LOS ANGELES POLICE PROTECTIVE
S275272
IN THE SUPREME COURT OF CALIFORNIA
November 10, 2025
Second Appellate District, Division Seven, B306321; Los Angeles County Superior Court, BC676283
Justice Groban authored the opinion of the Court, Chief Justice Guerrero and Justices Corrigan, Kruger, Evans, and Jenkins* concurred. Justice Liu filed a dissenting opinion.
* Retired Associate Justice of the Supreme Court, assigned by the Chief Justice pursuant to
LOS ANGELES POLICE PROTECTIVE LEAGUE v. CITY OF LOS ANGELES
S275272
Opinion of the Court by Groban, J.
California requires law enforcement agencies to investigate complaints against peace officers. (See
This is not the first time we have considered this issue. In People v. Stanistreet (2002) 29 Cal.4th 497 (Stanistreet), the defendants argued that section 148.6(a) violated the rule set forth in R. A. V. v. St. Paul (1992) 505 U.S. 377 (R. A. V.), which generally requires that courts apply heightened
proscribable category of speech. (See Stanistreet, at p. 507.) More specifically, the defendants argued that heightened scrutiny was warranted under R. A. V. because section 148.6(a) “appl[ied] one defamation rule to citizen complaints against peace officers, and a different rule to those made against other public officials.” (Stanistreet, at p. 507.) We agreed that section 148.6(a) constituted a content-based regulation within a proscribable category of speech, which we described as “knowingly false statements of fact.” (Stanistreet, at p. 508.) We concluded, however, that the statute fell within various categories of content discrimination within a proscribable class that R. A. V. had recognized as generally permissible.
After Stanistreet was decided, multiple federal decisions rejected its analysis and held that section 148.6(a) violated the First Amendment. (See Chaker v. Crogan (9th Cir. 2005) 428 F.3d 1215 (Chaker); Hamilton v. City of San Bernardino (C.D.Cal. 2004) 325 F.Supp.2d 1087, 1091 (Hamilton II);2 accord Eakins v. Nevada (D.Nev. 2002) 219 F.Supp.2d 1113 (Eakins) [adopting Hamilton I‘s reasoning in striking down Nevada statute making it a mistake to file knowingly false allegations of misconduct against a peace officer].) In the wake of those decisions, the City of Los Angeles (the City) entered into a consent decree barring it from requiring complainants to sign
the advisory described in section 148.6(a)(2). The consent decree expired in 2013, but the City still does not require a signed advisory from complainants.
In 2017, the Los Angeles Police Protective League (LAPPL) filed the current action seeking an injunction that would require the City to comply with section 148.6(a)(2)‘s advisory requirement. Relying on the reasoning of the federal authorities cited above, the City argued that section 148.6(a) was an unconstitutional regulation of speech. The trial court concluded it was bound by Stanistreet and enjoined the City from accepting any complaint alleging misconduct by a peace officer unless the complainant had signed the advisory required by section 148.6(a)(2). The Court of Appeal affirmed, concluding (as the trial court had) that it was bound by Stanistreet. (See Los Angeles Police Protective League v. City of Los Angeles (2022) 78 Cal.App.5th 1081, 1088.) As a result of the ruling, the City was ordered to advise complainants that it was a crime to file a knowingly false claim of misconduct against a peace officer despite the fact that multiple federal decisions had found that criminal provision to be
In the intervening years since Stanistreet was decided, the United States Supreme Court has issued additional guidance on First Amendment issues that relate both to R. A. V. and, more generally, prohibitions on knowing falsehoods. This new guidance compels us to reconsider our decision in Stanistreet. In Davenport v. Washington Educ. Ass‘n (2007) 551 U.S. 177 (Davenport), the court discussed when speech restrictions that
fall outside ” ‘the general prohibition’ ” (id. at p. 188) on content-based regulations may nonetheless warrant heightened constitutional scrutiny. The court‘s analysis indicates that when content-based regulation occurs within a proscribable class, the key inquiry is whether the statute risks “impermissibly distort[ing] the marketplace of ideas” (id. at p. 189) by ” ’ “driv[ing] certain ideas or viewpoints” ’ ” from the public sphere (id. at p. 188; accord R. A. V., supra, 505 U.S. at pp. 387-388). And in United States. v. Alvarez (2012) 567 U.S. 709 (Alvarez), the court announced for the first time that even well-intentioned prohibitions on knowing falsehoods can trigger heightened constitutional scrutiny if they go too far in chilling protected speech. (See id. at pp. 709, 723, plur. opn. of Kennedy, J. [criminal statute that targets “falsity and nothing more” would risk “cast[ing] a chill [on speech that] the First Amendment cannot permit“]; id. at p. 736, conc. opn. of Breyer, J. [statute criminalizing any knowingly false claim of receiving military award raised sufficient “risk of chilling” to warrant heightened scrutiny].) Most recently, in Free Speech Coalition, Inc. v. Paxton (2025) 606 U.S. 461 (Free Speech Coalition), the court held that content-based restrictions that regulate unprotected speech are subject to heightened constitutional scrutiny if they have an “incidental burden” on protected speech. (Id. at p. 495; see id. at pp. 482-483.)3
The fundamental principle we derive from these subsequent cases, read in conjunction with R. A. V., is that when assessing a statute like section 148.6(a) — which discriminates on the basis of content within a proscribable class of falsity (defamation) — courts must evaluate whether the risk of ” ‘driv[ing] certain ideas or viewpoints’ ” (R. A. V., supra, 505 U.S. at p. 387) from the public sphere is so “inconsequential” (Davenport, supra, 551 U.S. at p. 188) that no further constitutional scrutiny is warranted. Stated differently, courts should ask whether the content-based regulation of proscribable speech is structured in such a manner that it either disfavors certain subjects or
Applying those principles here, we conclude that section 148.6(a)‘s criminal provision (
There is still a question under United States Supreme Court jurisprudence as to whether strict or intermediate scrutiny should apply to a content-based regulation like section 148.6(a), which discriminates within a proscribable class of knowing falsehoods (defamation) in a manner that incidentally burdens protected speech. (Compare R. A. V., supra, 505 U.S. at p. 395 [applying strict scrutiny to a viewpoint-based regulation that discriminated within a proscribable class of speech] with Free Speech Coalition, supra, 606 U.S. at pp. 482-483 [content-based restrictions that regulate unprotected speech but incidentally burden protected speech are subject to intermediate scrutiny]; compare Alvarez, supra, 567 U.S. at p. 724, plur. opn. of Kennedy, J. [certain forms of regulations on false statements of fact should be subject to strict scrutiny] with id. at pp. 730-731, conc. opn. of Breyer, J. [restrictions on false statements of fact should generally be reviewed under intermediate scrutiny].) For the purposes of this case, however, we need not resolve that question because we conclude that section 148.6(a) cannot survive even the less exacting standard of intermediate scrutiny, which requires that “a law must be ‘narrowly tailored to serve a significant governmental interest.’ ” (Packingham v. North Carolina (2017) 582 U.S. 98, 105-106 (Packingham).)
