Penal Code Section 148.6 – False Allegation of Police Misconduct

Penal Code Section 148.61 provides misdemeanor punishment for any person who makes a false allegation of misconduct against a peace officer.

PENAL CODE SECTION 146(a) VIOLATIONS:

Elements of the Offense:

  1. The Defendant filed an allegation accusing a peace officer of misconduct; AND
  2. The Defendant knew the allegation to be false.

Written Complaint Requirements:

The police agency shall require any person who makes a complaint against an officer the following advisement in boldface type:

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 CIVILIANS’ COMPLAINTS.  YOU HAVE A RIGHT TO A WRITTEN DESCRIPTION OF THIS PROCEDURE.  THIS AGENCY MAY FIND AFTER INVESTIGATION THAT THERE IS NOT ENOUGHT 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 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.

PENAL CODE SECTION 148.6(b) VIOLATIONS:

Penal Code Section 148.6(b) protects police officers from those invidiauls who file false civil claims against officers, or who files a false lien against an offider’s property to harass the public servant.

Elements:

  1. The Defendant filed civil claim against a peace officer, or a lien against the officer’s property; AND
  2. The Defendant knew the claim or lien to be false; AND
  3. The Defendant had the intent to harass or dissuade the officer from carrying out his/her official duties.

Punishment:

Penal Code Section 148.6 violations are punishable by up to 6 months in jail, or probation and a jail sentence deemed suitable by the judge.

Commentary:

Attorneys have hurled numerous constitutional arguments at the validity of Penal Code Section 148.6 over the years. In 2005, the Ninth Circuit of the United States Court of Appeals noted that “it is clear that the state may prohibit knowingly false speech made in connection with the peace officer complaint process.” HOWEVER, the Ninth Circuit found the statute to be unconstitutional on the basis that it was viewpoint biased and only prohibited false speech critical of peace officers. Knowingly false speech supportive of peace officer conduct was not subject to prosecution. The Ninth Circuit stated: “California has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules. Because section 148.6 targets only knowingly flase speech critical of peace officer conduct during the course of a complaint investigation, we conclude that the statute impermissibly regulates speec on the basis of a speaker’s viewpoint.” The Ninth Circuit advised: “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 knowinglymaking false statements.”3  

If you are charged or investigated for a Penal Code Section 148.6 violation, contact a competent criminal defense attorney immediately.

Notes & Sources Cited:

1 Blog article last updated December 7, 2017. This blog article is for informational purposes only. If you are suspected of committing a violation of Penal Code Section 148.6, you should locate a competent criminal defense attorney for a consultation at your earliest convenience.  In 2005, the statute was deemed unconstitutional by the federal Ninth Circuit Court of Appeal.  This blog article is for informational / academic purposes only and does not establish an attorney-client relationship with the reader.
2 Chaker v. Crogan (2005) 428 F.3d 1215 [holding prior version of Section 148.6 unconstitutional]
3 Chaker v. Crogan (2005) 428 F.3d 1215, 1227-1228. Citing R.A.V. v. City of St. Paul (1992) 112 S.Ct. 2538.

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