Again, Petitioner did not challenge the constitutionality of the underlying statute. ER 43-46. The next day the California Court of Appeal, Fourth District denied a habeas petition claiming ineffective assistance. Supplemental Excerpts of Record ("SER") 150.
Petitioner filed his first amended federal petition on January 17, 2001. No First Amendment issue was raised in this petition. See RB 5; SER 161-176.
On September 10, 2001, Petitioner filed his third habeas petition to the California Supreme Court, raising for the first time the question of the constitutionality of the statute he was convicted of violating. AB 3. That petition was denied on February 27, 2002.
Meanwhile, as noted above, Petitioner's custody had ended on February 22, 2002. On February 28, 2002, Petitioner's second amended federal habeas petition was filed nunc pro tunc to the date of receipt, February 25, 2002. See SER 178; District Court Docket, items 22-26. This petition raised a First Amendment claim for the first time in federal court. RB 5; SER 181. Petitioner had been free of custody, under the most expansive definition of the term, for three days when he first presented this claim to a federal court.
Petitioner asked leave to file a third amended petition on April 11, 2002, AB 4, which was granted April 25, 2002.
On July 18, 2003, the magistrate judge recommended that petitioner's motion for summary judgment and the petition for habeas corpus be denied. The District Court did so on September 24, 2003, but certified for appeal the single question of the constitutionality of California Penal Code § 148.6. Order 48, ER 422. The District Court's holdings pertinent to that question are, in summary, as follows:
1. Petitioner was in custody at the time he filed his initial petition, giving the court habeas jurisdiction. The court did not discuss the implications of the fact he was not in custody at the time of the second and third amended petitions. Order 3, ER 377.
2. Petitioner was no longer in custody, and the court could not grant the relief he sought, even if it ruled in his favor on the merits. However, Chacon v. Wood, 36 F.3d 1459 (9th Cir. 1994) precluded dismissal as moot. Order 3-4, ER 377-378.
3. Respondent had waived the procedural default defense by failure to assert it. ER 383.
4. Absent a state court decision on the merits, "the Court will decide . . . Claim 1 in the first instance." Ibid.
5. California Penal Code § 148.6 is constitutional, coming within the first category identified in R. A. V. v. St. Paul, 505 U.S. 377, 388 (1992). Order 21, ER 395.
The District Court did not mention the rule of Teague v. Lane, 489 U.S. 288 (1989).
SUMMARY OF ARGUMENTThe District Court did not have subject-matter jurisdiction to decide the First Amendment issue in this case. Petitioner Chaker was no longer in custody when he first raised that issue in the District Court. Under FRCP 15(c), as applied to habeas corpus in the case law, an amendment adding an entirely new claim does not relate back.
Penal Code § 148.6 is "content neutral" in the specialized sense that the Supreme Court uses that term in First Amendment cases. It was not enacted out of disagreement with any viewpoint expressed in police complaints, but rather to address legitimate government concerns unique to such complaints. Under Hill v. Colorado, the fact that the statute may impact speakers with one viewpoint more than another does not deprive it of content-neutral status.
In any event, § 148.6 does not violate the First Amendment. It singles out a particular kind of false statement for the very reason that false statements are proscribable, and it is also justified by the secondary effects of such statements.
ARGUMENT
I. The District Court lacked subject-matter jurisdiction over the § 148.6 claim, because Petitioner was not in custody when he filed the amendment raising it, and the amendment does not relate back.Unlike many defenses to habeas corpus, custody is a prerequisite of subject-matter jurisdiction. See Maleng v. Cook, 490 U.S. 488, 494 (1989) (per curiam); Henry v. Lungren, 164 F.3d 1240, 1241 (9th Cir. 1999). Subject-matter jurisdiction defects cannot be waived. See Valdez v. Allstate Ins. Co., No. 03-16253 (9th Cir. June 22, 2004) (part II, 1st ¶).
A. Custody.In the "Relief Requested" section of his Third Amended Petition, Petitioner asked the court to "Issue a writ of habeas corpus to have Petitioner brought before the court to the end that he may be discharged from his unconstitutional conviction and any and all potential consequences . . . ." ER 52. Congress has not authorized federal district courts to do that. The power granted is to discharge a prisoner on the ground that "[h]e is in custody in violation of the Constitution or laws or treaties of the United States . . . ." 28 U.S.C. §§ 2241(c), 2254(a) (emphasis added); see also Order 3-4, ER 377-378 (doubting whether any relief could be granted). Congress said "is in custody," not "was in custody," and that is what it meant.