Applying that test here, we conclude that while the Legislature had a legitimate and significant interest in remedying the harmful effects of abusive false claims of police misconduct, section 148.6(a) is not narrowly tailored to meet those objectives. Instead, the statute establishes an ill-defined, asymmetrical criminal provision (see
disincentive for citizens to file” even well-intentioned complaints of police misconduct. (Hamilton II, supra, 325 F.Supp.2d at p. 1094.) Thus, while we reaffirm Stanistreet‘s conclusion that the Legislature is authorized to take steps to protect the integrity of the peace officer complaint process (see Stanistreet, supra, 29 Cal.4th at p. 510), we part ways with Stanistreet by now concluding that, as presently drafted, section 148.6(a) ” ‘burdens substantially more speech than is necessary to further the government‘s legitimate interests.’ ” (Packingham, supra, 582 U.S. at p. 105 [describing intermediate scrutiny standard].)
I. BACKGROUND
A. Regulation of Complaints Against Peace Officers
Section 832.5 requires “[e]ach department . . . that employs peace officers” to “establish a procedure to investigate complaints by members of the public against the personnel of these departments . . . , and . . . [to] make a written description of the procedure available to the public.” (
separately provides that any law enforcement agency accepting an allegation of misconduct against a peace officer “shall require the complainant to read and sign” an advisory explaining that California provides citizens “the right to make a complaint against a police officer for any improper police conduct” and requires law enforcement agencies to investigate such complaints. (
Prior to section 148.6(a)‘s enactment, a different statute “made (and still makes) it a misdemeanor to report a felony or misdemeanor knowing the report to be false. (
The legislative materials accompanying the assembly bill that added section 148.6(a) explained that “[s]ince the Rodney King incident in March 1991,
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.”
personnel jackets. . . . [M]ost of the officers find they have very little recourse against the complaints.”6 (Assem. Com. on Public Safety, Analysis of Assem. Bill No. 1732 (1995-1996 Reg. Sess.) April 18, 1995, at p. 1 (Assem. Com. on Public Safety Analysis); see Stanistreet, supra, 29 Cal.4th at pp. 502-503.)
The arguments in favor of the bill similarly explained that section 148.6(a) would “finally address[] the issue of knowingly making false allegations of misconduct against any peace officer. These false accusations can adversely affect the officer‘s position within the Department, and this legislation will discourage such false reports. [¶] . . . [¶] Yearly hundreds of unfounded and false complaints are filed against Peace Officers. In the Los Angeles County Sheriff‘s Department alone, over 500 complaints were received of which approximately 60 to 70% were unfounded. [¶] This bill will help prevent frivolous complaints which can affect the individual officer‘s future. For example, a Deputy Sheriff on a list for promotion to Sergeant receives a false report of misconduct, after which his promotion is deferred until the matter is resolved. After which, the complaint being found unfounded, the Deputy has no recourse for any financial loss due
to the delay.” (Assem. Com. on Public Safety Analysis, supra, at p. 2.)
Although not mentioned in the reports before the Legislature, several enrolled bill reports stated that section 148.6(a) would also save “department resources and time by not having to investigate unfounded complaints.” (Dep. of Forestry and Fire Protection, Enrolled Bill Rep. on Assem. Bill No. 1732 (1995-1996 Reg. Sess.) Sept. 8, 1995, p. 1; see Dep. Parks and Recreation, Enrolled Bill Rep. on Assem. Bill No. 1732 (1995-1996 Reg. Sess.) Sept. 8, 1995, p. 1; Governor‘s Office of Planning and Research, Enrolled Bill Rep. on Assem. Bill No. 1732 (1995-1996 Reg. Sess.) Sept. 8, 1995, p. 2.)
As discussed in more detail below, in Stanistreet, supra, 29 Cal.4th 497, we ruled that section 148.6(a) did not violate the First Amendment because it fell within each of the categories that R. A. V. had identified as permissible forms of content-based regulation within a proscribable category of speech. Two years after we decided Stanistreet, a federal district court expressly rejected our analysis and held that section 148.6(a) “does not come within the . . . R. A. V. categories of permissible content-based subclass regulation” and was thus “unconstitutional in violation of the First Amendment.” (Hamilton II, supra, 325 F.Supp.2d at p. 1091; accord Eakins, supra, 219 F.Supp.2d 1113.) The United States Court of Appeals for the Ninth Circuit shortly followed suit, reasoning that section 148.6(a)(1) unlawfully discriminated on the basis of viewpoint by criminalizing knowingly false speech that is critical of police officers while leaving unregulated knowingly false speech that is supportive of police officers. (See Chaker,
supra, 428 F.3d at p. 1227 [“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 — . . . turns the First Amendment on its head“].)
Following those federal decisions, the City entered into a consent decree with the federal government that prevented the City from enforcing the advisory requirement set forth in section 148.6(a)(2). After the decree expired in 2013, the City — presumably concerned about Chaker‘s holding that section 148.6(a)(1)‘s criminal provision was unconstitutional — continued not to comply with the admonition requirement. In 2017, the LAPPL filed the current action against the City, which seeks an injunction requiring it to comply with section 148.6(a)(2)‘s advisory requirement. Concluding that it was bound by Stanistreet, the trial court entered judgment in favor of the LAPPL and enjoined the City from accepting any complaint alleging misconduct by a peace officer unless the complainant has signed the advisory described in section 148.6(a)(2). The Court of Appeal affirmed. We granted review.
II. DISCUSSION
The City argues that Chaker, supra, 428 F.3d 1215, and other intervening federal authorities cast doubt on the continuing validity of Stanistreet.7 As discussed below, while we apply different reasoning than the Chaker court, we agree that
subsequent developments in the law warrant a reconsideration of our holding in Stanistreet.
In order to understand the complex First Amendment issues presented in this case, it is necessary to review the series of cases that preceded the challenge before us.
1. R. A. V. v. City of St. Paul
In R. A. V., supra, 505 U.S. 377, the Supreme Court considered a constitutional challenge to a City of St. Paul ordinance that made it a crime to display a symbol ” ‘which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.’ ” (Id. at p. 380, italics added.) The Minnesota Supreme Court had previously construed the ordinance as reaching only “fighting words,” a well-established category of unprotected speech.
In its analysis, the Supreme Court accepted the state court‘s conclusion that the statute only reached speech that amounted to fighting words. The court explained, however, that even those “limited” categories of speech that may be subjected to regulation (fighting words, defamation, obscenity, fraud, etc.) are not “entirely invisible to the Constitution.” (R. A. V., supra, 505 U.S. at p. 383.) R. A. V. established a general rule that “while certain categories of speech . . . may be regulated, such regulation may not discriminate within that category on the basis of content.” (Stanistreet, supra, 26 Cal.4th at p. 507.) Thus, for example, “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., at p. 384.)
Critically, however, the court went on to explain that the First Amendment‘s general prohibition against content discrimination “applies differently in the context of proscribable speech than in the area of fully protected speech.” (R. A. V., supra, 505 U.S. at p. 387.) According to the court, while the “rationale of the general prohibition . . . is that content discrimination ‘raises the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace,’ [citations] . . . content discrimination among various instances of a class of proscribable speech often does not pose this threat.” (Id. at pp. 387-388.)
