
    Myron S. GRITCHEN, et al., Plaintiff, v. Gordon W. COLLIER, et al., Defendants.
    No. SA CV 98-864-GLT[JW].
    United States District Court, C.D. California, Southern Division.
    Oct. 18, 1999.
    
      Peter J. Eliasberg, ACLU Foundation of Southern California, Los Angeles, CA, for plaintiff.
    Larry J. Roberts, Law Offices of James E. Trott, Fountain Valley, CA, for defendants.
   ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

TAYLOR, District Judge.

Plaintiffs Motion for Summary Judgment is GRANTED.

The Court finds California Civil Code § 47.5, specially authorizing a defamation action by a police officer targeted by a citizen’s false complaint, is unconstitutional.

I. BACKGROUND

In 1998 Plaintiff motorist was stopped by Defendant, a Long Beach Police Department officer. Plaintiff later filed a citizen complaint about the officer’s conduct during the traffic stop. T-he police department found there was no misconduct.

Defendant (through his attorney) sent a letter to Plaintiff threatening a defamation suit under Cal.Civ.Code § 47.5, which states in relevant part:

Notwithstanding Section 47, 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.

Cal.Civ.Code § 47 is a general provision establishing that most publications and broadcasts arising out of official government duties or proceedings are privileged, and therefore cannot be the subject of a defamation action. Section 47.5 creates an exception to the normal privileged status of citizen complaints about public officials by allowing police officer defamation suits against individuals who falsely charge them with misconduct.

Attached is an Appendix prepared by' Plaintiffs attorneys summarizing all states’ laws governing citizen complaints against police officers and other public officials. Some states have an absolute or qualified privilege for citizen complaints against public officials. Others decline to adopt any statutory privilege. California’s statutory scheme is unlike any other state’s, applying one defamation rule to complaints against peace officers, and another rule to complaints against all other public officials.

Plaintiff responded to the Defendant’s threat of a defamation suit with this challenge to the constitutionality of § 47.5. The relevant facts are undisputed and the parties agree the case presents only questions of law. Plaintiff has moved for summary judgment, and Defendant has requested in his Opposition that the Court enter judgment in his favor.

II. DISCUSSION

Plaintiff sues under 42 U.S.C. § 1983, creating a cause of action for any party “depriv[ed] of any rights, privileges, or immunities secured by the Constitution” by someone acting “under color of any statute ... of any State.” Plaintiff alleges his First Amendment right to free speech has been impaired by § 47.5 and Defendant’s actions.

1. Standing

Article III of the Constitution and 28 U.S.C. § 2201 both require that a plaintiff in federal court present an “actual controversy.” See Steffel v. Thompson, 415 U.S. 452, 458, 94 S.Ct. 1209, 1215, 39 L.Ed.2d 505 (1974).

Defendant argues Plaintiff has not presented a justiciable controversy because no action has actually been brought against him under § 47.5, and § 47.5 does not directly restrict Plaintiffs freedom of expression. Plaintiff argues Defendant’s threats to sue for defamation are sufficient to create a justiciable claim.

In determining whether a claim of this sort is justiciable, the issue is “whether any perceived threat to [plaintiff] is sufficiently real and immediate to show an existing controversy” and is not just “imaginary or speculative.” Blum v. Yaretsky, 457 U.S. 991, 1000, 102 S.Ct. 2777, 2784, 73 L.Ed.2d 534 (1982) (citation omitted).

The threat of a defamation suit by Defendant is more than “imaginary or speculative.” Defendant has indicated his intent to file such a suit several times to Plaintiff, and has preserved his ability to do so by placing a temporary hold on his action pending the result of this case. It appears that the threat is immediate enough to create a justiciable controversy. Bland v. Fessler, 88 F.3d 729, 736-37 (9th Cir.1996).

Plaintiff need not wait until Defendant actually files suit. The threat of a lawsuit is not just speculative. There is a justiciable controversy.

2. Color of state law

A § 1983 defendant acts under col- or of state law if he “exercised power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.” West v. Atkins, 487 U.S. 42, 49, 108 S.Ct. 2250, 2255, 101 L.Ed.2d 40 (1988) (citation omitted).

Defendant fits this description. All the relevant events in this case arose out of Defendant’s performance of his job as a police officer. This case involves a provision of state law that was created for, and applies solely to, peace officers.

Defendant has presented no authority to suggest otherwise. Though he rightly argues not all actions taken by state government employees are necessarily under col- or of state law, all of the examples he provides are cases in which the defendants’ actions were well outside the performance of their official duties.

The events in this case, starting with the traffic stop, followed by the citizen complaint, and ending in the threats of a defamation suit under § 47.5, are all unavoidably tied to Collier’s position as a police officer. For purposes of this action, Defendant’s conduct was under color of state law.

