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 9th Circuit notes – for the purpose of discarding – that false statements against public officials are not protected by the First Amendment. The Court’s problem in this case was the under-inclusiveness of the regulation – regulating false statements by the complainant while not prohibiting same by parties taking the opposite side. However, it is noted in the opinion itself that under-inclusiveness is also not barred by the First Amendment. (And since the stated problem the legislation was intended to address was an increase in false abuse allegations – the Court could have read the legislation as being narrowly tailored to address a specific problem rather than a sinister attempt to criminalize criticism of the government . . . )

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. . .
At oral argument, the state and amicus curiae in support of the state offered three statutes which they believe regulate knowingly false speech of peace officers during the course of a misconduct investigation: California Penal Code sections 118.1, 132, and 134. They argued that these statutes put peace officers on equal footing with complainants in the course of a complaint investigation. Section 118.1, however, only prohibits an officer from filing a crime report if he or she knowingly and intentionally makes any statement regarding any material matter in the report which the officer knows to be false. . . . We are aware of no authority, nor do the parties direct us to any, holding that a knowingly false statement made by an officer in the course of a misconduct investigation falls within the prohibition of filing a false crime report under section 118.1.


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.

4 thoughts on “Ninth Circuit Roulette”

  1. Great analysis. The immediate overrule is made almost certain by the mere fact that the Supremes need only cut and paste the existing opinion.
    I am more interested in your opinion on the Ninth’s latest bit of legal genuis, namely their opinion stating that parents don’t have the right to prevent the state from instructing thier own children in matters of sex. I thought just about everyone agreed that care, custody and control of ones children was fundamental. Any opinion of your own.
    One more thing, if my Angels get Manny, you can shut this blog down because if your not talking about the Angels you’ll be talking about second place.

  2. Just once, I would like to say court rulings, at any level, be based on common sense, and not on pilpul (that is the Talmudic definition of BS–OK, it’s really arcane ideas of ridiculous points in Talmudic law), but really, how about some plain old sense for a change?

  3. Thanks for the link – it’s a rare thing that I’ll find a judicial opinion egregious enough to post a shot at it – the law is a complex thing and plenty of positions can reasonably be defended, even if I don’t personally agree with them.
    But that one, reading the judges’ rationale wasn’t an improvement on the news story.

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