The custody requirement is not an obsolete relic of the writ's evolution, to be evaded by whatever rationalization can be mustered. It serves an important role today. "The federal writ of habeas corpus, representing as it does a profound interference with state judicial systems and the finality of state decisions, should be reserved for those instances in which the federal interest in individual liberty is so strong that it outweighs federalism and finality concerns." Lehman v. Lycoming County Children's Services Agency, 458 U.S. 502, 515-516 (1982).
Custody serves as a kind of amount-in-controversy limitation on the drastic remedy of collateral attack on a final judgment. There are limits to the amount of relitigation that society can afford. See, e.g., Wood v. Bartholomew, 516 U.S. 1, 8 (1995) (per curiam). A criminal defendant sentenced to a fine and subject to other collateral consequences has the same remedy as a civil litigant, i.e., direct appeal. Collateral attack is limited to cases where life or liberty is at stake.
A habeas corpus petition "may be amended or supplemented as provided in the rules of procedure applicable to civil actions." 28 U.S.C. § 2242. In other words, Rule 15 of the Federal Rules of Civil Procedure applies. Because § 2242 gives us a specific rule for amendment procedure, there is no need to resort to the general standard of Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts, although the same result would follow if we did. See Farris v. United States, 333 F.3d 1211, 1215 (11th Cir. 2003) (applying similar rule for federal prisoners).
Relation back is governed by Rule 15(c), which provides in pertinent part, "An amendment of a pleading relates back to the date of the original pleading when . . . (2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading . . . ."
This court applied Rule 15(c) to a jurisdictional custody question in Miller v. Laird, 464 F.2d 533 (1972). In that case, the question was where, not whether, the petitioner was in custody, but the principle is the same. Miller was in custody in San Diego when his original petition was filed, but he was in New Hampshire when the amended petition was filed. See id. at 534. The court held that the jurisdictional question depended on whether Miller's amended petition related back, which was governed by Rule 15(c). See ibid. Although Miller is an old case, it is still good law. See Keating v. Hood, 191 F.3d 1053, 1060 (9th Cir. 1999) (following Miller in case where second petition raises no new claims); Henry v. Lungren, 164 F.3d 1240, 1241 (9th Cir. 1999) (distinguishing but not questioningMiller and applying Rule 15(c)). Under Miller, then, Rule 15(c) governs the jurisdictional question. If the amendment relates back to the date of the original petition, when Chaker was in custody, the District Court had jurisdiction to adjudicate it. If it does not, there was no jurisdiction.
The broadest possible interpretation of Rule 15(c)(2), as applied to habeas corpus, would be that the criminal judgment being attacked is the "transaction," so all amendments attacking the same judgment relate back. See Williams v. Vaughn, 3 F. Supp. 2d 567, 570-571 (E.D. Pa. 1998). This argument has been largely rejected in the courts of appeals. See, e.g., Farris, 333 F.3d at 1215; United States v. Pittman, 209 F. 3d 314, 318 (4th Cir. 2000);United States v. Duffus, 174 F.3d 333, 337 (3d Cir. 1999). (3) The cases look to the particular claim being made against the judgment.
B. New Claims and Relation Back.In United States v. Craycraft, 167 F.3d 451, 455 (8th Cir. 1999), the defendant's original petition alleged ineffective assistance of counsel because his attorney failed to challenge the classification of the drug he was charged of possessing. The defendant's amended petition also asserted ineffectiveness due to counsel's failure to file an appeal. Id. at 455-456. The court found that counsel's failure to file an appeal was "a separate occurrence in both time and type from a failure to pursue a downward departure or failure to object to the type of drugs at issue." Id. at 457. The court noted that the deficiencies alleged in the defendant's original petition were "distinctly separate from the deficiency alleged in his amendments." Ibid. Accordingly, the new claims did not relate back under Rule 15(c) to the date of the original petition.
