L.A. Police Protective League v. City of L.A.

Filed 5/19/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
LOS ANGELES POLICE B306321
PROTECTIVE LEAGUE,
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC676283)
v.
CITY OF LOS ANGELES et al.,
Defendants and
Appellants.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Robert B. Broadbelt III, Judge. Affirmed.
Michael N. Feuer, City Attorney, Kathleen A. Kenealy,
Chief Deputy City Attorney, Scott Marcus, Senior Assistant City
Attorney, Blithe S. Bock, Managing Assistant City Attorney, and
Michael M. Walsh, Deputy City Attorney, for Defendants and
Appellants.
Rains Lucia Stern St. Phalle & Silver, Richard A. Levine,
and Michael A. Morguess for Plaintiff and Respondent.
INTRODUCTION
California requires law enforcement agencies to investigate
complaints against peace officers. (See Pen. Code, § 832.5,
subd. (a)(1).)1 Section 148.6, subdivision (a)(1), makes it a crime
to file a knowingly false allegation of misconduct against a peace
officer. And section 148.6, subdivision (a)(2), requires law
enforcement agencies, before accepting a complaint alleging
misconduct by a peace officer, to require the complainant to sign
an advisory informing the complainant that filing a knowingly
false complaint may result in criminal prosecution.
In 2002 the California Supreme Court upheld section 148.6
against a challenge the statute was an impermissible content-
based speech restriction under the First Amendment to the
United States Constitution. (People v. Stanistreet (2002)
29 Cal.4th 497, cert. den. 538 U.S. 120 [123 S.Ct. 1944,
155 L.Ed.2d 861] (Stanistreet)). Three years later, a panel of the
United States Court of Appeals for the Ninth Circuit reached a
different conclusion. The Ninth Circuit ruled section 148.6 was
an impermissible viewpoint-based speech restriction under the
First Amendment because the statute criminalized false
statements that accused a peace officer of misconduct, but not
false statements, made by the officer or a witness during the
investigation, that supported the officer. (Chaker v. Crogan
(9th Cir. 2005) 428 F.3d 1215, cert. den. 547 U.S. 1128 [26 S.Ct.
2023, 164 L.Ed.2d 780] (Chaker).)
Until 2013 the City of Los Angeles and the United States
were parties to a consent decree in the United States District
Court that prevented the City from requiring complainants to
1 Undesignated statutory references are to the Penal Code.
2
sign the advisory required by section 148.6. After the consent
decree expired, the City continued to not require complainants to
sign the advisory. The Los Angeles Police Protective League filed
this action against the City and its Chief of Police, Charlie Beck,
seeking an injunction requiring them to comply with
section 148.6, subdivision (a)(2).2 Following a court trial, the
court entered judgment in favor of the Police Protective League.
Concluding it was bound to follow Stanistreet, the trial court
rejected the City’s First Amendment challenge to section 148.6
and enjoined the City from accepting any complaint alleging
misconduct by a peace officer unless the complainant has signed
the advisory required by section 148.6.
The City appeals, asking us to hold, as the Ninth Circuit
held in Chaker, section 148.6 is an impermissible viewpoint-
based speech restriction. The City correctly points out that the
arguments the California Supreme Court rejected in Stanistreet
are not entirely identical to the arguments the Ninth Circuit
accepted in Chaker. The City also argues the injunction requires
the City to enforce a statute federal courts have found is
unconstitutional. That’s a real problem. But the Supreme
Court’s analysis in Stanistreet of why section 148.6 does not
violate the First Amendment applies to the City’s Chaker-based
arguments here. Because the United States Supreme Court has
not ruled section 148.6 or an analogous statute is
unconstitutional, we must follow Stanistreet. Therefore, we do,
and we affirm.
2 We refer to the City of Los Angeles and Beck collectively as
the City.
3
FACTUAL AND PROCEDURAL BACKGROUND
A. The Legislature Enacts Section 148.6
The California Supreme Court in Stanistreet explained the
circumstances that prompted the Legislature to enact
section 148.6: After “‘the Rodney King incident in March 1991,
law enforcement agencies throughout the state . . . “revised their
citizen complaint procedures to promote greater accountability on
the part of their line officers.”’” (Stanistreet, supra, 29 Cal.4th at
p. 502.) But, according to the Legislature, “‘a “glaringly negative
side-effect [was] the willingness on the part of many of
[California’s] less ethical citizens to maliciously file false
allegations of misconduct against officers in an effort to punish
them for simply doing their jobs.” [Citation.] 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.’”
(Id. at pp. 502-503.)
Section 148.6, subdivision (a)(1), states: “Every person who
files any allegation of misconduct against any peace officer, . . .
knowing the allegation to be false, is guilty of a misdemeanor.”
Section 148.6, subdivision (a)(2), states: “A law enforcement
agency accepting an allegation of misconduct against a peace
officer shall require the complainant to read and sign the
following advisory, all 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’
4
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 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.
“I have read and understood the above statement.
“Complainant _______.”