The court next described some categories of content discrimination within a proscribable class of speech that generally do not threaten to drive viewpoints from the public sphere. The first of those categories is “[w]hen the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable.” ( R. A. V., supra, 505 U.S. at p. 388political messages. [Citation.] And the Federal Government can criminalize only those threats of violence that are directed against the President [citation] — since the reasons why threats of violence are outside the First Amendment (protecting individuals from the fear of violence, from the disruption that fear engenders, and from the possibility
that the threatened violence will occur) have special force when applied to the person of the President.” (Ibid.)
Second, citing Renton v. Playtime Theatres, Inc. (1986) 475 U.S. 41, 48 (Renton), the court explained that content-based regulations within a proscribable category of speech are generally “valid” (R. A. V., supra, 505 U.S. at p. 390) when the regulation is “aimed only at the ‘secondary effects’ of the speech” (id. at p. 394). The court noted, for example, that a state could “permit all obscene live performances except those involving minors.” (id. at p. 389.)
Finally, the court recognized a “more general exception for content discrimination that does not threaten censorship of ideas.” (R. A. V., supra, 505 U.S. at p. 393.) As explained by the court, “Where totally proscribable speech is at issue,” there need not be any specific ” ‘neutral’ basis [to justify the regulation] so long as the nature of the content discrimination is such that there is no realistic possibility that official suppression of ideas is afoot. (We cannot think of any First Amendment interest that would stand in the way of a State‘s prohibiting only those obscene motion pictures with blue-eyed actresses).” (id. at p. 390.)
Having laid out the general principles applicable to content-based regulations within a proscribable category of speech, the court concluded that the statute under review was impermissible because it created a special prohibition on hate speech that insults or provokes violence ” ‘on the basis of race, color, [or] creed,’ ” while permitting symbols that are intended to express hostility for other reasons, such as “political affiliation, union membership, or homosexuality.” (R. A. V., supra, 505 U.S. at p. 391.) The court further concluded that the
prohibition went “even beyond mere content discrimination, to actual viewpoint discrimination. 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 . . . would . . . be usable ad libitum.” (Ibid.)
The court next addressed why the statute did not fall within any of the three categories of generally permissible content-based regulations it had
The court also concluded the ordinance did not fall within the exception for content discrimination “aimed only at the ‘secondary effects’ of the speech.” (R. A. V., supra, 505 U.S. at p. 394.) St. Paul had argued this exception was applicable because the intent of the ordinance was not to limit the speech rights of the accused, but rather to protect ” ‘particularly vulnerable’ ” groups that had ’ ‘historically . . . been discriminated against.’ ” (Ibid.) The court disagreed, explaining that ” ’ [t]he emotive impact of speech on its audience is not a
“secondary effect.” ’ ” (Ibid.) The court likewise concluded that the “general exception” (id. at p. 393) for restrictions that are “beyond the suspicion of official suppression of ideas” (id. at p. 395) was clearly inapplicable because St. Paul had expressly argued that the intent of the statute was to suppress ideas expressed against specific classes of persons.
Having found that the ordinance was an impermissible content-based regulation on hate speech because its application turned on the viewpoint of the speaker, the court went on to apply strict scrutiny and found the statute unconstitutional.
2. People v. Stanistreet
In Stanistreet, supra, 29 Cal.4th 497, the defendants challenged their convictions under
We agreed with the defendants that section 148.6(a)‘s distinct treatment of complaints against peace officers versus complaints against other public
however, that the statute fell within each of the three categories of content-based regulations of proscribable speech that R. A. V. identified as generally not posing any threat to the marketplace of ideas.
Applying the first category — ” ’ [w]hen the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable’ ” (Stanistreet, supra, 29 Cal.4th at p. 508) — we reiterated that the relevant “[proscribable] class of speech at issue” was “knowingly false statements of fact.” (Ibid.) Relying on R. A. V.‘s example that ” ‘the reasons why threats of violence are [proscribable] . . . have special force when applied to the President’ ” (ibid.), we concluded that the reason false statements are generally proscribable likewise “has ‘special force’ [citation] when applied to false accusations against peace officers. When a person makes a complaint against a peace officer of the type that section 148.6 governs, the agency receiving the complaint is legally obligated to investigate it and to retain the complaint and resulting reports or findings for at least five years. (
We also found section 148.6(a) valid under R. A. V.‘s second category of generally permissible forms of regulations, reasoning that false accusations against peace officers have “substantial secondary effects — they trigger mandatory investigation and record retention requirements” that compel law enforcement agencies to expend “[p]ublic resources . . . that could otherwise be used for other matters.” (Stanistreet, supra, 29 Cal.4th at p. 509.) We further noted that once triggered, those mandatory requirements could “adversely affect the
accused peace officer‘s career, at least until the investigation is complete.” (Ibid.)
Finally, we held that the statute was valid under R. A. V.‘s general “catchall exception,” concluding there was “no realistic possibility” (Stanistreet, supra, 29 Cal.4th at p. 509) that
In a concurring opinion, Justice Werdegar (joined by Justice Moreno) agreed that
The concurrence also rejected the majority‘s application of the “catchall” exception, explaining that the Legislature had created a special crime that applies only to allegations against peace officers while simultaneously creating a “unique . . . mandate” that “prospective complainants” be warned of the “possibility of criminal sanctions.” (Stanistreet, supra, 29 Cal.4th at p. 513, conc. opn. of Werdegar, J.) Justice Werdegar explained that, “[r]ealistically,” these features of the law would cause “some complainants . . . to choose not to go forward — even when they have legitimate complaints.” (Id. at p. 514.)
3. Cases decided after Stanistreet
Since Stanistreet was decided, several federal decisions have weighed in either specifically on the constitutionality of
a. Federal cases finding section 148.6(a) unconstitutional
In Hamilton II, supra, 325 F.Supp.2d 1087, a plaintiff brought a federal civil rights action against the City of San Bernardino arising out of his interactions with law enforcement. (See Hamilton I, supra, 107 F.Supp.2d at pp. 1240–1241.) The plaintiff, a Black man, alleged that he had been unlawfully stopped on his bicycle and was then handcuffed and beaten. He
The district court granted the plaintiff summary judgment on his challenge to
Regarding the “secondary effects” exception, the court concluded that “even if [California] was partly motivated by the desire to curb the harmful effects of wasted investigative resources and damage to officers’ reputation, . . . these motives focus on the direct impact of the speech, not its ‘secondary’ effects.” (Hamilton II, supra, 325 F.Supp.2d at p. 1093.) Because
Finally, the court rejected Stanistreet‘s conclusion that ” ‘the nature of the content discrimination is such that there is no realistic possibility that official suppression of ideas is afoot.’ ” (Hamilton II, supra, 325 F.Supp.2d at p. 1090.) According to the court,
b. First Amendment decisions implicating issues related to R. A. V. and Stanistreet
In Davenport, supra, 551 U.S. 177, a union filed a free speech challenge to a state law that placed certain restrictions on public employee unions’ ability to spend fees that they collect from employees who are not union members but who are represented by the union in collective bargaining. The law at issue required the unions to obtain affirmative consent from nonunion members before using their funds for election-related expenditures but permitted the union to expend nonmember fees for other purposes without obtaining such consent. The union argued that by placing restrictions on expenditures related to elections but not for other purposes, the statute effectively imposed a content-based regulation that must be evaluated under strict scrutiny.