Similarly, in Duffus, supra, the defendant originally asserted claims of ineffective assistance at sentencing and on appeal, plus a claim on drug quantity. 174 F.3d at 335. The defendant moved to amend, adding a claim that trial counsel failed to move to suppress evidence. Ibid. The court noted that the issue of ineffective representation by counsel did not arise out of the same set of facts as the original claims, and accordingly, the amendment did not relate back. The Third Circuit cited Craycraft as "compelling precedent," id. at 337. "[T]he particular claim . . . was completely new. Thus, the amendment could not be deemed timely under the 'relation back' provisions of Fed. R. Civ. P. 15(c)." Ibid. (emphasis added).
In United States v. Pittman, 209 F.3d 314, 316 (4th Cir. 2000), the petitioner's original § 2255 motion alleged three claims: (1) lack of jurisdiction to impose a sentence enhancement for prior convictions; (2) improper enhancement for prior convictions; and (3) insufficiency of the evidence that the drug was "crack." Petitioner's motion to amend included two claims: (1) an improper sentencing enhancement for obstruction of justice for failure to appear; and (2) ineffective assistance of counsel. Ibid. The Fourth Circuit Court of Appeals found that while the addition of a claim regarding obstruction enhancement was of the same form as a the original prior conviction enhancement claim, the two claims arose out of "wholly different conduct." Id. at 318. In other words, failure to appear is different from having prior convictions, even if they both result in sentence enhancements. Accordingly, the amended obstruction of justice enhancement claim did not relate back to the original claim. Ibid. On the ineffective assistance claim, the court held it was "completely new and thus cannot relate back to his original pleading." Ibid.
Appellant argued that relation-back should be allowed, arguing that the term "occurrence" under Rule 15(c) should be interpreted as the "entire trial and sentencing proceeding." Ibid. However, the Court of Appeals rejected this argument as too general. "The fact that amended claims arise from the same trial and sentencing proceeding as the original motion, does not mean that the amended claims relate back for purposes of Rule 15(c)." Ibid.
The Tenth Circuit adopted the same rule in United States v. Espinoza-Saenz, 235 F.3d 501, 504-505 (2000). AccordUnited States v. Hicks, 283 F.3d 380, 388 (D.C. Cir. 2002). The Seventh Circuit's position alone is ambiguous. InRodriguez v. United States, 286 F.3d 972, 981 (2002), the Seventh Circuit followed Craycraft, Pittman, and Duffusand held that an amendment adding a new claim did not relate back. However, the same court took a different view in Ellzey v. United States, 324 F.3d 521, 526-527 (7th Cir. 2003). Ellzey acknowledged that "our opinion leaves in its wake a conflict among the circuits," id. at 527, implying that all the other circuits to address the question have come to the opposite conclusion.
A case that did allow relation back under the majority rule is United States v. Thomas, 221 F.3d 430 (3d Cir. 2000). In Thomas, the initial petition consisted of a standardized form provided by the clerk. The Third Circuit allowed relation-back because the amended petition only sought to add new facts to the claims submitted on the form. In allowing relation-back, the court noted that the petitioner merely sought to "correct a pleading deficiency by expanding the facts but not the claims alleged" in his original petition. Id. at 436. The court held that an amendment may relate back to the date of the original petition "if and only if the petition was timely filed and the proposed amendment does not seek to add a new claim or to insert a new theory into the case." Id. at 431. See also Mederos v. United States, 218 F.3d 1252 (11th Cir. 2000), where the court allowed relation back to correct a technical oversight to a timely filed motion.
Anthony v. Cambra, 236 F.3d 568, 571 (9th Cir. 2000) involved a different situation, where unexhausted claims are dismissed and the petition is held in abeyance pending exhaustion. Distinguishing both Craycraft and Duffus, this court held that because petitioner included his unexhausted claims in his original pleading, thereby giving notice to the state of the issues, the same claims could be amended back in after exhaustion, and the amendment relates back. See id. at 577-578. Absence of notice to the state regarding the content of the proposed amendments is grounds for denying the motion to amend. Anthony cited with approval Craycraft's holding that "the touchstone of Rule 15(c) is notice." Id. at 577 (citing 167 F.3d at 457). In Anthony, this court recognized that in both Craycraft and Duffus the proposed amendments contained entirely new claims for relief, and thus relation back was not allowed. Ford v. Hubbard, 330 F.3d 1086 (9th Cir. 2002) involved a similar "mixed petition" situation. The court held that (1) the District Court erred by not giving certain advisements regarding staying the proceedings and the statute of limitations; (2) under these circumstances, Rule 15(c) would apply to Ford's second petition as if it were an amendment to the first petition, id. at 1103; (3) claims that were in the original petition related back, id. at 1104; and (4) new claims raised for the first time in the second petition did not relate back. Id. at 1105. The Supreme Court granted certiorari and reversed as to the first holding without reaching the relation-back issue. Pliler v. Ford, No. 03-221, slip op. at 4 n.1 (U.S. June 21, 2004). The fourth holding, whether it remains technically binding precedent or not, indicates that this circuit will follow the rule that is followed in all but one of the circuits which have addressed the question. An entirely new claim raised in an amendment to a habeas petition does not relate back under Rule 15(c).
