Chaker v. CroganChaker v. Crogan
- Reporters:
- Before:
- Procter Hug Jr., Harry Pregerson, Marsha S. Berzon
FOR PUBLICATION
Appeal from the United States District Court for the Southern District of California Barry T. Moskowitz, District Judge, Presiding
Opinion by Judge Pregerson
COUNSEL
Kelly M. Rand, Deputy District Attorney, San Diego, California, for the respondents-appellees.
Mark D. Rosenbaum (argued), Alan L. Schlosser, Los Angeles, California, and Daniel P. Tokaji (briefed), Columbus, Ohio, for ACLU of San Diego and Imperial Counties, ACLU of Southern California and ACLU of Northern California.
Everett L. Bobbitt (briefed), Bobbitt & Pinckard, San Diego, California, for El Cajon Police Officers Assn., San Diego County Deputy Sheriff‘s Assoc. and San Diego Police Officers Assn.
Michael D. Schwartz (briefed), Ventura, California, for California District Attorney‘s Assoc.
Christopher D. Lockwood (argued), Joseph Arias (briefed), Arias, Lockwood & Gray, San Bernardino, California, for City of San Bernardino.
Alison Berry Wilkinson (briefed), Rains, Lucia & Wilkinson, Pleasant Valley, California, for Peace Officers Research Assoc. of California Legal Defense Fund.
Kent S. Scheidegger (briefed), Sacramento, California, for Criminal Justice Legal Foundation.
Michael R. Capizzi (argued), Krista McNevin Jee (briefed), Fullerton, California, for California State Sheriff‘s Assn., California Police Chief‘s Assn. and California Peace Officers Assn.
OPINION
Darren David Chaker appeals the district court‘s denial of his habeas corpus petition brought under
As discussed below, a formal complaint of peace officer misconduct triggers a mandatory investigation conducted by the peace officer‘s employing agency. Within the limited context of that investigation, section 148.6 criminalizes knowingly false speech critical of peace officer conduct, but leaves unregulated knowingly false speech supportive of peace officer conduct. Because we conclude that the statute impermissibly discriminates on the basis of a speaker‘s viewpoint in violation of the First Amendment, we reverse the district court and grant the petition.
FACTUAL AND PROCEDURAL BACKGROUND
On April 9, 1996, El Cajon Police Officers Bill Bradberry and Terry Johnston arrested Chaker for theft of service for retrieving his car from a mechanic without paying. Several months later, on August 15, 1996, Chaker filed a claim for damages form with the City of El Cajon alleging that Officer Bradberry injured him during the arrest. Specifically, Chaker alleged that Officer Bradberry hit him in the ribs, twisted his wrist, and failed to secure Chaker in the police vehicle with a seat belt so that Chaker struck his head during sudden stops.1 Chaker also sent a letter directly to the El Cajon Police Department Internal Affairs Division, dated March 23, 1997, making the same complaint. In addition to the preceding allegations, Chaker alleged that he was strip-searched by Detective Bradberry. Chaker signed the March letter under penalty of perjury.
In March 1998, the San Diego District Attorney‘s office filed a misdemeanor criminal complaint against Chaker in state court. The complaint charged Chaker with the misdemeanor offense of filing a knowingly false allegation of peace officer misconduct in violation of
At trial, the court admitted a civil complaint in a lawsuit filed by Chaker against Officer Bradberry. The complaint contained a claim for slander arising out of an encounter between Officer Bradberry and
On February 22, 1999, the jury found Chaker guilty of violating
Chaker appealed his conviction to the San Diego County Appellate Division of the Superior Court. That court affirmed his conviction. Rather than continue his direct appeal, Chaker filed a habeas corpus petition in Superior Court, and then another in the California Supreme Court, alleging ineffective assistance of both trial and appellate counsel. Both courts denied his petitions. Chaker filed a second habeas petition in the California Supreme Court on December 26, 2000, this time alleging denial of the right to self-representation. This petition was denied as well.
On October 23, 2000, Chaker filed a pro se habeas petition in federal district court alleging various problems with his state conviction. While his federal habeas petition was pending before the district court, Chaker filed his third state habeas petition with the California Supreme Court on September 10, 2001.
