Chaker V Crogan Cbs News _ Cbs News False Accusations Against Police Protected (4)

Defending the Constitutionality of Penal Code section 148.6 By Alison Berry Wilkinson Rains, Lucia & Wilkinson LLP The constitutionality of Penal Code section 148.6 is once again under attack by the American Civil Liberties Union (ACLU). This time, however, the ACLU has taken its quest to a new level – the Ninth Circuit Court of Appeals – in an attempt to end-run the California Supreme Court’s decision in People v. Stanistreet, 29 Cal. 4th 497 (2002). Because section 148.6 provides important rights to peace officers falsely accused of misconduct, and since I had filed on behalf of the PORAC Legal Defense Fund an amicus brief in the Stanistreet matter, I requested and received authorization to do so again in Darren David Chak er v. Alan Crogran, Warden, San Diego County Probation Department, Ninth Circuit Case Number 03-56885. SUMMARY OF THE CHAKER CASE Darren David Chaker filed a Writ of Habeas Corpus in the federal court challenging his conviction in the San Diego County Municipal Court for knowingly filing a false allegation of misconduct against a peace officer in violation of California Penal Code section 148.6(a)(1). That writ alleged that his conviction was contrary to the First Amendment, and that the California Supreme Court’s decision in Stanistreet involved an “unreasonable application” of clearly established federal law. Chaker’s conviction was premised on a citizen’s complaint that he filed against an El Cajon police officer alleging “unlawful arrest,” “excessive force”, and “search without cause.” Chaker claimed that although he complied with the officer during his arrest, the officer nevertheless twisted his wrist and hit him in the ribs. He also alleged that the officer intentionally stopped the transport van suddenly in order to cause Chaker (who was not wearing a seatbelt) to hit his head on the dashboard. An independent witness, a clerk at the Postal Convenience Center where Chaker was arrested, testified that she clearly saw the entire arrest procedure, that it was completely professional, and that she observed no excessive force. The other officer present at the arrest testified that Chaker’s ribs were not hit, his wrist was not twisted, nor did he hit his head in the van.

The Writ of Habeas Corpus was denied by the United States District Court for the Southern District of California. The District Court concluded that the Stanistreet decision was not an unreasonable application of clearly established federal law. Interestingly, the District Court made that decision despite the fact that the magistrate judge to whom the case was assigned found that section 148.6 “probably violates the First Amendment [because] the statute impermissibly discriminates on the basis of the content of the speech which it regulates and is both impermissibly vague and overbroad.” The magistrate judge stated that, if he had been free to do so, he would hold section 148.6 to be unconstitutional”. Although it was not obligated to do so, the Ninth Circuit has accepted an appeal of the District Court’s decision in Chak er. This is an ominous development, in that the worst-case scenario might be that the federal court overturns the Stanistreet decision. Since Stanistreet was based entirely upon federal law, and since the federal courts are not required to defer to a state court’s interpretation of federal law, federal court could eliminate the important rights secured in the Stanistreet decision. Another cause for concern is that, the ACLU as latched onto the United States Supreme Court decision in Virginia v. Black , 538 U.S. 343 (2003), which was decided after Stanistreet, and is arguing that the Black case “exposes the flaws” in the Stanistreet analysis. Not surprisingly, the ACLU’s interpretation of the Black case is completely flawed, which was thoroughly highlighted and analyzed in our amicus brief. The Legal Defense Fund has a steadfast commitment to securing and maintaining important rights for peace officers. The ability to prosecute an individual who knowingly makes a false complaint against a peace officer is one of those rights. Consequently, I filed the amicus brief in the Ninth Circuit to preserve the constitutionality of Penal Code section 148.6. Stay tuned as this drama continues to wind its way through the courts.

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