B. A Consent Decree Prevents the City from Requiring
Complainants To Sign the Advisory
In 2000 the United States filed a lawsuit against the City of
Los Angeles alleging the City had failed to implement
appropriate management practices, resulting in a pattern or
practice of unconstitutional conduct that violated title 42 United
States Code former section 14141.3 The following year the
3 At the time, that section provided: “It shall be unlawful for
any governmental authority . . . to engage in a pattern or practice
5
United States and the City of Los Angeles entered into a consent
decree that resolved the lawsuit. Under the decree, the City of
Los Angeles and the Los Angeles Police Department agreed to
receive complaints against peace officers “in writing or verbally,
in person, by mail, by telephone . . . , [by] facsimile transmission,
or by electronic mail . . . .” The City of Los Angeles also agreed to
receive anonymous complaints and to “prohibit officers from
asking or requiring a potential complainant to sign any form that
in any manner limits . . . the ability of a civilian to file a police
complaint with the [Department] or any other entity.” The
consent decree ended in 2013.
C. The Trial Court Orders the City To Comply with
Section 148.6, Subdivision (a)(2)
In 2017 the Police Protective League—an employee
organization4 that represents peace officers employed by the
City—filed this action, seeking a declaration section 148.6,
subdivision (a)(2), was “legally valid [and] enforceable.” The
Police Protective League also sought an order “enjoining the
of conduct by law enforcement officers . . . that deprives persons
of rights, privileges, or immunities secured or protected by the
Constitution or laws of the United States.” (See 42 U.S.C.
former § 14141, eff. Sept. 13, 1994.) Congress has since
renumbered that law as title 34 United States Code section
12601.
4 “Employee organization means . . . [a]ny organization that
includes employees of a public agency and that has as one of its
primary purposes representing those employees in their relations
with that public agency” or “[a]ny organization that seeks to
represent employees of a public agency in their relations with
that public agency.” (Gov. Code, § 3501.)
6
[City] from accepting an allegation of misconduct against” peace
officers represented by the Police Protective League “without the
complainant being required to read and sign” the required
advisory.
The parties stipulated at trial that, after the consent decree
ended in 2013, the City declined to require complainants filing
allegations of police misconduct to sign the advisory required by
section 148.6. The Police Protective League called one witness,
Officer Steve Gordon, the director of the Police Protective League,
who testified that serious complaints against officers may result
in the Los Angeles Police Department removing the officers from
an assignment pending an investigation. Therefore, Officer
Gordon stated, gang members try to “get rid of an officer” by
“continually mak[ing] complaints.” Gordon testified that false
complaints against an officer “could” adversely affect the officer’s
opportunity for promotion, but that he was not aware whether
the police department had ever denied an officer a promotion
because of a false complaint. He also testified that, if a complaint
against an officer were adjudicated false, it would not affect the
officer’s ability to transfer to a different unit or division.
In its trial brief the City argued the court should not issue
an injunction requiring the City to comply with section 148.6
because the statute violates the First Amendment. Citing
Chaker, supra, 428 F.3d 1215, the City argued the statute was an
impermissible content- and viewpoint-based speech restriction
because it criminalized knowingly false complaints against police
officers, but not “false statements by police officers or witnesses
in the same context.”
The trial court ruled section 148.6, subdivision (a)(2), was
not unconstitutional under the First Amendment. The court
7
ruled the California Supreme Court held in Stanistreet, supra,29 Cal.4th 497 that “section 148.6 falls within all the categories
of permissible ‘content discrimination’ identified by the [United
States] Supreme Court . . . .” Recognizing “a split of authority
between the California Supreme Court and the Ninth Circuit,”
the trial court concluded it was bound by the California Supreme
Court’s decision in Stanistreet. The trial court declared section
148.6, subdivision (a)(2), is valid and enforceable and enjoined
the City “from accepting an allegation of misconduct against a
peace officer without requiring the complainant to read and sign
the advisory set forth in Penal Code [section] 148.6, subdivision
(a)(2).”5 The City timely appealed.
DISCUSSION
A. The City Has Standing
Relying on Lockyer v. City and County of San Francisco
(2004) 33 Cal.4th 1055 (Lockyer), the Police Protective League
argues the City does not have standing to appeal or to raise its
constitutional arguments. In Lockyer a city clerk refused to
enforce then-existing provisions of California’s marriage statutes
that limited “the granting of a marriage license and marriage
certificate only to a couple comprised of a man and a woman,”
after the mayor of the city determined the marriage statutes
violated the California Constitution. (Id. at pp. 1067, 1070.)
5 The trial court stayed the injunction “until either (1) the
time to file an appeal has expired and no timely notice of appeal
has been filed or (2) a timely notice of appeal is filed and the
Court of Appeal issues a remittitur or the appeal is dismissed.”
Thus, the injunction is currently stayed.
8
Ruling the clerk could not refuse to enforce the statutes, the
California Supreme Court stated that, “under California law, the
determination whether a statute is unconstitutional and need not
be obeyed is an exercise of judicial power and thus is reserved to
those officials or entities that have been granted such power by
the California Constitution.” (Id. at p. 1093.) Therefore, the
Supreme Court held, “a local public official, charged with the
ministerial duty of enforcing a statute, generally does not have
the authority, in the absence of a judicial determination of
unconstitutionality, to refuse to enforce the statute on the basis
of the official’s view that it is unconstitutional.” (Id. at p. 1082.)
According to the Police Protective League, because the City has a
ministerial duty to comply with section 148.6, subdivision (a)(2),
the City may not refuse to comply because it believes the statute
is unconstitutional.
