ACLU challenges California law allowing police to sue complainants

The Associated Press

11.13.98

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SAN FRANCISCO — A state law allowing police to sue private citizens for making allegedly false complaints violates free speech, the American Civil Liberties Union said Thursday in a legal action on behalf of a woman who was sued for a brutality complaint.

Such suits by police are on the rise across California, ACLU lawyer John Crew said at a news conference. He said the suits are almost always dismissed or dropped by the officer but can still accomplish their purpose, "to scare people off from filing complaints."

The ACLU's challenge to the law was endorsed by Mary Dunlap, director of San Francisco's Office of Citizen Complaints, which reviews allegations of police misconduct. She said police suits against complainants are "a form of retaliation" that undermines the city's attempt to encourage people to speak up about police wrongdoing.

The 1982 law lets an officer collect damages from a member of the public who has made a complaint motivated by hatred or spite, without reasonable grounds for believing it to be true.

Police unions promoted the law as a way to discourage unfounded and harassing complaints. The ACLU said the law was unneeded, gave police special treatment not enjoyed by any other profession and was easily subject to abuse, as shown by the current case.

Betty J. Evans, a nursing assistant, said she saw a policeman kicking a handcuffed suspect outside her San Francisco apartment in September 1997. She said she called to the officer to stop, then dialed 911. The officer, later identified as Sgt. Joseph K. McCloskey, swore at her as he was leaving, Ms. Evans said.

After a nine-month investigation of her complaint, the Office of Citizen Complaints concluded that McCloskey had kicked the suspect and used profanity, the suit said. A 12-year veteran, he remains on the force, but Ms. Dunlap said her office has recommended review by the city Police Commission, which can suspend or fire officers.

Despite the previous OCC finding of misconduct, McCloskey sued Ms. Evans for $25,000 this September, saying her complaint had been knowingly false and caused him "emotional distress that manifested itself in sleepless nights, lack of appetite, upset stomach, nervousness and irritability."

Papers filed Thursday by Ms. Evans' lawyers and the ACLU seek dismissal of the suit on the grounds that McCloskey cannot prove the complaint was knowingly false. They also argue that the law allowing the suit is unconstitutional.

The law "selectively targets speech critical of peace officers," said the papers signed by ACLU lawyer Alan Schlosser. He said no other public employee can sue a private citizen for filing a government complaint — even a deliberate falsehood — because the legal system protects the right to complain about official misconduct.

A San Francisco judge ruled the law unconstitutional in a similar case in 1984, but the case set no legal precedent, Schlosser said.

Crew, who oversees police misconduct cases for the Northern California ACLU, said no one keeps statistics on suits by police, which are sometimes filed in small claims court. But he said there had been a flurry of cases around the state in the last three years.

McCloskey's lawyer, Theodore Schlink, declined comment and hung up on a reporter who asked him about the ACLU's action.

Thursday's motion invoked another state law that allows a judge to quickly dismiss unfounded suits aimed at suppressing criticism. If she prevails, Ms. Evans can bill McCloskey for her attorneys' fees, an option normally unavailable to defendants in civil cases.

"I think we have the right to report anything we see that we feel is not right," Ms. Evans told reporters. Despite the suit, she said if she saw another "barbaric act" by an officer, she would report it again.