California Peace Officers Association. Chaker V Crogan

California Peace Officers’ Association 1455 Response Road, Suite 190, Sacramento, CA 95815 (916) 263-0541 Fax: (916) 263-6090 E-mail: [email protected] l web site: www.cpoa.org

CASE ALERT MEMORANDUM May 18, 2006 Prepared by the firm of

JONES & MAYER

3777 North Harbor Boulevard Fullerton, CA 92835 (714) 446-1400 Fax: (714) 446-1448 CLIENT ALERT MEMORANDUM To: All Police Chiefs & Sheriffs From: Martin J. Mayer, Michael R. Capizzi and Krista MacNevin Jee PENAL CODE SECTION PROHIBITING FALSE CITIZENS’ COMPLAINTS AGAINST PEACE OFFICERS UNCONSTITUTIONAL. On May 15, 2006, the United States Supreme Court denied a petition for review of a Ninth Circuit Court of Appeals decision holding California Penal Code Section 148.6 unconstitutional, Docket No. 05-1118. Section 148.6 provides that “[e]very person who files any allegation of misconduct against any peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2, knowing the allegation to be false, is guilty of a misdemeanor.” This specific provision was challenged in the habeas writ petition that was the subject of Darren David Chaker v. Alan Crogan and the People of the State of California. Mr. Chaker was charged and convicted of a violation of Section 148.6. He challenged that conviction in federal court. The Ninth Circuit found that Section 148.6 was unconstitutional and the California Attorney General, on behalf of the County of San Diego, filed a petition for review of that decision in the United States Supreme Court. We filed an amicus curiae brief on behalf of the California State Sheriffs’ Association, the California Police Chiefs’ Association, and the California Police Officers’ Association. The decision of Supreme Court this week means that the Ninth Circuit’s opinion is final. The Section is unconstitutional, according to the federal courts. Of course, that decision does not affect the California Supreme Court’s prior determination in People v. Atkinson (Stanistreet), 29 Cal. 4th 497 (2002), that Section 148.6 is constitutional. These two decisions lead to the result that Section 148.6 is constitutional according to the California State courts, but is unconstitutional according to the federal courts.

Enforcement, however, of Section 148.6 could lead to civil rights lawsuits seeking substantial damages in federal court. We recommend that you cease using the language in Section 148.6 in all citizens’ complaint forms. HOW THIS AFFECTS YOUR AGENCY Section 148.6 currently requires the following admonition as to citizens’ complaints against peace officers filed with law enforcement agencies: 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. I have read and understood the above statement. -------------------Complainant Your agency will need to review the forms used for citizens’ complaints against peace officers, in order to modify the language, above, which is contained within them. The forms should no longer refer to the fact that a knowingly false claim against an officer can be prosecuted as a misdemeanor. Until your forms can be changed, any such language on your forms should be stricken, in order to avoid a challenge to your use of such language in federal court. We urge that you confer with your agency’s legal counsel before relying on the information set forth above, and in order to determine exactly what course of action should be taken in response to the above decision. If you wish to discuss this matter in greater detail please feel free to contact our office at 714- 446-1400 or by e-mail to Martin Mayer at mjm@ jones-mayer.com.