This argument does not implicate the City’s standing to
appeal. “Under Code of Civil Procedure section 902, ‘[a]ny party
aggrieved’ may appeal a judgment.” (Hernandez v. Restoration
Hardware, Inc. (2018) 4 Cal.5th 260, 263.) “An aggrieved person,
for this purpose, is one whose rights or interests are injuriously
affected by the decision in an immediate and substantial way,
and not as a nominal or remote consequence of the decision.”
(In re. K.C. (2011) 52 Cal.4th 231, 236; see County of Riverside v.
Public Employment Relations Bd. (2016) 246 Cal.App.4th 20, 27.)
An aggrieved party includes “the party against whom an
appealable order or judgment,” including an injunction, “has been
entered.” (Ely v. Frisbie (1861) 17 Cal. 250, 251; see County of
Riverside, at p. 27.) The City is a party against whom an
appealable judgment that includes an injunction has been
entered. And the City’s interests are not remote—the judgment
9
enjoins the City from continuing to engage in a prior course of
conduct (accepting unsigned complaints alleging misconduct by a
peace officer). That is all that is required for standing to appeal.
(See K.C., at p. 237 [“standing to appeal is construed liberally,
and doubts are resolved in its favor”].)6
The Police Protective League’s argument, more properly
framed, is that under Lockyer the City’s assertion that section
148.6 is unconstitutional is not a valid defense to the Police
Protective League’s request for an injunction ordering it to
comply with the statute.7 The Police Protective League, however,
forfeited this argument by not raising it in the trial court.
(See Richey v. AutoNation, Inc. (2015) 60 Cal.4th 909, 920,
fn. 3; Reid v. City of San Diego (2018) 24 Cal.App.5th 343,
357.) In addition, as the City argues, the California Supreme
6 The Police Protective League similarly asserts that the
constitutionality of section 148.6 is a “nonjusticiable” issue. This,
too, is incorrect. “California courts decide only justiciable
controversies and do not resolve lawsuits that are not based on
an actual controversy.” (Bichai v. Dignity Health (2021)
61 Cal.App.5th 869, 879.) For example, “unripeness and
mootness describe situations where there is no justiciable
controversy.” (Ibid.) “Where there is no justiciable controversy
the proper remedy is not to render judgment for one side or the
other, but to dismiss.” (Connerly v. Schwarzenegger (2007)
146 Cal.App.4th 739, 752.) The Police Protective League
effectively admitted there was a justiciable controversy when it
filed a lawsuit seeking a judicial declaration and injunction. It
also asks us to affirm the judgment, not to vacate the judgment
or order the trial court to dismiss the action.
7 The Court in Lockyer did not refer to the issue as one of
“standing.”
10
Court in Lockyer held only that officials may not refuse to enforce
a statute “in the absence of a judicial determination of
unconstitutionality.” (Lockyer, supra, 33 Cal.4th at pp. 1067,
1069, 1082.) Here, there is a judicial determination of
unconstitutionality—the Ninth Circuit in Chaker held section
148.6 violates the First Amendment. As has at least one other
federal court. (See Hamilton v. City of San Bernardino (C.D.Cal.
2000) 325 F.Supp.2d 1087, 1095.)8
B. Section 148.6 Is Not an Impermissible Content- or
Viewpoint-based Speech Restriction
1. Applicable First Amendment Principles
Under the First Amendment to the United States
Constitution, “governments have ‘“no power to restrict expression
because of its message, its ideas, its subject matter, or its
content.”’” (National Institute of Family and Life Advocates v.
Becerra (2018) ___ U.S. ___, ___ [138 S.Ct. 2361, 2371,
201 L.Ed.2d 835]; see Reed. v. Town of Gilbert (2005)
576 U.S. 155, 163 [135 S.Ct. 2218, 192 L.Ed.2d 236].) “Content-
based regulations ‘target speech based on its communicative
content.’ [Citation.] As a general matter, such laws ‘are
presumptively unconstitutional and may be justified only if the
government proves that they are narrowly tailored to serve
compelling state interests.’” (National Institute, at p. ___
8 We assume without deciding that the decisions in Chaker
and Hamilton, holding section 148.6 violates the United States
Constitution, are “judicial determinations of unconstitutionality”
that allow the City to assert the statute’s unconstitutionality as a
defense in this action.
11
[138 S.Ct., at p. 2371]; see Reed, at p. 163.) Viewpoint
discrimination, where the “[g]overnment discriminat[es] among
viewpoints[,] is a ‘more blatant’ and ‘egregious form
of content discrimination . . . .’” (Reed, at p. 168; accord,
McCullen v. Coakley (2014) 573 U.S. 464, 482-483
[134 S.Ct. 2518, 189 L.Ed.2d 502].)9
2. Stanistreet
In Stanistreet a jury convicted the defendant of violating
section 148.6. (Stanistreet, supra, 29 Cal.4th at p. 501.) The
Court of Appeal reversed the judgment, holding section 148.6 was
unconstitutional under the First Amendment “because it
proscribes knowingly false accusations of misconduct against
peace officers only and not against others,” thereby “selectively
prohibit[ing] expression because of its content. (Ibid.) The
California Supreme Court reversed. The Supreme Court
acknowledged the statute was a content-based speech restriction
because it criminalized false allegations of misconduct against
peace officers (only), and not (for example) firefighters,
paramedics, teachers, and elected officials. (Id. pp. 503-504, 508.)