The court agreed that the statute constituted a content-based regulation and that such regulations are generally treated as “presumptively invalid.” (Davenport, supra, 551 U.S. at p. 188.) Quoting R. A. V., the court explained that ” ‘[t]he rationale of the general prohibition’ ” on content-based discrimination is that such regulations ” ’ “raise[] the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace.” ’ ” (Id. at p. 188.) The court further explained, however, that its prior cases had “identified numerous situations in which that risk is inconsequential . . . so that . . . strict scrutiny is unwarranted.” (Ibid.) As an example, the court again cited R. A. V., explaining that “content discrimination among various instances of a class of proscribable speech does not pose a threat to the marketplace of ideas when the selected subclass is chosen for the very reason that the entire class can be proscribed.” (Ibid.) The court then applied those general principles to the statute before it, concluding that placing a “reasonable” and “viewpoint-neutral limitation” on the manner in which nonunion
In Alvarez, supra, 567 U.S. 709, the Supreme Court considered a First Amendment challenge to “The Stolen Valor Act of 2005” (the Stolen Valor Act or the Act), a federal law that made it a crime to falsely represent having been awarded the Congressional Medal of Honor. Although six justices found the law to violate the First Amendment, no opinion secured a majority.
The four-vote plurality opinion began its analysis by rejecting the government‘s contention that false statements of fact constitute a general category of speech that lack First Amendment protection. (See Alvarez, supra, 567 U.S. at p. 722, plur. opn. of Kennedy, J. [“The Government has not demonstrated that false statements generally should constitute a new category of unprotected speech“].) While acknowledging that prior opinions contained language that could be read to support that conclusion, the plurality clarified that those cases involved false statements that were associated with a “legally cognizable harm” such as defamation or fraud. (Id. at p. 719.) In contrast, the plurality reasoned, the Act extended criminal liability to false claims regarding military medals, no matter the context in which they were made and regardless of whether they had caused harm. (Id. at pp. 722–723.) Although the plurality concluded that the Act furthered a legitimate state interest — “protecting the integrity of the military honors system” (id. at p. 725) — it explained that approving a criminal statute that targeted “falsity and nothing more” (id. at p. 719) would risk “cast[ing] a chill . . . [on speech that] the First Amendment cannot permit” (id. at p. 723). According to the plurality, because the Act “conflict[ed] with free speech principles” it was subject to strict scrutiny and could not satisfy that “exacting” level of review because there were less speech-deterring ways to address the state‘s interests. (Id. at p. 724.)
In a concurring opinion, Justice Breyer (joined by Justice Kagan) likewise rejected the government‘s theory that “false factual statements” are entitled to ” ‘no [constitutional] protection at all.’ ” (Alvarez, supra, 567 U.S. at p. 732, conc. opn. of Breyer, J., at pp. 732, 733.) Unlike the plurality, however, the concurrence concluded that when evaluating a regulation of “false statements about easily verifiable facts” (id. at p. 732), courts should apply intermediate scrutiny, asking whether “the statute works speech-related harm that is out of proportion to its justifications” (id. at p. 730). In applying that test, the concurrence
Finally, in Free Speech Coalition, supra, 606 U.S. 409, the court addressed the constitutionality of a state law requiring “commercial websites that publish sexually explicit content to verify the ages of their visitors.” (Id. at p. 462.) The state argued that the law was only subject to “rational-basis review” (id. at p. 477) because it regulated an unprotected form of speech, namely “speech that is obscene to minors” (id. at p. 482). While the court agreed that the statute did not “directly regulate . . . protected speech” (ibid.), it concluded that heightened scrutiny was nonetheless warranted because the age verification statute had an “incidental burden” on protected speech, namely “adult[s‘] . . . right to access speech that is obscene only to minors” (id. at p. 495, italics added).
The court went on to hold that intermediate scrutiny was the appropriate standard of review for laws that “directly regulate[] unprotected activity . . . while only incidentally burdening protected activity.” (Free Speech Coalition, supra, 606 U.S at p. 492.) The more “unforgiving” strict scrutiny standard, the court explained, is reserved for restrictions that “direct[ly] target[] . . . fully protected speech.” (Id. at p. 484.) According to the court, while not as exacting as strict scrutiny, intermediate scrutiny nonetheless “plays an important role in ensuring” that statutes with an “ostensibly legitimate purpose[]” are not structured in a manner that threatens to “suppress fundamental rights.” (Id. at p. 495 permissible, the state could not “require as proof of age an ‘affidavit’ from the individual‘s ‘biological parent.’ ” (Ibid.)
Before addressing the merits of the parties’ arguments regarding
While we do not “lightly” depart from past precedents, stare decisis nonetheless remains a ” ‘a flexible [policy].’ ” (People v. Mendoza (2000) 23 Cal.4th 896, 924.) “[R]eexamination of precedent may become necessary when subsequent developments indicate an earlier decision was unsound, or has become ripe for reconsideration.” (In re Jaime P. (2006) 40 Cal.4th 128, 133.) ” ‘This is especially so when [the issues under consideration] . . . relate[] to “matter[s] of continuing concern” to the community at large.’ ” (Moradi-Shalal, supra, 46 Cal.3d at p. 296.)
Those factors are clearly implicated here. We are presented with a constitutional question regarding the validity of a statute that implicates a subject — ” ‘[c]riticism of public officials[ — that] lies at the very core of speech protected by the First Amendment.’ ” (Green v. City of St. Louis (8th Cir. 2022) 52 F.4th 734, 739 (Green); accord Hernandez v. City of Phoenix (9th Cir. 2022) 43 F.4th 966, 981.) What restrictions, and in particular what criminal restrictions, our government may place on speech related to the misconduct of police officers is clearly a matter of continuing concern to the public at large.
Moreover, in the years since Stanistreet was decided, multiple federal decisions have rejected its reasoning, creating a split of authority that has resulted in a mandatory injunction issued by a state superior court (and affirmed by the Court of Appeal) directing that the City enforce
Most critically, as discussed in more detail below, since Stanistreet was decided, the United States Supreme Court has issued multiple rulings that provide further guidance regarding how we should evaluate the constitutionality of a statute like
For all those reasons, we believe this is an appropriate case in which to revisit our prior precedent in Stanistreet.