In his third state habeas petition, Chaker raised for the first time a First Amendment challenge to section 148.6. This petition was also denied, and the order denying the petition cited California cases concerning procedural default. After the California Supreme Court rejected Chaker‘s First Amendment challenge, he raised the claim in his February 25, 2002, amended federal habeas petition.
On November 8, 2002, Chaker moved for summary judgment on his First Amendment claim. The magistrate judge issued a Report and Recommendation recommending denial of Chaker‘s habeas petition. The district court adopted in part the conclusions of the magistrate judge, denied the petition, and issued a limited certificate of appealability on Chaker‘s First Amendment claim.
ANALYSIS
I. Procedural Issues and Standard of Review
The state and amicus curiae supporting the state raise several issues potentially barring our review of Chaker‘s habeas petition. The state argues that we lack jurisdiction because Chaker was no longer serving his probation at the time of this appeal. The state also contends that the present appeal is moot because Chaker is not suffering any significant collateral consequences from his conviction. Finally, amicus curiae Criminal Justice Legal Foundation (“CJLF“) argues that because Chaker failed to raise his First Amendment
A. Jurisdiction
[1] The state argues that we should dismiss Chaker‘s petition for lack of jurisdiction because Chaker is no longer on probation, and thus is not “in custody” for habeas purposes. The state is correct that “[f]or a federal court to have jurisdiction over a habeas petition filed by a state prisoner, the petitioner must be ‘in custody.’ ” Zichko v. Idaho, 247 F.3d 1015, 1019 (9th Cir. 2001). Nonetheless, if a petitioner is in custody at the time he files his federal habeas petition, his subsequent release from custody does not deprive the court of its jurisdiction. See Carafas v. LaVallee, 391 U.S. 234, 238 (1968); United States v. Spawr Optical Research, Inc., 864 F.2d 1467, 1470 (9th Cir. 1988). Furthermore, a petitioner is “in custody” for the purposes of habeas jurisdiction while he remains on probation. Id.; see also Jackson v. Coalter, 337 F.3d 74, 79 (1st Cir. 2003). Thus, because Chaker was still serving his probation on the date he filed his habeas petition in federal court, we have jurisdiction over this appeal.
B. Mootness
[2] The state next argues that this case is moot, contending that Chaker is no longer suffering any significant collateral consequences as a result of his misdemeanor criminal conviction. This argument is foreclosed by Chacon v. Wood, 36 F.3d 1459, 1463 (9th Cir. 1994), overruled on other grounds,
C. Statute of Limitations
Federal habeas petitions ordinarily must be filed within one year of the “date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.”
Chaker‘s conviction was affirmed on direct review by the San Diego County Appellate Division of the Superior Court on October 15, 1999. He did not directly appeal that decision. Thus, Chaker‘s conviction became final after the thirty day time period for filing a notice of appeal lapsed. See
Even so, the state failed to raise a statute of limitations defense to Chaker‘s First Amendment claim in federal district court, thereby waiving it. See Nardi v. Stewart, 354 F.3d 1134, 1141 (9th Cir. 2004) (holding that the statute of limitations set forth in
D. Procedural Default and Standard of Review
Generally, under the provisions of the Antiterrorism and Effective Death Penalty Act, a federal habeas court reviews a state court‘s decision to determine whether the state decision was ” ‘contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States.’ ” Lockyer v. Andrade, 538 U.S. 63, 71 (2003) (quoting
In this case, however, Chaker‘s First Amendment claim was never decided on the merits in a state court. Rather, the California Supreme Court denied Chaker‘s First Amendment claim without opinion, citing cases relating to procedural default.
Procedural default normally constitutes an adequate and independent state ground precluding federal court review of a habeas petition. See Zichko, 247 F.3d at 1021. But the state did not raise the issue of procedural default in district court or on appeal. Consequently, the state waived its procedural default defense by failing to raise the issue in response to Chaker‘s habeas petition. See Franklin v. Johnson, 290 F.3d 1223, 1229 (9th Cir. 2002). Moreover, though we may sua sponte dismiss Chaker‘s petition as procedurally barred, see Vang v. Nevada, 329 F.3d 1069, 1073 (9th Cir. 2003), we decline to do so as “the state provides no explanation whatsoever
Thus, although we are not precluded from ruling on the merits of Chaker‘s claim due to his procedural default, there is no state court ruling on the merits of Chaker‘s First Amendment claim. There is therefore no state decision to review to determine whether the decision was “contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States.”