But the California Supreme Court held the statute fell within
each of the “three categories of content discrimination that . . .
are permissible” under the United States Supreme Court’s
decision in R.A.V. v. City of St. Paul, Minn. (1992) 505 U.S. 3779 The California “state Constitution’s free speech provision is
‘at least as broad’ as [citation] and in some ways is broader than
[citations] the comparable provision of the federal Constitution’s
First Amendment.” (Beeman v. Anthem Prescription
Management, LLC (2013) 58 Cal.4th 329, 341; see Cal. Const.,
art. I, § 2.) The City does not challenge section 148.6 under the
California Constitution.
12
[112 S.Ct. 2538, 120 L.Ed.2d 305] (R.A.V.). (See Stanistreet, at
p. 506.)
In R.A.V. the United States Supreme Court identified three
permissible types of content-based restrictions that do not “pose
[the] threat” that “‘the Government may effectively drive certain
ideas or viewpoints from the marketplace . . . .’” (R.A.V., supra,
505 U.S. at p. 387.) The first is where “the basis for the content
discrimination consists entirely of the very reason the entire class
of speech at issue is proscribable.” (Id. at p. 388.) The second is
where the speech is “associated with particular ‘secondary effects’
of the speech, so that the regulation is ‘justified without reference
to the content of the . . . speech . . . .’” (Id. at p. 389.) And the
third is where “the nature of the content discrimination is such
that there is no realistic possibility that official suppression of
ideas is afoot.” (Id. at p. 390.) As we will discuss in more detail,
the California Supreme Court in Stanistreet held all three
exceptions applied to section 148.6, subdivision (a)(2), because of
the state’s requirement, unique to peace officers, that agencies
must investigate and retain a record of all complaints of
misconduct. (Stanistreet, supra, 29 Cal.4th at pp. 508-510.)
3. Chaker
Three years after the California Supreme Court decided
Stanistreet, the United States Court of Appeals for the Ninth
Circuit held in Chaker, supra, 428 F.3d 1215 that section 148.6
violated the First Amendment. In Chaker a jury convicted the
defendant in California state court of violating section 148.6. (Id.
at p. 1217.) The defendant filed a petition for writ of habeas
corpus in the United States District Court, alleging section 148.6
violated the First Amendment. The district court denied the
13
petition, but the Ninth Circuit reversed. (Id. at p. 1218.) The
Ninth Circuit held section 148.6 was an impermissible viewpoint-
based speech restriction because “[o]nly knowingly false speech
critical of peace officer conduct during the course of a complaint
investigation [was] subject to prosecution under section 148.6,”
while “[k]nowingly false speech supportive of peace officer
conduct [was] not similarly subject to prosecution.” (Id. at
p. 1228.) The Ninth Circuit in Chaker also rejected as a valid
basis for the restriction the “state’s asserted interest in saving
valuable public resources and maintaining the integrity of the
complaint process.” (Id. at p. 1227.)10
4. The City’s Constitutional Challenge Is
Inconsistent with the Supreme Court’s Analysis
in Stanistreet
Relying on Chaker, the City argues section 148.6 “is a
flagrant content and viewpoint-based restriction on speech,
applying only to knowingly false statements against a police
officer but not to knowingly false statements in favor of police
officers . . . .” The City also argues the Supreme Court’s decision
in Stanistreet has “nothing to do” with the City’s argument
because “Stanistreet never considered whether Section 148.6’s
conflicting treatment of false complaints and false
commendations was an acceptable regulation of speech.”
We read Stanistreet differently. True, the Supreme Court
in Stanistreet did not reject the exact argument the City now
makes for why section 148.6 is an impermissible content- and
10 The court in Chaker discussed R.A.V., but did not analyze
the three exceptions to content-based speech restrictions the
California Supreme Court in Stanistreet applied to section 148.6.
14
viewpoint-based speech restriction. But the California Supreme
Court in Stanistreet held all “three categories of content
discrimination [the United States Supreme Court identified in
R.A.V.] that do not threaten to drive ideas or viewpoints from the
marketplace and hence are permissible . . . apply here.”
(Stanistreet, supra, 29 Cal.4th at p. 508.) And the California
Supreme Court’s analysis of why the three R.A.V. exceptions
apply to section 148.6 applies to the City’s arguments.
Regarding the first R.A.V. exception—where “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. 388)—the California Supreme Court held: “The
reason the entire class of speech at issue—knowingly false
statements of fact—is proscribable has ‘special force’ [citation]
when applied to false accusations against peace officers.”
(Stanistreet, supra, 29 Cal.4th at p. 508.) The California
Supreme Court explained that, when “a person makes a
complaint against a peace officer,” 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”
and that therefore “the potential harm of a knowingly false
statement is greater . . . than in other situations.” (Ibid.) This
reasoning applies whether section 148.6 is viewed as a restriction
based on whom the complainant accuses of misconduct (e.g.,
police officer or firefighter) or as a restriction based on whether a
person is accusing an officer of misconduct or commending the
officer for his or her service. When a person commends an officer,
an agency is not legally obligated to investigate or retain the
commendation. Section 832.5 requires agencies to investigate
only “complaints by members of the public” and to retain the
15
“complaints and any reports or findings relating to these
complaints . . . .” (§ 832.5, subd. (a)(1), (2).)