C. Is Section 148.6(a)(1) a Valid Restraint on Speech?
1. Section 148.6(a) qualifies as a content-based regulation within a proscribable category of speech
The question we must address in this case is whether
Accordingly, the first issue we must address is whether
While true that without the benefit of Alvarez, Stanistreet broadly characterized the relevant category of proscribable speech as “knowingly false statements of fact” (Stanistreet, supra, 29 Cal.4th at p. 508), our analysis in that case nonetheless makes clear that we also viewed
We now confirm what we implied in Stanistreet:
2. Application of R. A. V.
a. General principles guiding the evaluation of content-based regulations of defamation
R. A. V. makes clear that some forms of content-based regulation within a proscribable class of speech warrant heightened scrutiny while others do not. (See R. A. V., supra, 505 U.S. at p. 384.) The high court‘s decision, however, leaves some uncertainty as to how, exactly, courts should evaluate whether a particular form of content-based regulation within a proscribable class of speech warrants additional scrutiny. Broadly speaking, the court explained that while content-based regulations are generally prohibited because they ” ‘raise[] the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace’ ” (id. at p. 388), many forms of “content discrimination among various instances of a class of proscribable speech . . . do[] not pose this threat” (id. at p. 388). The court then described three categories of content discrimination within a proscribable category of speech that generally “do not threaten to drive ideas or viewpoints from the marketplace and hence are permissible.” (Stanistreet, 29 Cal.4th at p. 508, citing R. A. V., at pp. 388–390.)
While these three categories play an important role in assessing whether a content-based regulation within a proscribable category of speech warrants
Alvarez, supra, 567 U.S 709, applied similar principles in the context of regulations that prohibit knowing falsehoods. A majority of the court there concluded that some forms of prohibitions on knowingly false statements, even well-intentioned ones, can trigger constitutional scrutiny if the prohibition is written in such a manner that it unduly burdens protected speech. (See id. at p. 723, plur. opn. of Kennedy, J. [permitting the government to criminalize any knowingly false statement regarding the receipt of a military medal, regardless of context, would “cast[] a chill . . . the First Amendment cannot permit“]; id. at p. 736, conc. opn. of Breyer, J. [while limiting the Act to “knowing and intentional acts of deception . . . reduc[es] the risk that valuable speech is chilled,” the “breadth” of the statute nonetheless “creates a significant risk of First Amendment harm“; “a speaker might still be worried about being prosecuted for a careless false statement, even if he does not have the intent required to render him liable“], italics omitted.) Thus, much like content-based regulations within a proscribable category of speech, a core concern with statutes targeting knowing falsehoods is whether they risk driving out certain forms of ideas from the marketplace, which includes “true” (or at least well-intentioned) speech. (Id. at pp. 733, 736, conc. opn. of Breyer, J. [prohibitions on falsity “can inhibit the speaker from making true statements, thereby ‘chilling’ a kind of speech that lies at the First Amendment‘s heart“; “a speaker might . . . be worried about being prosecuted for a careless false statement, even if he does not have the intent required to render him liable“], italics omitted.)10
Most recently, the Supreme Court‘s decision in Free Speech Coalition, supra, 606 U.S. 461, confirmed what was implied in R. A. V. and Davenport: Statutes that regulate only unprotected categories of speech can be subject to heightened scrutiny if they have ” ‘an incidental effect on
While there remains some uncertainty regarding the specific contours of the high court holdings discussed above, the fundamental principle we derive from those cases is that when assessing a content-based regulation within a proscribable class of speech, courts must evaluate whether the “risk” (Davenport, supra, 551 U.S. at p. 188) that the prohibition will ” ‘drive certain ideas or viewpoints’ ” (R. A. V., supra, 505 U.S. at p. 387) from the public sphere is so “inconsequential” (Davenport, at p. 188) that further constitutional scrutiny is unwarranted. (See R. A. V., supra, 505 U.S. at p. 387.) Stated differently, courts should ask whether the regulation disfavors certain viewpoints (as in R. A. V.) or is structured in a manner that burdens protected forms of speech, whether directly (as in Alvarez) or incidentally (as in Free Speech Coalition). Alvarez suggests that when a statute targets a form of knowing falsehood (as
Finally — and critically — while R. A. V. includes language suggesting as much, cases like Davenport, Alvarez, and Free Speech Coalition make clear that in conducting this inquiry, the ultimate question is not whether there is reason to believe that the government actually intended to drive out certain viewpoints or forms of protected speech, but rather whether the means that government has selected — even if well-intentioned — create a substantial risk of doing so. (See R. A. V., supra, 505 U.S. at pp. 387, 388 [some forms of content-based regulations within proscribable classes of speech do not “pose [the] . . . threat” of ” ‘effectively driv[ing] certain ideas or viewpoints from the marketplace’ “], italics added; Davenport, supra, 551 U.S. at pp. 188, 189 [describing relevant inquiry as whether regulation “pose[s] a threat to the marketplace of ideas” or “impermissibly distort[s] the marketplace of ideas“].)
Section 148.6(a) raises substantial risks to the marketplace of ideas
Applying the R. A. V. framework, as supplemented by the high court‘s analysis in Davenport, Alvarez, and Free Speech Coalition, we conclude that
First,
penalties, have the constant potential to be a repressive force in the lives and thoughts of a free people”].)
Second,
Adding to those concerns,
Because we conclude that
category of public official that other persons do not enjoy — but rather that it does not treat defamatory expressions made in the context of the same official police misconduct proceeding the same way.12
As Justice Werdegar astutely observed in Stanistreet, supra, 29 Cal.4th 497,
In sum,
Raising further concerns, the language of subdivisions (a)(1) and (a)(2) introduces uncertainty and confusion as to the specific scope of statements that might fall within the criminal provision.
[advisory’s wording may cause citizens to believe that “the inclusion of a single, inaccurate allegation that is not material to the claim of misconduct is enough for prosecution”].) Given the breadth and “different linguistic form[s]” (Reno, supra, 521 U.S. at p. 871) of the language that subdivisions (a)(1) and (a)(2) employ in defining the scope of potential criminal liability, the statute raises concerns that persons of common intelligence will be left to “guess at its meaning and differ as to its application.” (Connally v. General Construction Co. (1926) 269 U.S. 385, 391; Reno, at p. 871 [statute’s use of “different linguistic form[s]” to describe scope of potential criminal liability “will provoke uncertainty among speakers about how the two standards relate to each other and just what they mean”], fn. omitted.)