3. Constitutionality

In general, states are free to regulate defamatory speech, so long as that regulation meets the constitutional standards in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).

California law generally protects citizen complaints about the conduct of public officials against lawsuits for defamation or libel. See Cal.Civ.Code § 47 (establishing privilege encompassing such complaints). Cal.Civ.Code § 47.5 creates a specific exception to this general protection for citizen complaints made against peace officers.

Section 47.5 restricts defamatory speech against one group of public officials (peace officers), while leaving intact the protections for defamatory speech against other public officials. Within a broad category of proscribable speech (defamation), California has generally chosen not to proscribe that speech when targeted at public officials. Cal.Civ.Code § 47. It has, however, carved out an exception for peace officers. Cal.Civ.Code § 47.5.

This is a form of content-based discrimination, since speech about one group of public officials is treated differently than speech about other public officials. State government content-based discrimi-nations against speech must be examined carefully to determine whether they violate the First Amendment, which is incorporated concerning the states by the Fourteenth Amendment.

The Supreme Court set the test for determining the constitutionality of content-based discriminations against speech in R.A.V. v. City of St. Paul, 505 U.S. 377, 387-90, 112 S.Ct. 2538, 2545-47, 120 L.Ed.2d 305 (1992). Most content-based discrimination is prohibited, but the prohibition “is not absolute” and “applies differently in the context of proscribable speech than in the area of fully protected speech.” Id., 505 U.S. at 387, 112 S.Ct. at 2545.

Content discrimination against a particular type of proscribed speech is permissible when the basis for it “consists entirely of the very reason the entire class of speech at issue is proscribable.” Id., 505 U.S. at 388, 112 S.Ct. at 2545. Content-based discrimination is also permissible if the discrimination is based on “secondary effects” and is “justified without reference to the content of the ... speech.” Id., 505 U.S. at 389, 112 S.Ct. at 2546 (citations omitted). Finally, content-based discrimination might be permissible in other situations, “so long as the nature of the content discrimination is such that there is no realistic possibility that official suppression of ideas is afoot.” Id., 505 U.S. at 390, 112 S.Ct. at 2547.

The basis for the content discrimination in this case does not “consist entirely of the very reason” that defamatory speech is proscribable. Defamatory statements are proscribable because they are false and injurious to their targets. Nothing about the position of a peace officer is inherently tied to the policies underlying the law of defamation, as compared to the position of other government officers.

Nor does the basis for the content discrimination in this case arise out of the policies underlying § 47 and the prevention of defamation suits against citizen complainants by other public officials. That provision and the privilege it creates are designed to “assure utmost freedom of communication between citizens and public authorities whose responsibility is to investigate and remedy wrongdoing.” Imig v. Ferrar, 70 Cal.App.3d 48, 55, 138 Cal.Rptr. 540 (1977). See also Silberg v. Anderson, 50 Cal.3d 205, 213, 266 Cal.Rptr. 638, 786 P.2d 365 (1990) (stating the § 47 privilege for statements in judicial proceedings is designed to “afford ... freedom of access to the courts without fear of being harassed subsequently by derivative tort actions”). The peace officer exception in § 47.5 does not serve this policy.

The content discrimination in this case is not based on “secondary effects.” Because it is a provision authorizing defamation suits, § 47.5 is inherently about speech — it is a direct restriction on the speech of citizen complainants. It is similarly not “justified without reference to the content of the speech,” since it is triggered by the content of a citizen’s complaint — only when a complaint involves a peace officer does the provision apply.

Finally, it cannot be said that the content discrimination in § 47.5 is of a sort where there is “no realistic possibility that official suppression of ideas is afoot.” Though § 47.5 may serve the goal of protecting peace officers from unfounded complaints, it is realistic to conclude it might also be used to discourage legitimate complaints.

Section 47.5 can survive constitutional challenge only if it is “narrowly tailored to serve compelling state interests.” R.A.V., supra, 505 U.S. at 395, 112 S.Ct. at 2549. The Court finds that it is not. Section 47.5 may in fact hinder the policies underlying § 47 by partially blocking the “open channel” of communication between citizens and their government, at least as to one group of public officials. No showing has been made that there is a serious problem of false complaints against police.

Even if the state interest behind the content discrimination in § 47.5 were compelling, the provision is not narrowly tailored to fit that interest. Significant protections from false complaints are already afforded to police officers by their internal oversight agencies, in addition to the possibility of perjury charges for false complainants. See Plaintiffs Reply, pp. 24-25. If these protections are insufficient, California may strengthen existing safeguards or provide procedures to ensure police officers’ careers are not put in jeopardy until after a complaint’s truth is verified.

