California Peace Officers’ Association

1455 Response Road, Suite 190, Sacramento, CA 95815

(916) 263-0541 Fax: (916) 263-6090
E-mail: cpoa@cpoa.org l web site: www.cpoa.org

CASE ALERT MEMORANDUM

May 18, 2006
Prepared by the firm of
JONES & MAYER
3777 North Harbor Boulevard
Fullerton, CA 92835
(714) 446-1400 Fax: (714) 446-1448

CLIENT ALERT MEMORANDUM

To: All Police Chiefs & Sheriffs

From: Martin J. Mayer, Michael R. Capizzi and Krista MacNevin Jee

PENAL CODE SECTION PROHIBITING FALSE CITIZENS’ COMPLAINTS AGAINST

PEACE OFFICERS UNCONSTITUTIONAL.

On May 15, 2006, the United States Supreme Court denied a petition for review of a
Ninth Circuit Court of Appeals decision holding California Penal Code Section 148.6
unconstitutional, Docket No. 05-1118.

Section 148.6 provides that “[e]very person who files any allegation of misconduct against
any peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part
2, knowing the allegation to be false, is guilty of a misdemeanor.” This specific provision
was challenged in the habeas writ petition that was the subject of Darren David Chaker v.
Alan Crogan and the People of the State of California.

Mr. Chaker was charged and convicted of a violation of Section 148.6. He challenged that
conviction in federal court. The Ninth Circuit found that Section 148.6 was unconstitutional
and the California Attorney General, on behalf of the County of San Diego, filed a petition
for review of that decision in the United States Supreme Court. We filed an amicus
curiae brief on behalf of the California State Sheriffs’ Association, the California Police
Chiefs’ Association, and the California Police Officers’ Association. The decision of
Supreme Court this week means that the Ninth Circuit’s opinion is final. The Section is
unconstitutional, according to the federal courts. Of course, that decision does not affect
the California Supreme Court’s prior determination in People v. Atkinson (Stanistreet),
29 Cal. 4th 497 (2002), that Section 148.6 is constitutional. These two decisions lead to
the result that Section 148.6 is constitutional according to the California State courts, but
is unconstitutional according to the federal courts.
Enforcement, however, of Section 148.6 could lead to civil rights lawsuits seeking substantial
damages in federal court. We recommend that you cease using the language in Section
148.6 in all citizens’ complaint forms.

HOW THIS AFFECTS YOUR AGENCY

Section 148.6 currently requires the following admonition as to citizens’ complaints against
peace officers filed with law enforcement agencies:
YOU HAVE THE RIGHT TO MAKE A COMPLAINT AGAINST A POLICE OFFICER
FOR ANY IMPROPER POLICE CONDUCT. CALIFORNIA LAW REQUIRES THIS
AGENCY TO HAVE A PROCEDURE TO INVESTIGATE CITIZENS’ COMPLAINTS.
YOU HAVE A RIGHT TO A WRITTEN DESCRIPTION OF THIS PROCEDURE. THIS
AGENCY MAY FIND AFTER INVESTIGATION THAT THERE IS NOT ENOUGH
EVIDENCE TO WARRANT ACTION ON YOUR COMPLAINT; EVEN IF THAT IS
THE CASE, YOU HAVE THE RIGHT TO MAKE THE COMPLAINT AND HAVE
IT INVESTIGATED IF YOU BELIEVE AN OFFICER BEHAVED IMPROPERLY.
CITIZEN COMPLAINTS AND ANY REPORTS OR FINDINGS RELATING TO
COMPLAINTS MUST BE RETAINED BY THIS AGENCY FOR AT LEAST FIVE
YEARS.

IT IS AGAINST THE LAW TO MAKE A COMPLAINT THAT YOU KNOW TO BE

FALSE. IF YOU MAKE A COMPLAINT AGAINST AN OFFICER KNOWING THAT
IT IS FALSE, YOU CAN BE PROSECUTED ON A MISDEMEANOR CHARGE.

I have read and understood the above statement.

--------------------

Complainant

Your agency will need to review the forms used for citizens’ complaints against peace
officers, in order to modify the language, above, which is contained within them. The
forms should no longer refer to the fact that a knowingly false claim against an officer can
be prosecuted as a misdemeanor.

Until your forms can be changed, any such language on your forms should be stricken, in
order to avoid a challenge to your use of such language in federal court.

We urge that you confer with your agency’s legal counsel before relying on the information
set forth above, and in order to determine exactly what course of action should be taken in
response to the above decision. If you wish to discuss this matter in greater detail please
feel free to contact our office at 714- 446-1400 or by e-mail to Martin Mayer at mjm@
jones-mayer.com.