We acknowledge that
Second, unlike the Stolen Valor Act at issue in Alvarez, supra,
In sum, we do not question whether
LAPPL’s defense of
Alvarez and Free Speech Coalition (and before multiple federal courts found
However, with the benefit of subsequent case law, we believe that when assessing a content-based regulation within a proscribable category of speech, consideration should be given not only to whether the regulation falls within one of the categories described in R. A. V., but also whether the regulation may incidentally burden protected speech. (See Free Speech Coalition, 535 U.S. at pp. 246–247.) In other words, the R. A. V. categories are best understood as examples of content discrimination that generally pose a lesser risk of either suppressing disfavored viewpoints or consequentially burdening protected speech. (See ante, at pp. 34–39.) As explained above, in this case we are concerned about
Applying the first R. A. V. category, for example, LAPPL argues that the reason defamation is proscribable — to protect
As explained above, however, the problem with
section 148.6(a) is not that the statute violates the overbreadth doctrine by criminalizing some forms of protected speech. Indeed, we agree with Stanistreet that, on its face, the statute only criminalizes unprotected speech (knowing, defamatory falsehoods). (See ante, at pp. 32–34.) Rather, the problem is that under the framework R. A. V. provides for evaluating content discrimination within a proscribable class of speech, we cannot say that the risk of official suppression of ideas throughsection 148.6(a) , including the risk of deterring citizens from filing truthful complaints of police misconduct is so “inconsequential” as to uphold the statute with no further scrutiny. (Davenport, supra, 551 U.S. at p. 188; see also Free Speech Coalition, supra, 535 U.S. at pp. 246–247, 250.)
against “injury to reputation” (Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 348) — applies with special force in this context because
Similarly, we do not read R. A. V.’s second category of regulations — speech-based restrictions “aimed only at the ‘secondary effects’ of the speech” (R. A. V., supra, 505 U.S. at p. 394) — as creating a bright-line rule that immunizes from heightened scrutiny any content discrimination within a proscribable class of speech that targets the secondary effects of speech. Indeed, Renton, supra, 475 U.S. 41, which R. A. V.
repeatedly cites (see R. A. V., at pp. 389, 394), and other First Amendment cases addressing the secondary effects doctrine make clear that even regulations aimed at the secondary effects of speech cannot be designed in a manner that unduly interferes with speech itself. (See Alameda Books (2002) 535 U.S. 425, 434, plur. opn. of O’Connor, J. [ordinance targeting secondary effects will be upheld only if government demonstrates that “reasonable alternative avenues of communication remain[] available”].) And again Alvarez, supra, 567 U.S. 709, and Free Speech Coalition, supra, 535 U.S. 234, now make clear that even well-intentioned regulations that target falsity or that target unprotected categories of speech can trigger heightened scrutiny when they are structured in a manner that risks unduly burdening protected forms of speech. We see no reason why a different rule should apply to well-intentioned content-based regulations that are meant to target only the secondary effects of speech. For the reasons discussed above, to the extent
Finally, R. A. V.’s third category — which Stanistreet coined as a “catchall” (Stanistreet, supra, 29 Cal.4th at p. 509) — applies to content-based regulations that do not present any “realistic possibility” of “suppressi[ng]” any disfavored viewpoints (R. A. V., supra, 505 U.S. at p. 390) or burdening any protected forms of speech (see Free Speech Coalition, supra, 535 U.S. at pp. 246–247, 250; see also Alvarez, supra, 567 U.S. at pp. 709, 723, plur. opn. of Kennedy, J.; id. at p. 736, conc. opn. of Breyer, J.). With the benefit of subsequent case law, we construe this “general exception” (id. at p. 393) as merely recognizing that there might be some forms of content regulation within proscribable classes of speech where the potential for favoring certain viewpoints or burdening protected forms of speech are so obviously remote as to warrant no further scrutiny. As an example, the high court posited that it could “not think of any First Amendment interest that would stand in the way of a State’s prohibiting only those obscene motion pictures with blue-eyed actresses.” (R. A. V., at p. 390.)
Stanistreet concluded that R. A. V.’s “catchall” applied because
For the reasons explained in detail above, while true that
The dissent concludes that
i. Alvarez did not establish a new category of proscribable speech
The dissent argues that heightened scrutiny is unwarranted because
The dissent’s reliance on Alvarez is notable not only because plurality opinions do not constitute binding precedent (as they do “not represent the views of a majority of the Court” (CTS Corp. v. Dynamics Corp. of America (1987) 481 U.S. 69, 81), but also because we find nothing in the Alvarez plurality indicating that it intended to proclaim a new category of proscribable speech. While it is true that the plurality signaled approval of statutes that “prohibit falsely representing that one is speaking on behalf of the Government” and described those statutes as “protect[ing] the integrity of Government processes” (Alvarez, supra, 567 U.S. at p. 721, plur. opn. of Kennedy, J.), we do not view those comments as endorsing an expansion of the “ ‘well-defined and narrowly limited classes of speech’ ” that have historically been deemed proscribable. (Stevens, supra, 559 U.S. at pp. 468–469.) As the Alvarez plurality acknowledged later in its opinion, the Supreme Court has consistently rejected any “ ‘freewheeling authority to declare new categories of speech outside the scope of the First Amendment,’ ” and will do so only when “presented with
In our view, the only category of proscribable speech that
While it may be that many prohibitions on falsity that protect the integrity of government processes are valid because they are sufficiently circumscribed to achieve that purpose (see Alvarez, supra, 567 U.S. at p. 721, plur. opn. of Kennedy, J. [describing
18 U.S.C. §§ 1001 and912 as “targeted prohibitions”], italics added), we find nothing in the Alvarez plurality that suggests such laws are categorically immune from constitutional scrutiny because they regulate a class of speech that qualifies as one of “the few ‘ “historic and traditional categories [of expression] long familiar to the bar.” ’ ” (Alvarez, at p. 717, plur. opn. of Kennedy, J., quoting Stevens, supra, 559 U.S. at p. 468.)
proscribable speech in a manner that incidentally burdens protected speech.
Instead, the dissent grounds its defense of the statute in the proclamation of a new category of proscribable speech that no party in this long-running litigation has ever proposed and that no court has ever endorsed.
The dissent‘s second line of reasoning is that it sees no risk (or at least no consequential risk) that the features of
In support, the dissent argues that while focusing on the admonition‘s threat of criminal liability, our analysis ignores additional language in the admonition explaining that while the agency may ultimately find there is not enough evidence to take action on the complaint, the complainant still has the right to ” ‘make the complaint and have it investigated.’ ” (Dis. opn. of Liu, J., post, at p. 11, quoting
The dissent further reasons that because a well-intentioned complainant would “know” they are acting in good faith, and not making “a complaint [they] know[] to be false” (ibid.), there is no reasonable risk they would be deterred.
In our view, however, telling complainants that they have a right to make a good-faith allegation of misconduct even if it is ultimately deemed to be supported by insufficient evidence does little to mitigate the deterrent effect of then immediately telling them, but if we think you are lying, you can be charged with a crime. The problem with the dissent‘s argument is that it assumes that simply because the complainant believes that what they are saying is true — and because they have been told that acting in good faith is not a crime — then they should have no reason to be deterred from complaining. But as Justice Werdegar explained, allegations involving police misconduct will frequently “come down to the word of the citizen against the word of the police officer” (Stanistreet, supra, 29 Cal.4th at p. 513, conc. opn. of Werdegar, J.), and the admonition makes prospective complainants acutely aware that they could face “criminal prosecution and the burden and expense of retaining a defense attorney” if authorities think they are being knowingly untruthful. (Id. at p. 514.) Under such circumstances, “some complainants are likely to choose not to go forward.” (Ibid.)
