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Penal Code 148.6 is Constitutional!

Posted on Wednesday, January 01, 2003 at 12:00PM
Posted by Alison Berry Wilkinson

The Statute: Enacted in 1995, Penal Code section 148.6 makes it a misdemeanor to file an allegation of misconduct against a peace officer knowing the allegation to be false. Section 148.6 was enacted to close the gap left by the courts after section 148.5 (which makes it a misdemeanor to report a felony or misdemeanor knowing the report to be false) was found not to apply to complaints of police misconduct from members of the public. See, Pena v. Municipal Court, 96 Cal. App. 3d 77 (1979); People v. Craig, 76 Cal. App. 4th 19 (1999).

In enacting section 148.6, the Legislature noted that following the Rodney King incident in March 1991, law enforcement agencies revised their citizen complaint procedures to promote greater accountability for line officers. However, the Legislature also noted that a “glaringly negative side-effect which resulted was a 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 job. See, San Diego Police Officers Association v. San Diego Police Department, 76 Cal. App. 4th 19, (1999).

But section 148.6 did not merely extend 148.5′s protections to peace officers, it went farther. Section 148.5 applies only to knowingly false reports of a criminal offense, whereas section 148.6 applies to all citizen complaints of police misconduct, even if it does not rise to the level of a criminal offense. It was that distinction that pitted the full power of the ACLU against the statute.

The False Complaint: This case began its long journey to the California Supreme Court in Oxnard, after defendants Shaun Stanistreet and Barbara Joyce Atkinson falsely accused an Oxnard police officer of committing lewd conduct at a Police Athletics League gathering. The officer was the director of the PAL, which was a police sponsored group that worked with at-risk youth. Both defendants were found guilty of violating both section 148.5 and 148.6.

The verdicts were reversed by the Court of Appeals, which found that section 148.5 did not apply to complaints of police misconduct, and that section 148.6 was unconstitutional.

The Supreme Court Opinion: At the outset, the court noted that the right to criticize the government and its officials “is among the quintessential rights Americans enjoy under the First Amendment”, and, as a result, receives the highest protection.

However, the court also noted that the protection does not extend to all speech. The court stated: “There is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society’s interest in ‘uninhibited, robust and wide-open’ debate on public issues.”

Since knowingly false statements are constitutionally unprotected, and since section 148.6 governs false allegations of misconduct only if the person knows them to be false, the section only proscribed constitutionally unprotected speech.

But that simple fact did not end the court’s inquiry, because the ACLU also fought the statute on the grounds that it unlawfully discriminated against speech by affording greater protection to critical statements about peace officers than it affords to statements about other public officials. The ACLU claimed, by restricting speech based on its content and viewpoint, section 148.6 was unconstitutional.

Because it is constitutionally acceptable to regulate the content of speech where the secondary effects of that speech are substantial, I spent a considerable amount of time in the amicus brief detailing the impact that false accusations of misconduct have on the career of a peace officer. Thankfully, the Supreme Court understood that the mandatory investigation and record retention requirements imposed by the Penal Code on citizen complaints of police misconduct are substantial and can have a considerable negative impact on an individual police officer and his/her career. As a result, the court found that these secondary effects justify the harsher treatment of false complaints filed against peace officers.

Conclusion: At long last, peace officers have a remedy where a knowingly false complaint of misconduct is filed against them. The officer can seek to have the individual prosecuted for a misdemeanor under Penal Code section 148.6.

Now that section 148.6 has been declared constitutional, all police departments should return to requiring every person who files a complaint of misconduct to read and sign an advisory, in boldface type, that states:

YOU HAVE THE RIGHT TO MAKE A COMPLAINT AGAINST A POLICE OFFICER FOR ANY IMPROPER POLICE CONDUCT. CALIFORNIA LAW REQUIRES THIS AGENCY TO HAVE A PROCEDURE TO INVESTIGATE CITIZENS’ COMPLAINTS. YOU HAVE A RIGHT TO A WRITTEN DESCRIPTION OF THIS PROCEDURE. THIS AGENCY MAY FIND AFTER INVESTIGATION THAT THERE IS NOT ENOUGH EVIDENCE TO WARRANT ACTION ON YOUR COMPLAINT; EVEN IF THAT IS THE CASE, YOU HAVE THE RIGHT TO MAKE THE COMPLAINT AND HAVE IT INVESTIGATED IF YOU BELIEVE AN OFFICER BEHAVED IMPROPERLY. CITIZEN COMPLAINTS AND ANY REPORTS OR FINDINGS RELATING TO COMPLAINTS MUST BE RETAINED BY THIS AGENCY FOR AT LEAST FIVE YEARS.

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.
ABOUT THE AUTHOR: Alison Berry Wilkinson is the managing partner at Rains, Lucia & Wilkinson LLP, a law firm that focuses on representing peace officers in all aspects of their employment. Alison has considerable experience in civil litigation and appellate work, as well as disciplinary representation and collective bargaining.

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