As for the second R.A.V. exception—where the category of
proscribed speech is “associated with particular ‘secondary
effects’ of the speech” (R.A.V., supra, 505 U.S. at p. 389)—the
California Supreme Court in Stanistreet held “knowingly false
accusations of misconduct against a peace officer have
substantial secondary effects—they trigger mandatory
investigation and record retention requirements” that do not
apply to other persons. (Stanistreet, supra, 29 Cal.4th at p. 641.)
In addition, “[p]ublic resources are required to investigate these
complaints, resources that could otherwise be used for other
matters; the complaints may adversely affect the accused peace
officer’s career, at least until the investigation is complete; and
the complaints may be discoverable in criminal proceedings.”
(Ibid.) And again, (false) commendations of officers do not trigger
mandatory investigation and retention requirements that
demand use of public resources.11 It is hard to see, and the City
does not explain, how false statements commending an officer or
11 Quoting Chaker, supra, 428 F.3d at page 1226, the City
argues “‘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.’”
A peace officer or a witness who makes false statements during
an investigation is certainly blameworthy. But once a complaint
is filed, an agency must complete an investigation of the
misconduct allegations; the marginal cost and additional “waste”
of public resources caused by investigating false statements made
after the complaint are more difficult to quantify. In contrast, a
person who chooses to file a knowingly false complaint
necessarily wastes public resources by triggering the
investigation.
16
defending an officer against alleged misconduct could adversely
affect anyone’s career. While complaints against an officer
remain in the officer’s personnel file and may be discoverable in
future criminal proceedings where the officer is a witness, false
statements defending the officer and accusations by an officer or
against a complainant are less likely to surface.
On the final R.A.V. exception—where “the nature of the
content discrimination is such that there is no realistic possibility
that official suppression of ideas is afoot” (R.A.V., supra, 505 U.S.
at p. 390)—the California Supreme Court in Stanistreet held
there was “no realistic possibility of official suppression of ideas.”
(Stanistreet, supra, 29 Cal.4th at p. 473.) The California
Supreme Court stated the Legislature did not suppress “all
complaints of police misconduct, only knowingly false ones . . . .”
(Ibid.) According to the California Supreme Court, the
Legislature did not render complaints critical of peace officers a
“‘disfavored subject’” because such complaints were, “in other
respects, favored.” The Legislature actually “elevate[d] the
status” of complaints against peace officers by “requir[ing] their
investigation and retention of records” and, in doing so, sought
only to strike a balance by penalizing “those who invoke that
status with knowingly false complaints.” (Ibid.)
The Supreme Court’s analysis in Stanistreet again applies
whether section 148.6 is considered a restriction based on whom
the complainant accuses of misconduct or a restriction based on
whether the speaker complains about or commends a peace
officer. Because the Legislature elevated the status of
misconduct complaints against peace officers by imposing
mandatory investigation and retention requirements—an
elevation it did not extend to other comments about peace
17
officers—there is no realistic possibility the Legislature intended
to suppress the viewpoint of speakers critical of such officers.
Therefore, section 148.6 does not “raise[ ] the specter that the
Government [was attempting to] drive certain ideas or viewpoints
from the marketplace . . . .” (Stanistreet, supra, 29 Cal.4th at
p. 508, citing R.A.V., supra, 505 U.S. at p. 388.)
The City does not meaningfully explain why the California
Supreme Court’s analysis in Stanistreet of the third exception in
R.A.V. would not apply to the City’s viewpoint-based argument.
Instead, the City urges us to adopt the reasoning of Chaker and
of the two concurring justices in Stanistreet who would have held
the third exception in R.A.V. did not apply to section 148.6. The
concurring opinion in Stanistreet concluded there was a realistic
possibility that criminalizing even false complaints against peace
officers would suppress legitimate ones. (See Stanistreet, supra,29 Cal.4th at pp. 513-514 (conc. opn. of Werdegar, J.).) But our
role is not to second guess a majority opinion of the California
Supreme Court, however persuasive the reasoning of concurring
or dissenting opinions may be. (See Jeld-Wen, Inc. v. Superior
Court (2005) 131 Cal.App.4th 853, 868 [“an appellate court may
not properly disregard Supreme Court authority in favor of a
[different] ruling that it prefers”]; In re Marriage of Bryant (2001)
91 Cal.App.4th 789, 795 [“A principle stated in a California
Supreme Court opinion is not the opinion of the court unless it is
agreed to by at least four of the justices.”].)
The City argues that, because “Stanistreet and Chaker
considered very different content-based distinctions,” and
“[b]ecause an opinion has no authority regarding an issue it did
not address,” we can follow the Ninth Circuit’s holding in Chaker
rather than the California Supreme Court’s holding in
18
Stanistreet. We cannot. Even statements by the California
Supreme Court that do “not possess the force of a square holding
may nevertheless be considered highly persuasive, particularly
when made . . . after careful consideration, or in the course of an
elaborate review of the authorities . . . .” (Mero v. Sadoff (1995)
31 Cal.App.4th 1466, 1472-1473.) Although the specific
arguments the California Supreme Court rejected in Stanistreet
are somewhat different from those the City advances here, the
Supreme Court’s reasoning in Stanistreet applies. That’s enough
to control our decision here. (See Pogosyan v. Appellate Division
of Superior Court (2018) 26 Cal.App.5th 1028, 1037 [“we must
examine the questions actually presented” to the Supreme Court
and how the Supreme Court’s “reasoning led to the statements at
issue to determine the extent to which we must—or should—
follow them”]; see also Masellis v. Law Office of Leslie F. Jensen
(2020) 50 Cal.App.5th 1077, 1093 [following the “Supreme Court’s
dicta” where the appellant did not identify “a compelling reason
for rejecting [the] Supreme Court’s statements”].)12
12 The City’s insistence that the California Supreme Court
“considered” a different content-based distinction than the one
the City makes here is incorrect. In Stanistreet the respondents
devoted an entire section of their brief in the Supreme Court to a
viewpoint discrimination challenge to section 148.6 that was
essentially identical to the City’s argument. (See People v.
