California recently turned defamation law on its ear, as regards calling the police. Since 1872, anyone calling the police was protected from a civil action for what they said to the police. Now, thanks to a virtue-signaling Legislature, if you witness a crime, you have to consider some very far-reaching ramifications, and think twice before you call the police. Let me set the scene with a hypothetical that will demonstrate what California has done.
A simple parking dispute.
You and your neighbor Bob have an ongoing dispute about whether your visitors can park on the street in front of his house. During a small gathering at your home, you happen to look out the window and see Bob spray painting “no parking!” on one of your guest’s cars. You report the incident to the police, and after seeing paint on Bob’s fingers matching the paint on the car, they take him away for booking.
Bob is quite a jerk, and is already on probation for a prior criminal offense. Painting the car was a clear violation of his probation, so if he can’t figure out a way to beat this rap, he is going to spend some time in jail. So he comes up with a brilliant strategy.
He decides he will sue you in civil court for defamation, claiming you lied when you told the police that you saw him vandalizing the car. Whether or not he will win is of no importance. Rather, his plan is to make you spend tens of thousands of dollars fighting his defamation claim. You will soon realize that you really gain nothing by having Bob prosecuted, beyond seeing justice done. You will at some point ask yourself, “is that justice worth the $50,000 or more I am going to spend on attorneys, fighting against this defamation claim?”
Far beyond the cost, Bob’s lawsuit against you will give him all kinds of opportunities to harass you. His attorneys can make you spend most of your free time responding to discovery, and he can even make you show up at the time and place he chooses, and sit across a table from him while his attorney asks you personal questions at a deposition. Heck, he might even decide to take the deposition himself just so he can have the personal satisfaction of making you answer whatever questions he decides to ask you over the course of seven hours. He can bring in every person who was at your house and put them through the same experience.
The standard for what is relevant is very broad in litigation. Since his claim is that you made up the entire story about him vandalizing the car, he is permitted to try and determine what motivated you to do such a horrible thing. Do you have a thing for his wife, and were trying to get him out of the way? Or maybe you have a thing for him, and are mad that it is unrequited.
Since he will be seeking punitive damages, and such damages are based on your income and net worth, he can ask you to turn over all your financial information. There are protections against this, but you will spend thousands to have your attorney fight the discovery demand in court.
Ultimately, you may decide that the cost of justice is just too high. You will go to Bob and tell him that you won’t testify to what you saw if he will dismiss his defamation action. Bob gets away with vandalizing your friend’s car, and you are out however much money you spent before you decided to cave.
Relax, it was just a nightmare. Or was it?
Prior to 2021, this scenario was entirely fictional. You see, for a statement to be defamatory, it must be UNPRIVILEGED. There are various types of speech that are privileged, even if false. One example is statements that are made in court. Imagine a scenario where a witness could be sued for defamation for what they say in court. They are compelled by subpoena to appear and testify, only to then be sued for defamation for what they said. This would be completely untenable, so California law prohibits legal action based on testimony in court.
The same was true of reports to the police. Specifically to avoid the sort of scenario discussed above, California Civil Code section 47, which establishes a number of privileges, prohibited actions based on reports to the police.
That did not mean that one could lie to the police with impunity. First of all, making a false police report is a criminal act, and could land the liar in jail. Further, if someone lied to the police about you, and you were charged and put on trial, but proved you were innocent, you could then sue the person for malicious prosecution.
But you could not sue that person for defamation, or infliction of emotional distress, or negligence, or any other claim. As confirmed by the California Supreme Court in Hagberg v. California Federal Bank, reports to the police are (or were) absolutely privileged, and cannot be the basis for any legal action. No one ever needed to worry about being sued because they called the police.
Now you need to worry.
But, insanely in my opinion, the California Legislature just decided to change all that with an amendment to Civil Code section 47.
The protective language is still there:
“A privileged publication or broadcast is one made: . . . (b) In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law . . .” Case law has determined that part (3) covers reports to the police.
But the Legislature giveth and taketh away. Effective 2021, it added subpart (b)(5):
“(5) This subdivision does not make privileged any communication between a person and a law enforcement agency in which the person makes a false report that another person has committed, or is in the act of committing, a criminal act or is engaged in an activity requiring law enforcement intervention, knowing that the report is false, or with reckless disregard for the truth or falsity of the report.”
Complicating matters, “law enforcement agency” is not defined. Clearly it applies to the police, but what about animal control, or building code enforcement? Taking a broad interpretation of that term, it appears that you can now be sued for any report to any agency that enforces the law. This is supported by the fact that it is not limited to criminal acts, but includes a report of any act “requiring law enforcement intervention.”
To this some will respond (and the Legislature probably so reasoned) that there is nothing to worry about, so long as you don’t make a false report to any government agency. If that was your reaction, then you did not fully comprehend my long-winded hypothetical.
