First Amendment Bars Law Criminalizing Making Knowingly False Complaints Against Police Officers

On April 9, 1996, El Cajon Police Officers Bill Bradberry and Terry Johnston arrested Darren Chaker for theft of service for retrieving his car from a mechanic without paying. Several months later, on August 15, 1996, Chaker filed a claim for damages form with the City of El Cajon alleging that Officer Bradberry hit him in the ribs, strip-searched him, 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. Chaker also sent a letter directly to the Police Department’s Internal Affairs Division, making the same complaint. Chaker signed one of the letters under penalty of perjury.

In March 1998, the San Diego District Attorney’s office filed a misdemeanor criminal complaint against Chaker in state court. 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), which makes it a misdemeanor to “file any allegation of misconduct against any peace officer knowing the allegation to be false.”

A jury found Chaker guilty. After several unsuccessful appeals, Chaker filed a pro se habeas petition in federal district court alleging, among other things, that Section 148.6(a)(1) violated the free speech guarantees of the First Amendment to the United States Constitution.

The federal Ninth Circuit Court of Appeals agreed with Chaker, reaching precisely the opposite conclusion on the constitutionality of the law reached by the California Supreme Court.

The Ninth Circuit began by observing that knowingly false statements about police officers were unprotected by the First Amendment: “We begin our analysis by recognizing that a knowingly false assertion made by a peace officer or witness in support of a peace officer during the course of a misconduct investigation, like a knowingly false complaint of misconduct, is equally at odds with the premises of democratic government.”

In the eyes of the Court, the problem with Section 148.6(a)(1) was that it only prohibited “the knowingly false speech of those citizens who complain of peace officer conduct.” That the statute did not prohibit false speech in support of officers, the Court reasoned, resulted in the statute not being “content-neutral” as required by the First Amendment. As the Court put it, “the Supreme Court has looked skeptically on statutes that exempt certain speech from regulation, where the exempted speech implicates the very same concerns as the regulated speech.”

The Court found that it was “particularly troublesome” that the statute “is necessarily limited to criticism of government officials – peace officers. Suspicion that viewpoint discrimination is afoot is at its zenith when the speech restricted is speech critical of the government. The imbalance generated by Section 148.6 – i.e., only individuals critical of peace officers are subject to liability and not those who are supportive – therefore turns the First Amendment on its head.”

The Court concluded that Section 148.6(a)(1) “regulates an unprotected category of speech, but singles out certain speech within that category for special opprobrium based on the speaker’s viewpoint. Only knowingly false speech critical of peace officer conduct is subject to prosecution under Section 148. Knowingly false speech supportive of peace officer conduct is not similarly subject to prosecution. California has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules.”

Chaker v. Crogan, 2005 WL 2978600 (9th Cir. 2005).

This article appears in the December 2005 issue