Stanistreet, No. S102722, Answer Brief on the Merits, filed
May 24, 2002, at p. 17.)* For example, the respondent in
Stanistreet argued in its brief: “The statute and the required
statutory advisory make it clear that only knowingly false
statements ‘AGAINST AN OFFICER’ can be criminally punished.
[Citation.] However, there is no threat of criminal punishment
for knowingly false statements that the officer might make about
19
The City also argues Stanistreet has “questionable
legitimacy in the wake of” the United States Supreme Court’s
decision in U.S. v. Alvarez (2012) 567 U.S. 709 [132 S.Ct. 2537,
183 L.Ed.2d 574]. In Alvarez six justices of the United States
Supreme Court held the Stolen Valor Act of 2005—which made it
a crime for a person to falsely represent he or she was awarded
the Congressional Medal of Honor—violated the First
Amendment. (See id. at p. 715; id. at p. 730 (conc. opn. of
Breyer, J.).) A plurality of the United States Supreme Court
stated there is no “general exception to the First Amendment for
false statements.” (Id. at p. 718.) In Stanistreet the California
Supreme Court stated that “knowingly false statements of fact
are constitutionally unprotected.” (Stanistreet, supra, 29 Cal.4th
at pp. 505-506.) Seizing on the difference in High Court
language, the City argues Alvarez overruled the “legal pillar upon
which the Stanistreet holding rested.” The City, however, reads
far too much into the California Supreme Court’s statement in
Stanistreet. Despite stating that false speech was “unprotected,”
the California Supreme Court recognized that “constitutional
protection is not withheld from all such” false statements even
assuming they, “by themselves, have no constitutional value.”
(Id. at p. 637.) More importantly, the California Supreme Court
the citizen in response to the complaint.” (Id. at p. 18,
capitalization in original.)
* We take judicial notice of the respondent’s answer brief in
Stanistreet “for the purpose of determining the procedural
posture of [the] case before the” California Supreme Court.
(Davis v. Southern California Edison Co. (2015) 236 Cal.App.4th
619, 632, fn. 11; see Evid. Code, §§ 452, subd. (d), 459; People v.
Sanchez (1995) 12 Cal.4th 1, 85, fn. 10 [taking judicial notice of
a brief filed in a different appeal], disapproved on another
ground in People v. Doolin (2009) 45 Cal.4th 390.)
20
assumed a content-based restriction on even unprotected speech
would violate the First Amendment unless one of the exceptions
the United States Supreme Court enumerated in R.A.V. applied.
(See id. at p. 638.)13
Finally, the City contends that, because the Ninth Circuit
in Chaker and at least one district court have held section 148.6
violates the First Amendment,14 the City “faces real consequences
if it enforces section 148.6 by including the admonition.” That
may be—the City does seem caught between the Scylla of Chaker
and the Charybdis of Stanistreet. But as a California
intermediate appellate court, we must, when considering federal
questions, “‘follow the decisions of the California Supreme Court,
unless the United States Supreme Court has decided the same
question differently.’” (Winns v. Postmates Inc. (2021)
13 Other language in Alvarez supports the California Supreme
Court’s holding in Stanistreet that section 148.6 does not violate
the First Amendment. The plurality in Alvarez identified several
“examples of regulations on false speech” it did not intend to
undermine, including the prohibition in title 18 United States
Code section 1001 “on false statements made to Government
officials, in communications concerning official matters . . . .”
(United States v. Alvarez, supra, 567 U.S. at p. 720.)
14 At least one state supreme court, however, has upheld a
statute similar to section 148.6 against a challenge essentially
identical to the City’s, disagreeing with the Ninth Circuit’s
decision in Chaker. (See State v. Crawley (Minn. 2012)
819 N.W. 2d 94, 109, 114 [“Because speech that is supportive of
peace officer conduct does not fall within the unprotected
category of defamation, the statute does not discriminate on the
basis of viewpoint.”], cert. den. 568 U.S. 1212 [133 S.Ct. 1493,
185 L.Ed.2d 548].)
21
66 Cal.App.5th 803, 811; see Correia v. NB Baker Electric, Inc.
(2019) 32 Cal.App.5th 602, 619.) Unless and until the California
Supreme Court reconsiders its decision in Stanistreet (or the
United States Supreme Court considers the constitutionality of
section 148.6 or an analogous statute), we may not decide section
148.6 constitutes an impermissible restriction on content-based
or viewpoint-based speech.
Which leaves the City in a practical quandary: The City
must either disobey a state court injunction or enforce a statute
federal courts have held is unconstitutional and cannot be
enforced. The City currently has a temporary reprieve from this
dilemma because the trial court stayed the injunction until this
court issues its remittitur, which will not occur until the Supreme
Court rules on a petition for review, if one is filed (or after the
time to file such a petition expires). In the absence of
intervention by the California Supreme Court (or the United
States Supreme Court), the stay will expire, and the injunction
will take effect.
