Posted on 11/07/2005 11:49:31 AM PST by radar101
Last Thursday, that wacky band of judicial jokesters known as the United States Court of Appeals for the 9th Circuit issued a decision that apparently makes it okay to lie in an official report concerning the alleged misconduct of a police officer.
The decision invalidated a California statute passed after the Rodney King incident in 1991. The California law made it a criminal offense to give a false statement when making a report of the misconduct of a police officer. A Beverly Hills man, Darren Chaker, had complained that a police officer from El Cajon had used unnecessary force while arresting him. Chaker’s statement was found to be false, and the San Diego County District Attorney’s Office filed a criminal complaint against him, which resulted in a conviction. Chaker appealed his conviction to the California Supreme Court, which upheld the conviction, and then to the 9th Circuit, which overturned it.
The unanimous opinion from the three judge panel that heard the case included the reasoning that the California statute criminalizes false speech that condemns police conduct, but does not address false speech that praises police conduct. Because the law discriminates based on the speaker’s viewpoint, the law “turns the First Amendment on its head” and was therefore unconstitutional. The San Diego DA can now ask the Circuit Court to reconsider the decision, and can appeal again to the United States Supreme Court for the final word.
The logic here, or rather the lack of it, is just silly. Using the standard set by this opinion, one should be censured for making an insincere or untrue compliment as quickly as for making an unjustified criticism. Why not prosecute the President for his praise of the director of FEMA when he told him, “You’re doing a heckuva job, Brownie.” It was evident, even at the time, that Mr. Brown was not doing a “heckuva job.”
Filing misconduct complaints against police officers is a very common tactic, often used and encouraged by defense attorneys so as to put the cops on the defensive. If the criminal case that flows from the complaint is prosecuted aggressively, the defendant can protest that the police and prosecutor are retaliating against him. It is also a black mark against the officer. Regardless of the final disposition of the complaint, an officer with a list of complaints filed against him is not going to look good alongside an officer that has no complaints. Like having an extensive arrest record, the presumption of innocence doctrine doesn’t necessarily apply outside of the courtroom.
The decision also removes the police officer from the equal protection of the law. An officer that makes a false report of criminal conduct by a citizen is not only going to be prosecuted, but will also lose his job. The citizen who makes a false report of criminal conduct by a police officer (most acts of police misconduct, especially those directed at a particular person, constitute a civil rights violation as well as other criminal acts) has committed no crime, according to the 9th Circuit.
This is not a First Amendment issue, as the court maintains. The First Amendment insures the right to petition the government for redress of grievances, and to speak one’s mind without fear of retribution. In writing this column, I am exercising my First Amendment rights to protest the actions of the appeals court by saying that I think they are wrong, and my reasons for thinking that way. I have the freedom to do this. I do not have the freedom to say that, for instance, I also know that the judges on the court are smoking dope and beating their wives (unless I have some foundation for that belief, which I do not). One statement is an opinion. The other is a falsehood that has the potential to cost someone their freedom and ruin their career. There are, and should be, protections from this kind of conduct. But according to the 9th Circuit, these protections do not extend to the police.
The 9th Circuit is by far the most liberal of the eleven circuits, and has dominion over most of the western states. It is also the leader among the circuits, by a considerable margin, in producing decisions that are overturned by the U.S. Supreme Court. Since it’s not very likely that the court will reconsider their opinion and publish a new one along the lines of “My bad – this is what we really meant,” we’ll have to wait and see if the new Roberts court hears the case and renders a better decision than this one. Until then, it’s apparently okay to make all the false reports you please – as long as you’re talking about cops.
U.S. Court of Appeals for the Ninth Circuit decision in the case of Chaker v. Crogan, No. 03-56885
Tim Dees is the editor-in-chief of Officer.com. Dees worked in law enforcement for 15 years with the City of Reno, Nevada and later with the Pyramid Lake Paiute Tribe of Nevada serving primarily as a uniformed patrol officer and sergeant. He has also served as a field training officer in DUI enforcement, as an instructor at the police academy and in-service training programs, and as a drug influence recognition expert. From 1994 to 2001, he was a criminal justice professor at colleges in Wisconsin, West Virginia, Georgia, and Oregon.
I hate to say it, but this is one of the few decisions from the 9th CCA that I happen to agree with.
You think it should be ok to lie?
"An officer that makes a false report of criminal conduct by a citizen is not only going to be prosecuted, but will also lose his job. "
LOL! BS! "Transferred" or "suspended with pay", maybe, but "lose his job"?? Rarely!
You have go to be kidding. Please explain.
See post # 6
Oh I see where you're coming from. OK I understand now.
You will perhaps forgive me if this seems like an ad hominem attack, but, following your logic...
exactly why shouldn't my sister's 16 year old daughter be able to file a false claim of rape against you, without fear of it costing her?
We can't have her feeling intimidated by you... can we?
Even if the complaint is not true?
I think you are comparing apples and oranges. No one is saying that you can't file a complaint against an officer, you can't file a FALSE complaint and get away with it.
False claims of police brutality from criminals are at least as common as false claims of torture by terrorists and are done for the same reason. These claims inflame the communities against the police and force the police to defend themselves from these lies rather than protecting the citizenry.
"You shall not bear false witness against your neighbor."
If the Ten Commandments were hanging on the wall in the 9th Circus, the panel would not have had so much difficulty understanding the basis for the law in question.
That kind of logic makes it OK for someone who doesn't like you to make false claims of pedophilia against you, "just because".
If the cops are bad, hang them. If they aren't, but you just hate that they caught you doing something wrong, and you decide to lie to take the heat off of you and put it on the cops, hang you.
I spent 24 years in the military and would hate to have a cops job, especially with a few giving the rest a black eye and making it OK to trash them all.
"False claims of police brutality from criminals are at least as common as false claims of torture by terrorists and are done for the same reason. These claims inflame the communities against the police and force the police to defend themselves from these lies rather than protecting the citizenry."
Thank you - you are correct. These tactics are used every day against LEO.
Perhaps beginning with the definition of 'is' and now shaving lie, falsehood, untruth and error, we Americans will speak a bit more carefully. I daily damn SLimbaugh for uttering the 'lie' homeopathy for profit.
Occifers are, er, "mistooken" a worrisome proportion of the time, and will scratch one another's backs by whitewashing. 2 occifers lying in synch vs. 1 citizen and the citizen will probably not just lose, but be found criminally liable.
If the cops cant stand the heat, get a new job.
It was already illegal to knowingly swear a false charge against anybody. This law simply set an elephant upon one side of the balance. The court demands that there be a similar elephant on the other side, or no go.
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