The present case fits the same pattern as Craycraft, Duffus, Pittman, and the last part of Ford, as Petitioner's amended claim states a new, independent ground for relief. In his original petition for a writ of habeas corpus, filed on October 23, 2000, Petitioner alleged insufficient evidence at trial, ineffective assistance of counsel at trial, and ineffective assistance of counsel on appeal. Petitioner's first amended petition, filed January 17, 2001, alleged he was denied effective assistance of counsel as well as additional claims of denial of the right to self-representation and specific challenges to the sufficiency of the evidence.
Not until Petitioner's second amended petition, filed on February 25, 2002, 16 months after his original habeas petition, did Petitioner challenge the constitutionality of the statute. Petitioner's constitutional argument is a new claim. This claim does not relate back under 15(c) and should be dismissed for lack of jurisdiction.
II. Penal Code section 148.6 is content neutral.The First Amendment generally forbids content discrimination. See, e.g., Regan v. Time, Inc., 468 U.S. 641, 648-649 (1984). However, that term and its inverse, "content neutral," are terms of art that are not taken at face value. Determining whether a law is content neutral is not always easy. See Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 642 (1994). "The principal inquiry in determining content neutrality . . . is whether the government has adopted a regulation of speech because of [agreement or] disagreement with the message it conveys." Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).
Since § 148.6 is not an attempt to suppress a particular viewpoint, the statute is content neutral.
Understanding that this law is content neutral begins by placing it in its proper context. As the California Supreme Court has noted, the subject matter of section 148.6, a formal complaint against police "is, in other respects,favored." People v. Stanistreet, 29 Cal. 4th 497, 510, 58 P.3d 465, 472 (2002) (emphasis in original). Under California law, "[t]hose complaints are subject to mandatory investigation and record retention requirements." Ibid., 58 P.3d at 472-473; see Cal. Penal Code § 832.5. These requirements do not apply to "such accusations against firefighters, paramedics, teachers, elected officials, or others." 29 Cal. 4th at 504, 58 P.3d at 468-469. In addition, the police officer's duties of enforcing the law and testifying against the accused in criminal cases provide a unique combination of means and motive for filing false complaints. See infra at 21-24. The special status of police complaints demonstrates that section 148.6 is not an attempt to squelch criticism of the police, but rather a legitimate effort to reduce the officers' vulnerability to false complaints.
Hill v. Colorado, 530 U.S. 703 (2000) demonstrates the importance of context in determining whether a regulation is content neutral. Hill addressed a Colorado statute regulating "speech-related conduct within 100 feet of the entrance to any health care facility." Id. at 707. It banned knowingly approaching within eight feet of a person " 'for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling' " without a person's consent. Ibid. The Hill Court applied the Ward test in determining that the Colorado law was content neutral. See id. at 719. The petitioners argued that the law was not content neutral because it prohibited only certain types of speech, while permitting other speech in the same situation. See id. at 720. Since officers must determine the content of the speech before determining whether the speaker is covered by the statute, the petitioners argued that the Colorado law was not content neutral. See ibid.
These claims did not prevail. The determination of whether a statute applies to a particular instance of speech can turn on the content of the speech. "Whether a particular statement constitutes a threat, blackmail, an agreement to fix prices, a copyright violation . . . often depends on the precise content of the statement." Id. at 721. Nor did the motive behind the legislation transform it into content discrimination. The fact that the law was motivated by the "conduct of the partisans on one side of a debate" did not change the conclusion that it was content neutral. See id. at 724-725. While a focus on content can threaten free speech, "a statute that restricts certain categories of speech only lends itself to invidious use if there is a significant number of communications, raising the same problem that the statute was enacted to solve, that fall outside the statute's scope, while others fall inside." Id. at 723.