C. The Advisory and Signature Requirements of Section
148.6 Do Not Chill Protected Speech
The City also argues section 148.6, subdivision (a)(2),
violates the First Amendment by placing an impermissible
burden on speech. According to the City, the requirement that
complainants sign an advisory containing “a preemptive and
explicit threat of criminal prosecution” for the filing of false
complaints also deters people from filing good faith complaints.
The California Supreme Court in Stanistreet rejected this
argument. The Supreme Court specifically considered whether
the requirement in section 148.6, subdivision (a)(2), that
22
complainants read and sign an admonition explaining the
“criminal sanction for knowingly false complaints” demonstrated
that “official suppression of ideas [was] indeed afoot.”
(Stanistreet, supra, 29 Cal.4th at p. 510.) The Supreme Court
held it did not: “That admonition merely advises complainants of
the law and impresses on them the significance of the formal
complaint. Warning people of the consequences of a knowingly
false complaint is no more impermissible than advising people
they are signing a document or testifying under penalty of
perjury. The explanation and admonition do not invalidate the
statute.” (Ibid.) Absent a contrary ruling by the United States
Supreme Court, we may not second guess the California Supreme
Court on this (or any) issue.
D. The City Forfeited Its Argument Section 148.6
Violates the First Amendment by Prohibiting
Anonymous Complaints
Finally, the City contends for the first time, on appeal,
section 148.6, subdivision (a)(2), violates the First Amendment
because, by requiring complainants to sign the admonition, it
prohibits persons from anonymously reporting government
misconduct. This is one argument the California Supreme Court
in Stanistreet did not consider.
“[T]he First Amendment right of freedom of speech includes
the right to remain anonymous,” at least for some types of
speech. (Huntley v. Public Utilities Commission (1968) 69 Cal.2d
67, 73.) “‘[J]udicial recognition of the constitutional right to
publish anonymously is a long-standing tradition . . . .
“Persecuted groups and sects from time to time throughout
history have been able to criticize oppressive practices . . . either
23
anonymously or not at all.”’” (John Doe 2 v. Superior Court
(2016) 1 Cal.App.5th 1300, 1310.) The United States Supreme
Court has recognized the right to speak anonymously, for
example, when distributing handbills and pamphlets (see, e.g.,
Watchtower Bible Tract Society of New York, Inc. v. Village of
Stratton (2002) 536 U.S. 150, 166-167 [122 S.Ct. 2080,
153 L.Ed.2d 205]; McIntyre v. Ohio Elections Com. (1995)
514 U.S. 334, 357 [115 S.Ct. 1511, 131 L.Ed.2d 426]; Talley v.
California (1960) 362 U.S. 60, 64-65 [80 S.Ct. 536, 4 L.Ed.2d
559]) and when circulating ballot-initiative petitions (see Buckley
v. American Constitutional Law Foundation, Inc. (1999)
525 U.S. 182, 199-200 [119 S.Ct. 636, 112 L.Ed.2d 599].)
There may be some merit to the City’s anonymity
argument. The City, however, forfeited the argument by not
making it in the trial court. (See Jackpot Harvesting Co., Inc. v.
Superior Court (2018) 26 Cal.App.5th 125, 154 [“As a general
rule, ‘constitutional issues not raised in earlier civil proceedings
are waived on appeal.’”]; In re M.H. (2016) 1 Cal.App.5th 699, 713
[by failing to raise the constitutional challenge in the trial court,
appellant forfeited the argument a statute violated the First
Amendment]; Fourth La Costa Condominium Owners Assn. v.
Seith (2008) 159 Cal.App.4th 563, 585 [constitutional issues not
raised in the trial court are forfeited on appeal].) Indeed,
applying the forfeiture rule here is particularly appropriate given
that “there is no absolute right to anonymity” and that a court
must balance the right against the government’s interest in
requiring disclosure of identifying information. (Huntley v.
Public Utilities Commission, supra, 69 Cal.2d at p. 75.) In this
case neither side presented evidence of the state’s interests in
requiring complainants to sign the advisory required by section
24
148.6, subdivision (a)(2), so that the trial court could balance
those interests against citizens’ right to file complaints of police
misconduct anonymously. (See In re N.R. (2017) 15 Cal.App.5th
590, 598 [where an argument “involves an issue of fact rather
than a pure question of law,” it is “forfeited by appellant’s failure
to raise it below”]; Blankenship v. Allstate Ins. Co. (2010)
186 Cal.App.4th 87, 105 [“arguments raised for the first time on
appeal” that “involve questions of fact” are forfeited];
Zimmerman, Rosenfeld, Gersh & Leeds LLP v. Larson (2005)
131 Cal.App.4th 1466, 1488 [an argument is forfeited “if it was
not raised below and requires consideration of new factual
questions”].)
25
DISPOSITION
The judgment is affirmed.
SEGAL, J.
We concur:
PERLUSS, P. J.
WISE, J. *
* Judge of the Alameda County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
26
PERLUSS, P. J., Concurring
I fully agree with, and have signed, the court’s opinion
adhering to the Supreme Court’s decision in People v. Stanistreet
(2002) 29 Cal.4th 497, holding Penal Code section 148.6
(section 148.6) is not an unconstitutional restraint on speech.