In such a circumstance, we review the district court‘s decision de novo without the deference usually accorded state courts under
II. California Penal Code section 148.6 and the First Amendment
A. California Penal Code section 148.6
[3]
In Pena, the California Court of Appeal noted that
Allowing police officials to prosecute a citizen for filing a complaint against an officer . . . by using the provisions of
Penal Code section 148.5 would have the tendency to “chill” the willingness of citizens to file complaints, particularly on weak evidence and when the same entity against which the complaint is made will be investigating the accusations.
Pena, 96 Cal. App. 3d at 83. The court therefore concluded that “the Legislature did not intend citizens’ complaints to a law enforcement entity concerning the conduct of that entity or its officers . . . to be within the definition of a police report for the purposes of
According to the California Supreme Court, the sanction imposed by section 148.6 is unique in California‘s statutory scheme. As the California Supreme Court recognized, “section 148.6 gives protection to peace officers that the Legislature has not given to others,” observing that “[i]t is not a crime to knowingly make such an accusation against a firefighter, a paramedic, a teacher, an elected official, or anyone else.” Id. (internal quotation marks and citation omitted).
Similarly, California law imposes a unique complaint process and record-keeping requirement for complaints of peace officer misconduct. Specifically,
[t]he Legislature noted that since the Rodney King incident in March 1991, law enforcement agencies throughout the state had ‘revised their citizen complaint procedures to promote greater accountability on the part of their line officers.’ (Assem. Com. on Public Safety, Analysis of Assem. Bill No. 1732 (1995-1996 Reg. Sess.).) However, a “glaringly negative side-effect which has resulted [was] the willingness on the part of many of our less ethical citizens to maliciously file false allegations of misconduct against officers in an effort to punish them for simply doing their jobs.” (Ibid.) Against this backdrop, the Legislature enacted section 148.6, in an attempt to curb a perceived rising tide of knowingly false citizens’ complaints of misconduct by officers performing their duties.
San Diego Police Officers Ass‘n. v. San Diego Police Dep‘t., 76 Cal. App. 4th 19, 23 (1999). Numerous law enforcement agencies throughout the state supported the enactment of section 148.6.8
B. Viewpoint Discrimination and the First Amendment
Chaker argues that section 148.6 impermissibly discriminates on the basis of viewpoint in violation of the First Amendment. While he concedes that knowingly false speech regarding a public official is generally unprotected by the First Amendment, see Garrison v. Louisiana, 379 U.S. 64 (1964); New York Times Co. v. Sullivan, 376 U.S. 254 (1964), he argues that the statute impermissibly singles out speech critical of peace officers for special criminal sanction.9 Because section 148.6 applies only to the filing of a formal complaint of peace officer misconduct with an agency employing peace officers, our First Amendment analysis focuses solely on the application of section 148.6 within the context of the complaint investigation process.
[5] The protections afforded by the First Amendment, made applicable to the States by the Fourteenth Amendment, are not absolute and the government may regulate certain categories of expression consistent with the Constitution. See Virginia v. Black, 538 U.S. 343, 358 (2003). For example, “fighting words,” defamation, and obscenity, are “not within the area of constitutionally protected speech,” R.A.V. v. City of St. Paul, 505 U.S. 377, 383 (1992) (citations omitted), because “such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth
[6] Nevertheless, these categories of speech are not rendered “entirely invisible to the Constitution, so that they may be made the vehicles for content discrimination unrelated to their distinctively proscribable content.” R.A.V., 505 U.S. at 383-84; see also Black, 538 U.S. at 361. “Thus, the government may proscribe libel; but it may not make the further content discrimination of proscribing only libel critical of the government.” R.A.V., 505 U.S. at 384; see id. (rejecting the notion that “a city council could enact an ordinance prohibiting only those legally obscene works that contain criticism of the city government or, indeed, that do not include endorsement of the city government“).
The leading case establishing the First Amendment‘s application to proscribable classes of speech is R.A.V.. In R.A.V., the Supreme Court considered the constitutionality of a Minnesota statute banning certain symbolic expression, including cross burning, when done with the knowledge that such conduct would ” ‘arouse[ ] anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.’ ” 505 U.S. at 380 (quoting Minnesota statute). The Court first recognized that, as construed by the Minnesota Supreme Court, the statute only reached “fighting words,” thereby limiting the statute‘s reach to a category of speech generally unprotected by the First Amendment. See id. at 380-81.
