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Chaker v. Crogan
The Federal Court of A ppeals (Ninth Circuit) Holds Penal Code Section 148.6 Unconstitutional
November 9, 2005

The Ninth Circuit Court of A ppeal has just issued an opinion in Chaker v. Crogan , Case No. 03-56885, that California
Penal Code Section 148.6, knowingly filing a false complaint of peace officer misconduct, is unconstitutional.

PROCEDURA L BA CKGROUND

Darren David Chaker field a habeas corpus petition in federal court challenging his conviction by the San Diego District
A ttorney's Office for a violation of California Penal Code Section 148.6. He challenged the Penal Code provision as an
unconstitutional violation of his First A mendment rights. The District Court denied Chaker's petition and he appealed to
the Ninth Circuit Court of A ppeals. Jones & Mayer, through Michael R. Capizzi and Krista MacNevin Jee, submitted a
written amicus brief and orally argued the issue on behalf of the California State Sheriff's A ssociation, the California
Police Chief's A ssociation and the California Peace Officers'A ssociation.

FA CTUA L BA CKGROUND

El Cajon police officers arrested Chaker on A pril 9, 1996 for obtaining his car from a mechanic without making payment
for services rendered. Chaker later filed a claim for damages with the City of El Cajon and sent a letter to the Police
Department's Internal A ffairs Division under penalty of perjury, claiming that one of the arresting officers caused
injury to Chaker during the arrest. The San Diego District A ttorney's Office charged Chaker with a misdemeanor
violation of P.C. Section 148.6. The officers testified that no excessive force was used against Chaker during his arrest
or transportation. A witness at the time of Chaker's arrest confirmed that the arrest appeared routine. Chaker was
convicted of violating P.C. Section 148.6 on February 22, 1999. He filed several appeals and petitions for habeas corpus
in various State courts (all of which were denied), as well as the federal habeas petition which formed the basis for the
Ninth Circuit opinion discussed here. Chaker received credit for time served and was sentenced to public service and
three years probation. By the time of the Ninth Circuit appeal briefing, Chaker had already completed his probation.

THE COURT'S A NA LYSIS

The Court first made several preliminary findings that Chaker's case was properly before the Court: finding that it did
not lack jurisdiction simply because Chaker was no longer on probation, since he was on probation at the time of the
filing of his habeas petition; determining that the case was not moot because there was an on-going significant
collateral consequence to Chaker from the criminal conviction; summarily dismissing the claim that Chaker did not have
standing to challenge the constitutionality of his conviction; and finding that the statute of limitations did not bar
Chaker's petition because the defense had been waived by not being raised in the District Court.

On the main issue of the constitutionality of P.C. Section 148.6, the Court found that the Section is an unconstitutional
violation of the First A mendment. The Court considered and made note of the California Supreme Court decision
construing, and upholding as constitutional , Section 148.6 in People v. Stanistreet , 29 Cal. 4th 497, 502 (2002). 1 The
Chaker Court acknowledged the California Supreme Court's finding that the protection afforded to peace officers, and
not other individuals or public employees, was part of a unique statutory system of required investigation and record-
keeping as to complaints of peace officer misconduct. The Court still found Section 148.6 unconstitutional, relying on
the principle that the government is not permitted to regulate speech based on viewpoint. Section 148.6, it held,
impermissibly distinguishes between a knowingly false statement against a peace officer and a knowingly false
statement in favor of a peace officer, the latter being equally at fault as the former for wasting public resources by
interfering with an official investigation.

HOW THIS A FFECTS YOUR A GENCY

The decision in Chaker is not yet final. It may be several months, or much longer, before the decision does become
final. The District A ttorney is currently seeking a rehearing en banc, which, if granted, would allow the entire Ninth
Circuit panel of judges to rehear the matter and, hopefully, to overturn the three judge panel's recently issued decision
that is clearly erroneous. We will update you as soon as there is any ruling on the request for rehearing. If rehearing is
not granted, or is unsuccessful, we will certainly be urging the District A ttorney to appeal to the United States Supreme
Court and will update you on those activities, as well as any opportunity we may have to continue our amicus support on
this important issue. Until the opinion in Chaker is final, Section 148.6 is still constitutional under the California Supreme
Court decision in People v. Stanistreet , referenced above.

A s always, we urge that, prior to taking any legal action, you confer with your departments' attorney for legal advice
and guidance. If you wish to discuss this matter in greater detail, please don't hesitate to contact my office by phone
(714 - 446-1400) or e-mail (mjm@jones-mayer.com).

1Martin J. Mayer and Michael R. Capizzi , of Jones & Mayer participated as amicus curiae on this case as well, on behalf
of CSSA , CPCA and CPOA .

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