I add this grace note to briefly emphasize several issues our
opinion does not address because the City focused its defense of
the Police Protective League’s lawsuit on the rights of individuals
seeking to complain about police misconduct, not the City’s own
rights and responsibilities.
First, Los Angeles is a charter city. (See Gov. Code,
§ 34101.) As the Supreme Court explained in State Building &
Construction Trades Council of California v. City of Vista (2012)
54 Cal.4th 547 (City of Vista), “Charter cities are specifically
authorized by our state Constitution to govern themselves, free of
state legislative intrusion, as to those matters deemed municipal
affairs. Article XI, section 5, subdivision (a) of the California
Constitution provides: ‘It shall be competent in any city charter to
provide that the city governed thereunder may make and enforce
all ordinances and regulations in respect to municipal affairs,
subject only to restrictions and limitations provided in their
several charters and in respect to other matters they shall be
subject to general laws. City charters adopted pursuant to this
Constitution shall supersede any existing charter, and with
respect to municipal affairs shall supersede all laws inconsistent
therewith.’” (Id. at p. 555; italics omitted.) Known as the home
rule doctrine, the broad authority of charter cities was originally
“‘enacted upon the principle that the municipality itself knew
better what it wanted and needed than the state at large, and to
give that municipality the exclusive privilege and right to enact
direct legislation which would carry out and satisfy its wants and
needs.’ [Citation.] The provision represents an ‘affirmative
constitutional grant to charter cities of “all powers appropriate for
a municipality to possess . . .” and [includes] the important
corollary that “so far as ‘municipal affairs’ are concerned,” charter
cities are “supreme and beyond the reach of legislative
enactment.”’” (Id. at pp. 555-556; see Johnson v. Bradley (1992)
4 Cal.4th 389, 394-398; California Fed. Savings & Loan Assn. v.
City of Los Angeles (1991) 54 Cal.3d 1, 12 (California Fed.
Savings).)
Article XI, section 5, subdivision (b), of the California
Constitution sets out a nonexclusive list of four core categories
that are, by definition, “municipal affairs.” First on that list is
“the constitution, regulation, and government of the city police
force.” (See Johnson v. Bradley, supra, 4 Cal.4th at p. 398.)
Thus, if the City authorizes its police department to accept
complaints of misconduct without a signed advisory, it may not
be within the authority of the Legislature to prohibit it from
doing so. (See generally City of Huntington Beach v. Becerra
(2020) 44 Cal.App.5th 243, 254, 259 [“[h]ome rule authority
under article XI, section 5 of the California Constitution does not
mean charter cities can never be subject to state laws that
concern or regulate municipal affairs”; the Supreme Court’s
analytical framework articulated in City of Vista and California
Fed. Savings “appl[ies] to a state law that is claimed to intrude
on a charter city’s right under article XI, section 5(b) to create,
regulate, and govern a police force”].)
Second, although section 148.6 provides a law enforcement
agency “shall” require a complainant to read and sign the
advisory, “shall” can be construed as mandatory or directory.
2
(People v. Ledesma (1997) 16 Cal.4th 90, 95.) “When, as here, a
statute sets forth a procedural requirement but does not set forth
any penalty for noncompliance, a party may reasonably question
whether the statute is merely directory, not mandatory. ‘[T]he
“mandatory” or “directory” designation does not refer to whether
a particular statutory requirement is obligatory or permissive,
but instead denotes “‘whether the failure to comply with a
particular procedural step will or will not have the effect of
invalidating the governmental action to which the procedural
requirement relates.”’” (People v. Gray (2014) 58 Cal.4th 901,
909; see Cal-Air Conditioning, Inc. v. Auburn Union School
Dist. (1993) 21 Cal.App.4th 655, 673 [“‘provisions defining time
and mode in which public officials shall discharge their duties
and which are obviously designed merely to secure order,
uniformity, system and dispatch in the public bureaucracy are
generally held to be directory’”].) Even if section 148.6 applies to
the City’s regulation of its police department despite the home
rule doctrine, it is not clear—and we do not decide— that the City
violates the statute by accepting a complaint of police misconduct
without a signed advisory.15
Third, the import of a prohibition against “accepting an
allegation of misconduct against a peace officer” without the
signed advisory—the language of section 148.6 repeated in the
injunction issued by the superior court—is, at best, unsettled. In
an opinion issued in 1996 shortly after the enactment of
15 Presumably, an appellate court decision that section 148.6
could not apply to the City under the home rule doctrine or that it
was directory, not mandatory, would provide a basis for the City
to seek to dissolve the injunction we affirm today.
3
section 148.6, Attorney General Daniel Lungen concluded, “A law
enforcement agency may investigate an allegation of police
misconduct even though the prescribed information advisory form
has not been signed by the person filing the allegation.”
(79 Ops.Cal.Atty.Gen. 163 (1996).) The Attorney General
explained, “The plain wording and legislative history of section
148.6, along with the governing principles of statutory
construction, including the duty to uphold the statute’s
constitutional validity, all support the conclusion that a law
enforcement agency does not lose its power and jurisdiction to
investigate allegations of police misconduct even though it fails to
secure the signature of the complainant on the advisory form.”
(Id. at p. 167.) What, if anything, the City and its police
department may do after receiving, but not “accepting,” an
unsigned or anonymous complaint is yet another issue we do not
decide.
PERLUSS, P. J.
4