Even with the limiting construction, however, the Court concluded that the statute was an impermissible content-based regulation of speech. The Court noted that “[d]isplays containing abusive invective, no matter how vicious or severe, are permissible unless they are addressed to one of the specified disfavored topics,” such as race, color, creed, religion, or gender. Id. at 391. The Court further explained that those “who wish to use ‘fighting words’ in connection with other ideas — to express hostility, for example, on the basis of political affiliation, union membership, or homosexuality — are not covered. The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects.” Id.
The Court further held that the statute impermissibly discriminated on the basis of viewpoint. See id. (“In its practical operation, moreover, the ordinance goes even beyond mere content discrimination, to actual viewpoint discrimination.“). The Court reasoned that
Displays containing some words — odious racial epithets, for example — would be prohibited to proponents of all views. But “fighting words” that do not themselves invoke race, color, creed, religion, or gender — aspersions upon a person‘s mother, for example — would seemingly be usable ad libitum in the placards of those arguing in favor of racial, color, etc., tolerance and equality, but could not be used by those speakers’ opponents. One could hold up a sign saying, for example, that all ‘anti-Catholic bigots’ are misbegotten; but not that all ‘papists’ are, for that would insult and provoke violence ‘on the basis of religion.’ St. Paul has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules.
Finally, the Court held that the statute was not narrowly tailored to meet the state‘s compelling interest in ensuring “the
The Court revisited R.A.V. in Virginia v. Black. In Black, two defendants challenged the constitutionality of a Virginia statute making it a crime to burn a cross with the intent to intimidate, contending that the statute fit within the Court‘s holding in R.A.V.. See Black, 538 U.S. at 360-63. In rejecting the defendants’ First Amendment challenge, the Court noted first that “some types of content discrimination [do] not violate the First Amendment.” Id. at 361. For example, where “the basis for the content discrimination consists of the very reason the entire class of speech at issue is proscribable, no significant danger of idea or viewpoint discrimination exists.” Id. at 361-62 (quoting R.A.V., 505 U.S. at 388).
The Court distinguished its decision in R.A.V., and explained that the Virginia statute was directed at all cross burning done with the intent to intimidate. See id. at 362. Because the Virginia statute did not distinguish between intimidation based on a victim‘s race, gender, or religion, unlike the ordinance at issue in R.A.V., there was no significant threat that the state “single[d] out for opprobrium only that speech directed toward ‘one of the specified disfavored topics.’ ” Id. (quoting R.A.V., 505 U.S. at 391).
The Court also concluded that the Virginia statute did not violate the First Amendment “because burning a cross is a particularly virulent form of intimidation.” Id. at 363. It therefore concluded that “just as a State may regulate only that obscenity which is the most obscene due to its prurient content, so too may a State choose to prohibit only those forms of intimidation that are most likely to inspire fear of bodily harm.” Id.
[7] Just as in R.A.V., the category of speech at issue in this case — knowingly false speech regarding a public official — is “not within the area of constitutionally protected speech.” R.A.V., 505 U.S. at 383. As the Supreme Court made clear in its landmark decision in New York Times, a public official may recover damages for a defamatory falsehood if he or she can prove “that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” 376 U.S. at 279-80. That same standard has been applied in the context of state criminal libel laws where a public official is concerned. See Garrison, 379 U.S. at 74 (“The constitutional guarantees of freedom of expression compel application of the [New York Times] standard to the criminal remedy.“). Indeed, it is well-established that knowing falsehoods are constitutionally unprotected because they are “at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected.” Id. at 75.