There are differences between Hill and the present case. The Hill statute was not limited to anti-abortion protests,see id. at 725, while the California law focuses exclusively on complaints against the police. In another sense, however, § 148.6 is as evenhanded as the Colorado law. Although it only penalizes police complaints, it penalizes all knowingly false complaints regardless of the viewpoint expressed by the complaint. Whether the complaint expressed the view that the officer was too aggressive or not aggressive enough, was racist or too solicitous of racial minorities, or any other viewpoint, if it is knowingly false, then it is illegal.
The statute in Hill was motivated by the activities of anti-abortion protesters, and as a practical matter, only regulated those individuals. While on its face the statute applies to pro-abortion protesters in front of health clinics who approach unwilling listeners, the possibility of actually restricting a pro-abortion protest is quite remote. See id. at 767 (Kennedy, J., dissenting). Yet this "disparate impact" did not deprive the law of its content-neutral status. See id. at 724 (majority opinion). If the Colorado law in Hill is content neutral, then there is no reason to come to a different conclusion for the evenhanded California law.
The special status of police complaints in California helps bring the present case within Hill's reasoning. Section 148.6 does not address other forms of government criticism because they do not present the unique problems found in the police complaint process. Since police are not similarly situated with other vocations with respect to the complaint process, the statute "does not distinguish among speech instances that are similarly likely to raise the legitimate concerns to which it responds." Ibid.
Section 148.6 only regulates one form of police criticism, a complaint filed against the officer. All other forms of criticism are permitted, including letters to the editor, picketing, or voicing criticism to a county supervisor or city council member. The citizen complaint process is a specialized forum that can be regulated by California without violating the First Amendment.
When the state creates a limited forum, it has more control over who speaks and what is said than it has in public forums. "The necessities of confining a forum to the limited and legitimate purposes for which it was created may justify the State in reserving it for certain groups or for the discussion of certain topics." Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 829 (1995).
The ability to make such distinctions has limits. The distinction must be "reasonable in light of the purpose served by the forum and [must be] viewpoint neutral." Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 806 (1985). Section 148.6 satisfies both requirements, as it only prohibits proscribable speech, knowingly false statements, see infra at 20, and addresses the police officer's unique vulnerability to false complaints. See infra at 21-24.
Section 148.6 can actually strengthen the law enforcement community's ability to address legitimate complaints against police. A flood of bad complaints can drive out the relative handful of valid ones. As Justice Jackson noted in the context of habeas corpus claims, "It must prejudice the occasional meritorious application to be buried in a flood of worthless ones. He who must search a haystack for a needle is likely to end up with the attitude that the needle is not worth the search." Brown v. Allen, 344 U.S. 443, 537 (1953) (Jackson, J., concurring in the result).
At the very least, false complaints about police divert scarce investigative resources from legitimate claims. In addition, if most complaints are false, then those investigating the claims will be more likely to dismiss marginal or difficult to investigate claims as simply crying wolf. Section 148.6 was motivated by claims from law enforcement that most complaints were false, see Stanistreet, 29 Cal. 4th at 503, 58 P.3d at 468, and is a narrowly focused attempt to deal with this problem. Since it may strengthen the complaint process by deterring knowingly false complaints, section 148.6 does not suppress any viewpoints and therefore is content neutral.
III. Even if Penal Code § 148.6 is not content neutral,
it is an acceptable regulation of content.A conclusion that a regulation of speech is not content neutral does not end the analysis. "Even the prohibition against content discrimination that we assert the First Amendment requires is not absolute." R. A. V. v. St. Paul, 505 U.S. 377, 387 (1992). The prohibition against content discrimination exists to prevent the government from suppressing certain viewpoints simply because they are disfavored. See Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 641 (1994). This rationale "applies differently in the context of proscribable speech . . . ." R. A. V., 505 U.S. at 387. The threat of suppressing viewpoints is often nonexistent when the discrimination is between "various instances of a class of proscribable speech . . . ." Id. at 388.