By treating citizen complaints against police officers differently from complaints against all other government officers, § 47.5 makes an impermissible content-based discrimination against a type of speech. As presently written, it is facially unconstitutional, violating the First and Fourteenth Amendments.

Plaintiffs Motion for Summary Judgment is GRANTED.

APPENDIX

STATE-BY-STATE PRIVILEGES FOR CITIZENS COMPLAINTS

D.C. No special provision for police officers Florida No special rights for police officers, as statute is interpreted by State Supreme Court no applicable provision located “Policeman's Bill of Rights," F.S. 112.532(3X1983) provides that “Every law enforcement officer or correctional officer shall have the right to bring civil suit against any person, group of persons, or organization or corporation, or the head of such organization or corporation, for damages, either pecuniary or otherwise, suffered during the performance of the officer’s official duties or for abridgement of the officer's civil rights arising out of the officer's performance of official duties. Held: facially constitutional by Florida Supreme Court because the Court found the provision to be merely a codification of the common law: “the statute confers on Mesa no right to sue for defamation greater than any right he possesses under Florida law without it." Mesa v. Rodriguez, 357 So. 2d 711,713 (Fla. 1978); as applied challenge not decided. New York Times v. Sullivan, actual malice standard applies to comments and complaints about public officials. See White v. Fraternal Order of Police, 707 F.Supp. 579 (D.D.C. 1989). One who writes communications to police officials concerning alleged misconduct of a police officer is entitled to a qualified privilege against liability for libel and slander. Sawder v. Nolan, 125 A.2d 52 (App. D.C. 1956). Police officers are public officials “subject to fair comment and criticism from any member of the public...” White v. Fletcher, 90 So. 2d 129,131 (Fla. 1956); See also Harrison v. Williams, 430 So. 2d 585 (Fla. Dist CL App. 1983). A citizen complaint filed through the system set up by a Dade County ordinance (Internal Review Panel), was subject to absolute privilege because the IRP proceedings constituted proceedings authorized by law. Gray v. Rodriguez, 481 So. 2d 1298 (Fla. DisL CL App. 1986). Russell v. Smith, 434 So. 2d 342 (Fla. Dist. Ct. App. 1983), held that three letters of complaint written to Chief of Police, Plaintiff Police Officer, and two judges (only one of whom had an, arguably, legitimate legal interest in the subject matter) were subject to a qualified privilege under New York Times v. Sullivan. 
      
      . The only other state that has a law pertaining to police officer lawsuits is Florida. In contrast to California, Florida does not treat complaints against police officers differently from complaints against other public officials, and does not specifically target citizen complaints or any other from of speech. Florida's law, instead, states that: "Every law enforcement officer or correctional officer shall have the right to bring civil suit against any person ... for damages, either pecuniary or otherwise, suffered during the performance of the officer's official duties or for abridgment of the officer's civil rights arising out of the officer's performance of official duties.” Fla. Slat. § 112.532(3). As the Florida Supreme Court has construed it, this section "confers on [the police officer] no right to sue for defamation greater than any right he possesses under Florida law without it.” Mesa v. Rodriguez, 357 So.2d 711, 713 (Fla.1978). Because Florida’s law does not give police officers any special right to sue, it was upheld by the Florida Supreme Court. Id.
      
     
      
      . In January 1999 the Court certified to the California Attorney General that the constitutionality of § 47.5 was "drawn into question” by this action. The Attorney General has elected to take no part in these proceedings.
     
      
      . Where a statute’s existence has a "chilling effect on free expression," it may be challenged even by someone not immediately threatened by it. Dombrowski v. Pfister, 380 U.S. 479, 487, 85 S.Ct. 1116, 1121, 14 L.Ed.2d 22, 29 (1965). Section 47.5 has such an effect, since it imposes greater risk upon citizens who report claimed police misconduct and thereby discourages the filing of complaints.
     
      
      . Defendant relies primarily on Johnson v. Knowles, 113 F.3d 1114 (9th Cir.1997) (finding that ousters of homosexual members by a Republican party committee were not under color of state law because political parties are private, not public entities); and Laxalt v. McClatchy, 622 F.Supp. 737 (finding a U.S. Senator’s demand letter, before filing a defamation action for stories linking him to organized crime, was not under color of state law). This case is distinguishable from both of those, since Collier's actions are inextricably linked to his official position and duties.
     
      
      . Section 47.5 is not the only exception, but it is the only one which applies to a group of people. Section 47 itself contains several exceptions to the privilege, including certain unsworn or malicious allegations in divorce proceedings, communications in furtherance of destruction of evidence, and knowing concealment of an insurance policy in a judicial proceeding.
     