Covering the Front and Back Pages of the Newspaper
November 7, 2005
LAW: Ninth Circuit Roulette
Ace notes another bizarre decision, which would seem ripe for certiorari and reversal, discussed here - the Ninth Circuit struck down a California statute making it a crime to file a false complaint against a police officer:
The Ninth Circuit's rationale . . . is that because the statute is silent on penalizing false statements in support of the police, false allegations of abuse are being discriminated against on viewpoint grounds. . .
The case for certiorari is strengthened by the fact that the Ninth Circuit, in so holding, expressly overruled the California Supreme Court, which had held that the statute was constititional. The Ninth Circuit's opinion is here (in PDF form). Frankly, having just skimmed the opinion, I'm not even sure why the First Amendment is implicated here: the complainant is free to make the false charge of police brutality, but is penalized only for making that false charge in the process of filing a complaint that triggers a legal process. The court's reasoning unintentionally makes this point crystal clear:
An illustration drawn from this case may be helpful. At Chaker's criminal trial, the witness who observed Chaker's arrest testified that she saw no signs of excessive force during Chaker's arrest. However, had the witness made this statement to the investigator charged with investigating Chaker's complaint, knowing the statement to be false, the witness would not have faced criminal sanction under section 148.6. Similarly, had Officer Bradberry made a knowingly false statement to the investigator charged with investigating Chaker's complaint, Officer Bradberry would not have faced criminal sanction under section 148.6. It is only Chaker, who filed a complaint of peace officer misconduct complaining that Officer Bradberry mistreated him in the course of an arrest, who faced criminal liability under section 148.6 for his knowing falsehood.
[S]ection 148.6 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 148.6. Knowingly false speech supportive of peace officer conduct is not similarly subject to prosecution. . .
We note that any impermissible viewpoint-based bias present in the complaint investigation process is easily cured: California can make all parties to an investigation of peace officer misconduct subject to sanction for knowingly making false statements. Otherwise, the selective sanction imposed by section 148.6 is impermissibly viewpoint-based.
As you can see, each of the examples cited by the court involves a participant in a pre-existing investigation, rather than the person whose statements caused the state to initiate the investigation in the first place. Thus, the complainant is simply not similarly situated to the other parties, none of whom has triggered the machinery of the state by speaking.