The dissent disagrees with that line of reasoning. The fact that it may be a complainant‘s word against a police officer‘s does not alter the dissent‘s view. Nor does the fact that before citizens are even allowed to make a complaint, they are told they may face criminal prosecution if their statements are deemed knowingly untruthful. The fact that the entity that will make a determination of falsity for purposes of effectuating an arrest may, in the first instance, be the very entity that the person is complaining about? The
The dissent contends, however, that a report showing that thousands of misconduct claims were filed in 2018 and ultimately determined to be ” ‘unfounded’ ” belies any claim that citizens are deterred from pursuing complaints. (Dis. opn. of Liu, J., post, at p. 12.) The dissent appears to reason that because many citizens were willing to come forward with complaints in 2018 that could not ultimately be substantiated, it is unlikely that
The dissent next argues that our concerns regarding the deterring effects of
More crucially, even if the initial complaint is submitted online, that would not seem to end the complainant‘s participation in the matter. The language of the admonition and text of
The dissent similarly argues that any risk of deterrence is mitigated by the fact that law enforcement “agencies commonly have structures designed to protect the integrity of investigations.” (Dis. opn. of Liu J., post, at p. 14.) Again, however, while some agencies may have such “structures” (ibid.) in place (the dissent identifies only four such agencies), the RIPA Board findings suggest that others likely do not. (See RIPA Annual Report 2020, supra, at pp. 67–70 [law enforcement agencies throughout California lack “a uniform
The dissent also expresses confusion as to how deterring well-intentioned complaints of police misconduct could possibly be said to drive certain ideas or viewpoints from the public sphere given that “complaints alleging misconduct by a peace officer are generally confidential.” (Dis. opn. of Liu J., post, at p. 18.) We think it clear, however, that when a regulation substantially burdens a citizen‘s ability to engage in protected speech that relates to the conduct of government officials — even speech that the larger public may not be privy too — heightened scrutiny is required. The fact that allegations within a complaint are generally confidential does nothing to alter the speech deterring effects of the statute.
On a more fundamental level, we simply disagree with the dissent‘s suggestion that there is no reason to believe that
The Attorney General‘s RIPA Board (see
Although the RIPA Board includes numerous experts in law enforcement, the dissent discounts its findings regarding the potential deterrent effects of
We join the many voices who have previously concluded that as currently structured,
iii. Additional arguments
The dissent additionally argues that
The dissent also notes that
3. Section 148.6 is not narrowly tailored to achieve its purposes
Because
Moreover,
For purposes of this case, it is ultimately immaterial whether intermediate or strict scrutiny applies because we conclude that
Applying those standards here, we find that the government has a significant interest in deterring knowingly false complaints of misconduct levied against police officers. As detailed in the legislative history,
We are not persuaded, however, that
The Legislature might, for example, provide peace officers heightened procedural protections that insulate them against the potentially damaging professional effects of false complaints. (See
Again, we acknowledge that the state has a legitimate interest in curbing the deleterious effects of false complaints against law enforcement. (Accord dis. opn. of Liu, J., post, at p. 6.) And like the dissent, we reaffirm Stanistreet‘s conclusion that the Legislature has the authority “to
III. DISPOSITION
The Court of Appeal‘s judgment is reversed and the matter is remanded for further proceedings consistent with this opinion.
GROBAN, J.
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
KRUGER, J.
EVANS, J.
JENKINS, J.*
* Retired Associate Justice of the Supreme Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
S275272
Dissenting Opinion by Justice Liu
At least since the beating of Rodney King by officers of the Los Angeles Police Department in 1991, police misconduct has been a high-profile issue in California and throughout the nation. The concern has remained salient in light of many fraught and sometimes deadly police interactions with minority communities over the years. (See People v Flores (2024) 15 Cal.5th 1032, 1049; id. at pp. 1053–1054 (conc. opn. of Evans, J.); People v. McWilliams (2023) 14 Cal.5th 429, 451–452 (conc. opn. of Liu, J.); B.B. v. County of Los Angeles (2020) 10 Cal.5th 1, 30–31 (conc. opn. of Liu, J.).)
As one recourse, our Legislature requires every law enforcement agency to “establish a procedure to investigate complaints by members of the public against the personnel of these departments . . . , and . . . [to] make a written description of the procedure available to the public.” (
As important as these procedures are, they are also susceptible to abuse.
In enacting
The question is whether
rationale rests on speculative assertions and does not withstand scrutiny.
To be sure, many people, especially members of minority, immigrant, or low-income communities, may be reluctant to file complaints. They may feel it is not their place to question authority; they may lack confidence their complaints will be taken seriously; they may distrust law enforcement; they may not know the process or have time to figure it out. These issues have long histories and many complexities quite apart from
I.
As the high court has made clear, there is no “general exception to the First Amendment for false statements.” (Alvarez, supra, 567 U.S. at p. 718 (plur. opn. of Kennedy, J.); see id. at pp. 733-734 (conc. opn. of Breyer, J.).) But our statutes and common law have long recognized categories of “knowing or reckless falsehood[s]” that may be proscribed without running afoul of the First Amendment. (Alvarez, at p. 719 (plur. opn. of Kennedy, J.).) These include defamation, fraud, perjury, and false statements made to a government official. (Id. at pp. 719-721; see id. at pp. 734-735 (conc. opn. of Breyer, J.).) The common denominator of such laws is not merely that they proscribe false speech, but that they protect against “legally cognizable harm associated with a false statement.” (Id. at p. 719 (plur. opn. of Kennedy, J.); see id. at p. 734 (conc. opn. of Breyer, J.) [such laws narrow the range of proscribed falsehoods “by specifying that the lies be made in contexts in which a tangible harm to others is especially likely to occur” or “by limiting the prohibited lies to those that are particularly likely to produce harm“].)
One subset consists of longstanding laws that protect the integrity of government processes. Perjury lacks First Amendment protection “not simply
The law takes seriously any complaint filed against a peace officer, and the Legislature was well within its prerogative to protect the integrity of complaint procedures by punishing and deterring abuse.
II.
In Chaker v. Crogan (9th Cir. 2005) 428 F.3d 1215 (Chaker), the Ninth Circuit held
It is true that
When a complaint is made against an officer, the officer will typically have to put his or her version of events into a report or give a statement to an investigating officer to be included in a report. (E.g., Cuadra v. City of South San Francisco (N.D.Cal., Jan. 4, 2010, No. C08-3439 TEH) 2010 WL 55875 (Cuadra) [after Cuadra claimed police officers used excessive force when arresting him, the officers prepared a report on the arrest and investigation of Cuadra‘s complaint].) A knowing falsehood would expose the officers to criminal liability under
Further, although
III.
