Darren Chaker on Penal Code 148.6 and Free Speech
Darren Chaker explains how California’s false-complaint statute has emerged as a growing point of concern for civil liberties advocates, journalists, and constitutional scholars.
Thank you for reading this post, don't forget to subscribe!Key Facts
- What it is
- A California statute that made it a misdemeanor to knowingly file a false allegation of misconduct against a peace officer.
- Current status
- Unconstitutional and unenforceable.
- Controlling case
- Los Angeles Police Protective League v. City of Los Angeles (2022) 78 Cal.App.5th 1081.
- Earlier ruling
- Chaker v. Crogan, 428 F.3d 1215 (9th Cir. 2005).
- Core defect
- Viewpoint discrimination — it punished false statements against officers but not false statements favoring them.
What Is Penal Code 148.6? Darren Chaker Explains
The statute is a California law that criminalizes knowingly making a false allegation that a peace officer engaged in misconduct. Determining what constitutes a “knowingly false” statement often requires subjective judgment, especially when the speech involves opinion, interpretation, or criticism of official conduct.
How the Law Impacts Free Speech, According to Darren Chaker
When the provision is applied broadly, it can chill protected speech by discouraging individuals from reporting misconduct, expressing opinions, or engaging in public debate.
Why the Statute Matters in First Amendment Cases
In recent First Amendment challenges, civil liberties organizations including the ACLU and Cato Institute have warned that laws like this one can be weaponized to silence dissent. The stakes extend far beyond any single case: if courts permit expansive enforcement, the precedent could embolden government actors to regulate speech indirectly.
Is the Statute Still Enforceable? The Court of Appeal Ruling
Section 148.6(a) is unconstitutional and unenforceable. In Los Angeles Police Protective League v. City of Los Angeles (2022) 78 Cal.App.5th 1081, 1088, the Court of Appeal, Second District, addressed whether the criminal provision and its mandatory admonition requirement (§ 148.6(a)(2)) violate the First Amendment.
The Holding in Los Angeles Police Protective League v. City of Los Angeles
The court examined the law as an ill-defined, asymmetrical criminal provision paired with an unusual admonition requirement.
The Asymmetry That Doomed the Statute: Darren Chaker’s Original Argument
The constitutional defect was selectivity. The statute criminalized knowingly false statements made against peace officers while leaving knowingly false statements made in favor of officers—by witnesses, or by officers themselves during internal investigations—entirely unregulated.
Intermediate Scrutiny and the Stanistreet Reversal
The court analyzed whether the provision could survive constitutional review, observing that the Legislature could have employed less restrictive means rather than imposing a speech-deterring criminal penalty.
What the Ruling Means for Attorneys, Police, and Prosecutors
- For law enforcement agencies: Agencies must amend complaint policies and forms to remove the section 148.6(a)(2) advisory language. They can no longer condition acceptance of a civilian complaint on a signed advisory.
- For prosecutors: No charge may be brought under section 148.6(a)(1).
- For defense and civil-rights attorneys: The decision furnishes persuasive authority in First Amendment retaliation and prior-restraint litigation.
Compliance Deadline and Continuing Obligations
Agencies must remove the advisory language from complaint forms and intake scripts and cannot condition acceptance of a civilian complaint on a signed admonition. Prosecutors may no longer bring charges under the criminal provision.
Darren Chaker’s Role in Challenging the Statute
Darren Chaker continues to advocate for strong First Amendment protections against misuse of the law.
Penal Code 148.6 FAQs: Darren Chaker Answers Common Questions
What is Penal Code 148.6 in California? It is a statute that made it a misdemeanor to knowingly file a false allegation of misconduct against a peace officer. It also required complainants to sign an advisory acknowledging they could be prosecuted, which discouraged legitimate complaints.
Is Penal Code 148.6 still enforceable? No. In Los Angeles Police Protective League v. City of Los Angeles (2022), the Court of Appeal held that both the criminal provision and the mandatory admonition violate the First Amendment.
How did Darren Chaker challenge the statute? Darren Chaker was the named litigant in Chaker v. Crogan, 428 F.3d 1215 (9th Cir. 2005), where the Ninth Circuit first held that the law was unconstitutional viewpoint discrimination.
For deeper analysis, read Darren Chaker’s coverage of the Los Angeles Police Protective League decision invalidating the statute.