Penal Code § 148.6 only punishes proscribable speech. It applies to anyone "who files any allegation of misconduct against any peace officer . . . knowing the allegation to be false . . . ." Cal. Penal Code §148.6. Knowingly false statements of fact are the essence of proscribable speech. "[T]here is no constitutional value in false statements of fact." Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974). Since the statute only applies to knowingly false speech, and leaves open many other avenues for criticizing police officers, see supra at 18, it is a prime candidate for the exceptions to the prohibition against content discrimination explained by R. A. V.
R. A. V. outlines two specific instances where regulation of proscribable speech does not have to be content neutral. The first exception is stated simply. "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." R. A. V., 505 U.S. at 388. In other words, the state can discriminate between the reasons that allow the speech to be proscribed. The First Amendment allows the state could "prohibit only that obscenity which is the most patently offensive in its prurience--i.e., that which involves the most lascivious displays of sexual activity." Id. at 388 (emphasis in original). Similarly, criminalizing only threats against the President does not violate the First Amendment "since the reasons why threats of violence are outside the First Amendment . . . have special force when applied to the person of the President." Ibid. A "final example" provided by the R. A. V. Court is that the government may regulate advertising in one industry instead of others because the regulated industry is more susceptible to fraud. Ibid.
Section 148.6 is consistent with these last two examples. This follows from an understanding of the nature of the police complaints, and the extra incentives there are for making false accusations against police.
After the Rodney King incident, California police departments made it substantially easier for civilians to initiate complaints against police officers. See People v. Stanistreet, 29 Cal. 4th 497, 502, 58 P.3d 465, 468 (2002); California Assembly Committee on Public Safety, Analysis of Assembly Bill No. 1732 (1995-1996) (Reg. Sess.), inRequest and Declaration to Take Judicial Notice of Legislative History of California Penal Code Section 148.6, p. 11 ("Leg. History"). California law requires that all complaints against police officers must be investigated and that records of the investigation must be kept for at least five years. See Cal. Penal Code §832.5. In addition, California law gives criminal defendants broad discovery rights with respect to the personnel records of police officers. See Pitchess v. Superior Court, 11 Cal. 3d 531, 536-537, 522 P.2d 305, 309 (1974); Santa Cruz v. Municipal Court, 49 Cal. 3d 74, 84, 776 P.2d 222, 227-228 (1989) ("relatively relaxed" standards for discovery under Pitchess). (4) These conditions combine to present special incentives for individuals to file false complaints against the police.
Friction between police officers and certain members of the public is inevitable. The subject matter of their work, crime, is inherently unpleasant. When investigating a crime, the victim and those close to him or her will be upset and frustrated by the crime and may project those feelings towards the police for their failure to prevent the crime. Investigating the crime will naturally foster tension between the police and suspects. If the investigation leads to an arrest, tension between the police and the suspect and those close to the suspect is inevitable. While a substantial majority of the public have a justified confidence in the police, see U.S. Dept. of Justice, Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics, 2002, p. 116 (2003) (Table 2.13) (61% have a great deal of confidence in the police), a substantial number of people are likely to be dissatisfied with the police even if they are doing their job properly.
The role of the police officer in litigating criminal charges creates an incentive to discredit him or her through the complaint process. Police officers are often witnesses in criminal cases. See Briscoe v. LaHue, 460 U.S. 325, 343 (1983). There are many cases in which an officer's "character, training, and experience could effect the weight and admissibility of incriminating evidence." Alford v. Superior Court, 29 Cal. 4th 1033, 1052, 63 P.2d 228, 240 (2003) (Baxter, J., concurring and dissenting) (listing examples). While an investigation refuting false claims of misconduct could mitigate this danger, this may not happen quickly enough to affect the trial, particularly if the defendant exercises the right to a speedy trial. See generally Barker v. Wingo, 407 U.S. 514, 530-531 (1972); Cal. Penal Code §1382(a)(2) (dismissal if no trial within 60 days of indictment or information absent good cause).
Unfortunately, filing false allegations of misconduct against police can be an effective tactic. As a supervisor in the Los Angeles County Sheriff's Department noted, "One complainant recently told one of our station watch commanders that she was filing a complaint against an officer because she was angry he arrested her son and she heard that he could not make sergeant if he had a certain number of complaints against him. Additionally, in Oakland narcotics officers have discovered that local gang members often recruit members of a community to file false complaints against officers in an effort to get them to back off from their enforcement efforts." See Letter of Todd Rogers to James Lovell (July 8, 1994), in Leg. History at 11.