The crux of the court‘s reasoning today is that several features of
“More troubling still,” the court says, ”
The advisory twice informs the reader that “you have the right to make a complaint” (or “the complaint“). (
Indeed, people throughout California, including people in jurisdictions that require the advisory, have not been deterred from filing thousands of complaints that were investigated and determined to be “unfounded” (allegation is not true), “exonerated” (officer did not violate the law or agency policy), or “not sustained” (evidence is insufficient to prove or disprove the allegation). (Racial & Identity Profiling Advisory (RIPA) Board, Annual Report 2020, p. 60 (RIPA 2020 Report).) For example, among 8,488 complaints resolved by 453 agencies in 2018, when the admonition was widely used, a total of 7,569, or 89%, resulted in one of those three dispositions. (Ibid.; see RIPA Board, Annual Report 2018, p. 28 [reviewing complaint forms from 85 agencies and finding that 63% “included language informing the civilian of his/her right to file a complaint and many featured [the advisory] language” and that 81% “include a line for the complainant‘s signature, typically to confirm that they have read and understand the [advisory] statement“].) Sure, California is a big state (maj. opn., ante, at p. 63), but unless there is reason to think those thousands of complainants are outliers — and the court offers none — this strikes me as probative of whether the advisory poses a risk of deterring “the average person” from making a good-faith complaint (id. at p. 62).
The court adds atmosphere to the advisory by positing that “subdivision (a)(2) requires that: (1) complainants walk into a police station and locate the appropriate person to complain to, who will likely be a uniformed police officer; (2) complainants make known that they want to levy a serious complaint of misconduct against one of the colleagues of the person they are complaining to; (3) complainants will then be told that before the police will even accept a complaint, they must sign an advisory acknowledging that they can be criminally charged if law enforcement believes that anything they say is knowingly false; and (4) the entity that will make a determination of falsity for purposes of effectuating an arrest is, in the first instance, likely to be the very entity that the person is complaining about.” (Maj. opn., ante, at p. 44.)
This narrative does not track reality in several respects. For one thing, the statute does not “require[]” anyone to “walk into a police station.” (Maj. opn., ante, at p. 44.) On a cursory search of complaint procedures throughout the state, it is evident that there are many ways to file a complaint. Among the eight largest jurisdictions that give the advisory — Alameda County, Kern
Moreover, it is inaccurate or at best oversimplified to say that complaint procedures put people in the position of levying “a serious complaint of misconduct against one of the colleagues of the person they are complaining to,” or that the entity assessing the merits of a complaint is “likely to be the very entity that the person is complaining about.” (Maj. opn., ante, at p. 44.) In this day and age of professional policing, law enforcement agencies commonly have structures designed to protect the integrity of investigations. (See RIPA 2020 Report, supra, pp. 88-90.) An easy search reveals that complaints against officers of the San Diego Police Department are handled by the Internal Affairs Unit. In Sacramento County, complaints are filed with the Internal Affairs Bureau of the Sheriff‘s Office or with the county‘s Office of Inspector General. A complaint about a Los Angeles Police Department officer may be filed with the department or with the Office of the Inspector General of the Los Angeles Police Commission. In San Francisco, complaints are handled by the Department of Police Accountability, an agency independent of the police department and staffed by “[c]ivilians who have never been police officers in San Francisco.” (Appendix, post [collecting relevant websites].) These are but a few examples.
Today‘s opinion says a further concern is that “the language of subdivisions (a)(1) and (a)(2) introduces uncertainty and confusion as to the specific scope of statements that might fall within the criminal provision.” (Maj. opn., ante, at p. 45.) The court says the term “misconduct” (
The court also says
If there were real confusion or uncertainty concerning the statute‘s coverage, one would expect to find cases where defendants convicted under the statute challenged its scope or the sufficiency of the evidence. But none of the cases cited in today‘s opinion addressed such issues. (See People v. Stanistreet (2002) 29 Cal.4th 497; Chaker, supra, 428 F.3d 1215; Hamilton v. City of San Bernardino (C.D.Cal. 2004) 325 F.Supp.2d 1087; Hamilton v. City of San Bernardino (C.D.Cal. 2000) 107 F.Supp.2d 1239 (Hamilton); Cuadra, supra, 2010 WL 55875.) There is one case where an appellate court noted that the trial court dismissed a
And if the statute deters “truthful (or at least well-intentioned) complaints” (maj. opn., ante, at p. 6), one would expect to find evidence that good-faith complainants are in fact deterred. But the only actual instance of deterrence cited in today‘s lengthy opinion is the Hamilton case. (Maj. opn., ante, at p. 68, fn. 21.) There, two officers “pulled [Hamilton, an African American
The court notes that the RIPA Board has said
It is not clear what facts support the assertion that
There are many reasons people might be deterred from filing a complaint against the police (ante, at p. 4), but there are no facts showing that
Finally, it is worth noting that complaints alleging misconduct by a peace officer are generally confidential. (
Against this backdrop, even if
Meanwhile, everyone agrees that
In sum, the Legislature‘s sensible effort to protect the complaint process from intentional abuse is fully compatible with the right to free speech. I respectfully dissent.
LIU,
APPENDIX
Below are websites providing information about the complaint procedures in various police jurisdictions discussed in the dissenting opinion. These Internet citations are current of November 10, 2025, and are archived by year, docket number, and case name at <http://www.courts.ca.gov/opinions/cited-supreme-court-opinions>.
- Alameda County Sheriff‘s Office, Citizen Complaint <https://www.alamedasheriff.gov/community/citizen-complaint>
- Kern County Sheriff‘s Office, Complaints <https://www.kernsheriff.org/complaints>
- Los Angeles Police Dept., Report Employee Misconduct, <https://www.lapdonline.org/office-of-the-chief-of-police/professional-standards-bureau/report-employee-misconduct/>
- Office of the Inspector General, Los Angeles Police Commission, How to File a Complaint, <https://www.oig.lacity.org/how-to-file-a-complaint>
- Riverside County Sheriff, Complaints <https://www.riversidesheriff.org/301/Complaints>
- Sacramento County Sheriff‘s Office, Internal Affairs Bureau <https://www.sacsheriff.com/pages/professional_standards_division_internal_affairs.php>
- San Bernardino County Sheriff‘s Department, Parking Citations, Commendations, and Complaints <https://wp.sbcounty.gov/sheriff/divisions/citizen-complaint-procedure/>
- City of San Diego, Police, File a Complaint <https://www.sandiego.gov/police/contact/file-complaint>
- San Diego County Sheriff‘s Office, Commendations & Complaints <https://www.sdsheriff.gov/i-want-to/file/commendations-complaints>
- City and County of San Francisco, About the Department of Police Accountability <https://www.sf.gov/departments--department-police-accountability--about>
- Ventura County Sheriff‘s Office, Citizen Complaint Form <https://sheriff.venturacounty.gov/citizen-complaint-form/>
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 CIVILIAN’ 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. CIVILIAN COMPLAINTS AND ANY REPORTS OR FINDINGS RELATED TO COMPLAINTS MUST BE RETAINED BY THIS AGENCY FOR AT LEAST FIVE YEARS. [¶] IT IS AGAINST THE
As enumerated above, the statute here includes a broadly worded criminal provision that is accompanied by an unusual admonition requirement. These statutory elements, as described by the Hamilton II court, create a “potent disincentive” for citizens to file even well-intentioned complaints of police misconduct. (Hamilton II, supra, 325 F.Supp.2d at p. 1094; see ante, at pp. 39–49.) We do not believe that