Could Your City be Violating the Constitution by Following the Penal Code? An Analysis of Penal Code Section 148.6 Requirements and Alternatives

by Algeria Ford

California Penal Code Section 148.6 criminalizes the filing of knowingly false statements against peace officers. The Code requires law enforcement to issue advisements that must be signed by a complainant when making a complaint against an officer. In Chaker v. Crogan, the Ninth Circuit Court of Appeal ruled that Section 148.6 was unconstitutional because it impermissibly regulated speech based on viewpoint. More than a decade since that decision, California legislators have still not repealed or revised section 148.6, which continues to require that law enforcement give complainants the advisements.

Background

California Penal Code Section 148.5 makes it a misdemeanor to falsely report a felony or misdemeanor. Following several court decisions holding section 148.5 did not extend to complaints of police misconduct, the California Legislature enacted Section 148.6 to cover citizens’ complaints of police misconduct.

California Penal Code Section 148.6 mandates any law enforcement agency that accepts an allegation of misconduct against a peace officer to require the complainant to read and sign an advisory warning. The warning informs the complainant that is against the law to make a complaint he or she knows to be false and that if he or she knowingly makes a false complaint, he or she could be prosecuted on a misdemeanor charge.

California Supreme Court Decision

The constitutionality of Section 148.6 was challenged in California State Court in People v. Stainistreet. Ventura couple Barbara Atkinson and Shaun Stanistreet were prosecuted and convicted of falsely accusing a police officer of exposing himself. The couple appealed, and a divided Ventura Superior Court Appellate Division affirmed. On further appeal by the couple, the California Court of Appeal ruled that Section 148.6 was unconstitutional because it violated the First Amendment and regulated speech based on viewpoint. The State then appealed to the California Supreme Court.

The California Supreme Court heard the case and concluded the law was constitutional. The Court ruled Section 148.6 does not violate the First Amendment because the legislature can choose to give unique protections to certain classes of individuals. Therefore, it reversed the Court of Appeal decision and upheld the couples’ convictions.

Ninth Circuit Decision

Three years after the Stanistreet decision, the constitutionality of Section 148.6 was challenged in Federal Court in Chaker v. Crogan. Darren Chaker was arrested for obtaining his car from a mechanic without making payment for services rendered. Chaker later filed a claim for damages and sent a letter to the Police Department’s Internal Affairs Division under penalty of perjury, alleging police misconduct during the arrest. The San Diego District Attorney’s Office charged Chaker with violating Section 148.6 because there was no evidence of misconduct. Chaker was ultimately convicted of violating Section 148.6. Chaker’s appeals and petitions for habeas corpus in State Court were denied. Chaker then filed a federal habeas petition and his appeal made its way to the Ninth Circuit.

The Ninth Circuit analyzed the California Supreme Court’s reasoning in People v. Stanistreet but concluded that the government is not permitted to regulate speech based on viewpoint. The Court found that Section 148.6 impermissibly distinguished between a knowingly false statement against a peace officer and a knowingly false statement in favor of a peace officer, only penalizing the former, and therefore violated the First Amendment. Since Chaker’s conviction was obtained under a statute that violated the First Amendment, the conviction was overturned.

Takeaway

The California legislature has not repealed or revised the statute since the Chaker decision. Thus, Section 148.6 still requires law enforcement to give the unconstitutional advisement, which is unenforceable. This is unfortunate, since giving a false statement (whether for or against law enforcement) should be punished.  One alternate idea is to have complainants sign their statements under penalty of perjury.  If a complainant is later found to have given a false statement, whether it was intended to help or hinder law enforcement, s/he can then be prosecuted for perjury.  Alternately, the statute should be amended to make the provision content-neutral but to preserve the prohibition against giving false statements.

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