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Court Upholds Penal Code Section 148.6 Advisory Against Making False Complaints
California law requires law enforcement agencies to investigate complaints against peace officers. (Pen. Code, Section 832.5, subd. (a)(1)). To prevent individuals from making false complaints against officers, the Legislature enacted Penal Code Section 148.6, which makes it a misdemeanor for anyone to knowingly file a false misconduct complaint against a peace officer. Section 148.6 also requires law enforcement agencies to require those who want to file complaints against officers to sign an advisory that warns that knowingly filing a false complaint may result in criminal prosecution.
In 2000, the U.S. sued the City of Los Angeles alleging the City had failed to implement appropriate management practices which resulted in a pattern or practice of unconstitutional conduct that deprives persons of rights, privileges, or immunities under the U.S. Constitution or laws. To resolve this lawsuit, the U.S. and the City signed a decree in which the City agreed to receive anonymous complaints and to “prohibit officers from asking or requiring a potential complainant to sign any form that in any manner limits . . . the ability of a civilian to file a police complaint with the [Department] or any other entity.” In compliance with the decree, the City did not require any complainants to sign the Penal Code Section 148.6 advisory.
In 2002, the California Supreme Court upheld Section 148.6 against a challenge that the statute was an impermissible content-based speech restriction under the First Amendment to the U.S. Constitution. (People v. Stanistreet (2002) 29 Cal.4th 497).
In 2005, however, the U.S. Court of Appeals for the Ninth Circuit ruled that Section 148.6 was an impermissible viewpoint-based speech restriction because the statute criminalized only false statements that accused a peace officer of misconduct, and not false statements in support of an officer. (Chaker v. Crogan (9th Cir. 2005) 428 F.3d 1215).
Although the consent decree ended in 2013, the City continued to accept anonymous complaints and did not require complainants to sign the Section 148.6 advisory. As a result, in 2017 the L.A. Police Protective League, a professional organization, filed a lawsuit against the City seeking a declaration that Section 148.6 was valid and enforceable and that the City was required to comply with it. The City argued that according to the Chaker decision, Section 148.6 was an impermissible content-based speech restriction under the First Amendment because the law only made it a crime to knowingly make a false claim against a peace officer, but did not make it a crime to knowingly make false claims in support of a peace officer. The trial court ruled that Section 148.6 was lawful because of the California Supreme Court’s holding in Stanistreet.
The City appealed. But the California Court of Appeal affirmed the trial court, noting that “Although the specific arguments the California Supreme Court rejected in Stanistreet are somewhat different from those the City advances here, the Supreme Court’s reasoning in Stanistreet applies.”
Following the reasoning in Stanistreet, the Court of Appeal reasoned that even if section 148.6 was an impermissible content-based speech restriction, the statute still fell within one of the “three categories of content discrimination that . . . are permissible” under the U.S. Supreme Court’s decision in R.A.V. v. City of St. Paul, Minn. (1992) 505 U.S. 377. Those categories include:
- The basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is dangerous or harmful;
- The speech is associated with particular secondary effects, so that the regulation is justified without reference to the content of the speech;
- The nature of the content discrimination is such that there is no realistic possibility that governmental suppression of ideas is afoot.
With respect to the first and second RAV exceptions, complaints against a peace officer automatically trigger mandatory investigation and records retention requirements. Therefore, there is greater harm for knowingly filing a false complaint, because a false commendation does not trigger those requirements. Moreover, public resources are required to conduct investigations into alleged police misconduct, and in the interim the officer’s career may suffer.
For the third exception, the court noted that the Legislature was only suppressing false reports of police misconduct. Because the Legislature instituted mandatory investigation requirements for complaints against peace officers, it cannot be said that the Legislature’s intent was to “disfavor” false complaints.
L.A. Police Protective League v. City of L.A., 2022 WL 1580024.
The concurring opinion to this decision notes that the City is a charter city, and had, but did not make, other arguments to avoid Penal Code Section 148.6, including that this law violated the home rule doctrine, or that it was a directory and not mandatory law.