Is Anything Lurking Behind the Boilerplate?
...by Mark Drake
In 1982, the California legislature passed Civil Code Section 47.5, which reads essentially as follows:
...a peace officer may bring an action for defamation against an individual who has filed a complaint with that officer's employing agency alleging misconduct, criminal conduct, or incompetence, if that complaint is false, the complaint was made with knowledge that it was false and that it was made with spite, hatred, or ill will...
One might wonder what purpose such a "special interest" law would serve; anyone -- police or otherwise -- could already bring suit for the public circulation of defamatory allegations, and earlier special legislation called the "Peace Officer's Bill of Rights" had already protected officers from suffering career consequences as a result of complaints which are not substantiated. No other profession, public or private, enjoys a special law providing for retaliation against a complainant to one's employer, but the cops felt they wanted this, and generally speaking, what cops want from the California legislature, they get.
So from then on, police complaint forms contained language such as this (taken from a now superseded CHP form 240B): "The citizens' complaint process is designed to investigate the allegations of citizens and to make a determination of fact as to any wrongdoing. In cases where a false complaint is maliciously filed against a peace officer, that officer is entitled to file a civil action in accordance with Civil Code Section 47.5."
Perhaps the sole purpose of pushing this law through was to make way for incorporating such a statement in the form a complainant has to sign, in order to intimidate him or her from following through with the complaint. CLMP's interviews do confirm that at least some people who start to file a complaint are successfully intimidated when they see what they naturally interpret as a thinly veiled threat, and they decide to drop the matter. As far as the danger of actually getting sued though, the standard established by the wording of the law is such that this section is seldom used frivolously: To prevail in such a suit, an officer would have to establish that the complaint-filer had knowingly made a false accusation, with malicious intent.
A few times in the past 15 years, such suits have been brought, and that's hardly surprising since we all know that there are malicious people who spread false rumors, and a disproportionate fraction of those tales will be aimed at cops. By its nature police work involves unhappy campers far more often than most occupations do. One of the reasons these suits are so rare may be that the police unions are quietly aware that the law as written has constitutional problems. So long as it's not pushed, the threat serves its intimidation function; if it were abused, however, the result might be a court decision striking it from the books.
In fact the ACLU of Northern California is keeping track of these suits when they do crop up, and might be interested in intervening to establish a case law precedent if a suitable case turns up -- so in the unlikely event you hear of someone being SLAPPed with such a suit, contact us promptly so we can introduce the victim to the appropriate ACLU staff if that seems to be appropriate.
(Incidentally, the only Humboldt case brought under 47.5 that CLMP is aware of was a small claims action heard by a visiting judge in Garberville. It gained the officer nothing but a little egg on his face when he lost.)
Since the more-or-less idle threat of a retaliatory civil suit by the offending officer has not been completely successful in eliminating citizen complaints, the police lobby in Sacramento has been busy of late concocting new, improved (or improved-looking) threats. In the last three sessions, the legislature has passed two bills inventing new misdemeanors, which have been incorporated into Penal Code Section 148.5. Subdivision (b) provides essentially that anyone who knowingly files a false civil claim against an officer on the basis of actions taken by the officer under color of law is subject to criminal prosecution for doing so.
The more interesting part is subdivision (a), which provides that anyone filing "any allegation of misconduct against a peace officer...knowing the allegation to be false, is guilty of a misdemeanor." Furthermore (and here's the point, of course), it requires any police agency receiving a complaint to require the complainant to read and sign a paper which states that fact in BOLD FACED CAPITAL LETTERS, just in case you weren't trembling in your boots when you walked in.
The reason this is even less of a credible threat to a legitimate complainant than the 47.5 "warning" (at least in a county with a moderately uncorrupted district attorney's office) is that to get such a criminal conviction, the DA would have to establish beyond a reasonable doubt that the allegation was false, and that the person who made it was aware of that at the time it was made.
But it sure looks imposing there in bold caps, doesn't it?
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