[8] Thus, it is clear that the state may prohibit knowingly false speech made in connection with the peace officer complaint process. As the state correctly points out, knowingly false complaints of peace officer misconduct cause valuable state resources to be expended investigating false claims rather than investigating valid claims. See Stanistreet, 29 Cal. 4th at 509 (“This requirement of an investigation [imposed by
[9] Nevertheless, following both R.A.V. and Black, we must determine whether
[10] We begin our analysis by recognizing that a knowingly false assertion made by a peace officer or witness in support of a peace officer during the course of a misconduct investigation, like a knowingly false complaint of misconduct, is equally “at odds with the premises of democratic government.” Garrison, 379 U.S. at 75. In most cases, “it inevitably will come down to the word of the citizen against the word of the police officer or officers, in which case law enforcement authorities will conduct an investigation to determine who is telling the truth.” Stanistreet, 29 Cal. 4th at 513-14 (Werdegar, J., concurring). Consequently, a peace officer or witness who lies during an investigation is equally to blame for wasting public resources by interfering with the expeditious resolution of an investigation. As one California court noted, the state developed its citizen complaint procedures “to promote greater accountability on the part of [its] line officers.” San Diego Police Officers Ass‘n., 76 Cal. App. 4th at 23 (quoting Assem. Comm. on Public Safety, Analysis of Assem. Bill No. 1732 (1995-1996 Reg. Sess.). Section 148.6, however, undermines that goal by holding only citizen complainants accountable for their knowing falsehoods, while leaving unregulated the knowingly false speech of a peace officer or witness.
[11] The state‘s asserted interest in saving valuable public resources and maintaining the integrity of the complaint process is therefore called into question by its choice to prohibit only the knowingly false speech of those citizens who complain of peace officer conduct. See City of Ladue v. Gilleo, 512 U.S. 43, 52 (1994) (“Exemptions from an otherwise legitimate regulation of a medium of speech . . . may diminish the credibility of the government‘s rationale for restricting
The statute‘s under-inclusiveness is particularly troublesome in this case because section 148.6 is necessarily limited to criticism of government officials — peace officers. “Suspicion that viewpoint discrimination is afoot is at its zenith when the speech restricted is speech critical of the government,” Ridley v. Mass. Bay Transp. Auth., 390 F.3d 65, 86 (1st Cir. 2004), because “[c]riticism of government is at the very center of the constitutionally protected area of free discussion,” Rosenblatt v. Baer, 383 U.S. 75, 85 (1966). See also City of Houston v. Hill, 482 U.S. 451, 461 (1987) (“[T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.“); New York Times, 376 U.S. at 270 (recognizing the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials“). The imbalance generated by section 148.6—i.e., only individuals critical of peace officers are subject to liability and not those who are supportive—therefore turns the First Amendment on its head.
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.
[12] For these reasons, we find the Supreme Court‘s analysis in R.A.V. controlling. Like the ordinance at issue in R.A.V., section 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.
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.
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.
CONCLUSION
[13] Because Chaker‘s conviction was obtained under a statute that runs afoul of the First Amendment, we reverse the judgment of the district court, grant Chaker‘s petition for habeas corpus, and remand for issuance of the writ.
REVERSED AND REMANDED.
Notes
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.
Chaker never signed this advisory before making his complaint. Rather, he sent in an informal letter to the El Cajon Police Department, signed under penalty of perjury, complaining of Officer Bradberry‘s conduct. It was Chaker‘s letter that formed the basis of his prosecution under section 148.6.
Chaker argued that signing the advisory was an element of the offense, and he challenged his conviction on that basis in both his state and federal habeas petitions. But the state courts and the district court ruled against Chaker on this claim. Accordingly, we presume for the purposes of this appeal that signing the advisory was not an essential element of the offense.
Every peace officer who files any report with the agency which employs him or her regarding the commission of any crime or any investigation of any crime, if he or she knowingly and intentionally makes any statement regarding any material matter in the report which the officer knows to be false, whether or not the statement is certified or otherwise expressly reported as true, is guilty of filing a false report punishable by imprisonment in the county jail for up to one year, or in the state prison for one, two, or three years. This section shall not apply to the contents of any statement which the peace officer attributes in the report to any other person.
Every person who upon any trial, proceeding, inquiry, or investigation whatever, authorized or permitted by law, offers in evidence, as genuine or true, any book, paper, document, record, or other instrument in writing, knowing the same to have been forged or fraudulently altered or ante-dated, is guilty of felony.
Every person guilty of preparing any false or ante-dated book, paper, record, instrument in writing, or other matter or thing, with intent to produce it, or allow it to be produced for any fraudulent or deceitful purpose, as genuine or true, upon any trial, proceeding, or inquiry whatever, authorized by law, is guilty of felony.