The Bakersfield Chief of Police noted an even more troubling development: "On occasion, complaints investigated by our internal affairs staff are initiated by individuals who have already been to court at least once. Interviews reveal these subjects are being advised by their attorney to complain on arresting officers." Letter of S.E. Brummer to Assemblymember Paula Boland (June 29, 1995), in Leg. History at 57.
Officers are also economically vulnerable to false complaints. An officer with a pending complaint will have any promotion and pay deferred until the investigation of the complaint is resolved in the officer's favor. California Assembly Committee on Public Safety, Analysis of Assembly Bill No. 1732, p. 2 (1995-1996) (Reg. Sess.), in Leg. History at 27. Even when the complaint is resolved in the officer's favor, there is no effective recourse for the officer to recover the pay lost due to the promotion's deferral. See ibid. As the Los Angeles County Sheriff noted, "Our Internal Affairs Bureau reports that false allegations of police misconduct often reflect unrelated grievances. These vary from angry traffic violators sulking about a ticket to manipulative criminals who feel an allegation will divert attention from their own pending criminal charges. Until resolved, these fraudulent reports can have an adverse impact on a deputy's job mobility and promotion opportunity." Letter of Sherman Block, Los Angeles County Sheriff to Assemblywoman Paula Boland (April 14, 1995), in Leg. History at 47.
Police officers are more exposed to the threat of false complaints than other government employees or members of the general public. The job of police officer is one of the handful of occupations in which testifying in court is an essential part of the occupation. The only others who might appear as witnesses with similar regularity are forensic specialists or professional expert witnesses. These people, however, do not have the same contact with criminal defendants or the public as police officers. Arresting, searching, interrogating, and other means of investigating and preventing crime provide the motive and opportunity for manufacturing false complaints not found elsewhere.
The police officer's greater risk of suffering false complaints places Penal Code §148.6 squarely within the firstR. A. V. exception. If the state can more heavily regulate advertising in an industry prone to fraud, see 505 U.S. at 388-389, then California can give more protection to police officers who are at greater risk from false complaints. Also, as with threats against the President, see id. at 388, false complaints operate with greater force against police officers. Formal complaints against officers are "in other respects favored" in the eyes of the law. Stanistreet, 29 Cal. 4th at 510, 58 P.3d at 472. The mandatory investigation and retention of records that is the result of a formal complaint, see Cal. Penal Code §832.5, give the complaint against a police officer a force not found in other contexts. (5) The potential discovery of an officer's personnel file under a Pitchess motion exacerbates the force with which a false complaint can harm an officer.
Section 148.6 also satisfies R. A. V.'s secondary effects exception. See 505 U.S. at 389. "The police function fulfills a most fundamental obligation of government to its constituency. Police officers in the ranks do not formulate policy, per se, but they are clothed with authority to exercise an almost infinite variety of discretionary powers." Foley v. Connelie, 435 U.S. 291, 297 (1978).
Protecting the public is "dangerous and difficult," and exposes officers to considerable stress. Jaffee v. Redmond, 518 U.S. 1, 11, n. 10 (1996). Allowing disgruntled civilians to employ false complaints as a weapon against the police will deter some officers from doing their job properly. If they do not do anything to offend others, like arresting suspects, then the officers are less likely to fall victim to a false complaint.
The defense of qualified immunity advances a similar goal. The qualified immunity doctrine protects government officials from a fear of litigation that would otherwise deter them from an " 'unflinching discharge of their duties.' " Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982). While qualified immunity acts as a shield against dubious lawsuits, § 148.6 is a sword armed against knowingly false formal complaints against police officers. The threat to public safety from false complaints aimed at police is a secondary effect that satisfies the second exception to R. A. V. Since § 148.6 satisfies the two R. A. V. exceptions, a finding of content discrimination would not render it unconstitutional.
CONCLUSIONThe case should be remanded to the District Court to dismiss for lack of jurisdiction, or, if the court finds jurisdiction, the judgment of the District Court should be affirmed.
June 30, 2004
Respectfully submitted,
Kent S. Scheidegger*
Charles L. HobsonAttorneys for Amicus Curiae
Criminal Justice Legal Foundation
*Attorney of Record
1. CJLF has written consent of all parties to file this brief.