Even if your report was as pure as the new-driven snow, that will not protect you from all the described harassment. Every criminal can now claim that the report against them was knowingly false, or was made with reckless disregard for the truth. Once the claim is made, it must be litigated.
The police have always been the public’s most direct contact with government. If the next door neighbor’s party is keeping you awake, call the police. You don’t want the neighbor arrested, you just want the police to tell them to turn down the music a little. Now you can be sued for that call because you claimed that the neighbor “was engaged in an activity requiring law enforcement intervention.”
And lest you think there will be some quick way to extricate yourself from this nightmare, there is not. For example, the motion that can sometimes get rid of a case before trial will be of no use. A motion for summary judgment cannot be granted if there is a material factual dispute. In our hypothetical, you could bring a motion for summary judgment on the grounds that your statement to the police was true, because you saw Bob vandalizing the car. But Bob will simply file a declaration saying he did not vandalize the car, and throw in a couple more from friends, claiming they saw him lounging in his pool the entire time. Triable issue; motion denied.
What about an anti-SLAPP motion?
The anti-SLAPP statute, Code of Civil Procedure section 425.16, contains that same protective language as section 47:
“(e) As used in this section, “act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue” includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law . . .”
I find it strange that the Legislature elected to create the right to sue for reports to the police by taking away the privilege in section 47, but left the protection unchanged in section 425.16. It would appear that the new found freedom to sue remains thwarted by the anti-SLAPP statute.
Or perhaps not.
Even though the wording is the same, case law holds that the protection (previously) afforded by section 47 does not serve the same purpose as that of section 425.16. There are two prongs to an anti-SLAPP analysis, and here is how they would play out in our hypothetical.
The first prong of the anti-SLAPP analysis is to determine whether the speech in question falls under the anti-SLAPP statute. You as the defendant must convince the court that your statements to the police were protected. Here, that is an easy one. Bob is suing you for what you said to the police, and under section 425.16 that speech is protected.
That brings us to the second prong. Since you convinced the court that the report falls under the anti-SLAPP statute, the burden then shifts to Bob to show that his claim has some “minimal merit.”
Well, that should be the end of it, right? Bob painted the car – you saw him do it – so how can he possibly convince the court that his case has merit?
Under the old Section 47, you would have been home free. A report to the police was absolutely privileged. Even if Bob could produce someone willing to confess that he was the one who painted the car, not Bob, Bob’s case would still have no merit. Since the report to the police was absolutely privileged, he could not sue you for what you said. There is no amount of evidence Bob could produce to get around this fact.
But now that reports to the police are only conditionally privileged, you will again run smack into an evidentiary problem. Granting an anti-SLAPP motion would in effect deprive Bob of his right to a trial. To keep everything Constitutional, the court can only take away Bob’s right to a trial if, as a matter of law, his evidence will not support a claim. The court is not permitted to weigh any competing evidence, because that is the function of the jury at trial.
So, for purposes of an anti-SLAPP motion, the evidence of the plaintiff is taken as true. The defendant’s evidence is reviewed only to determine whether it supports a defense that negates the claim without any weighing of the evidence. Just as with the motion for summary judgment, you will file a declaration stating that you saw Bob painting the car, and he will file one saying he didn’t paint the car. His must be taken as true, so for purposes of the anti-SLAPP motion, you lied when you told the police that he painted the car. Thus, your report was false, or was made with reckless disregard for the truth. Bob has stated a claim with at least minimal merit. Motion denied. You are going to be in this action until the bitter end.
What was California thinking?
According to the notes of the legislation, the Legislators apparently thought this was a brilliant way to fight discrimination. You may recall the incident in Central Park, caught on video, where a white woman called 911 to report a black man who was complaining about her dog. I don’t know if the Legislators had that specific incident in mind, but it must have been something similar, based on the comments:
(a) It is the intent of the Legislature to end instances of 911 emergency system calls that are aimed at violating the rights of individuals based upon race, religion, sex, gender expression, or any other protected class. Existing law on false police reporting does not address the growing number of cases in which peace officers are summoned to violate the rights of individuals for engaging in everyday activities, such as those individuals essentially living their lives.
(b) All Californians, including people of color, should have the liberty to live their lives, and to go about their business, without living under the threat or fear of being confronted by police. These prejudicial 911 emergency system calls cause mistrust between communities of color and institutions, and those calls further deteriorate community-police relations. This is especially true when the police are summoned as forces of exclusion. Thus, it is incumbent upon the Legislature to end the use of law enforcement as a personal force by people who harbor discriminatory animus.
(c) This act is not intended to discourage individuals who are facing real danger, who want to report a crime, or who are experiencing a medical or psychiatric emergency from making a 911 emergency system call for assistance. However, this act will allow those who have been subject to unfair and prejudicial 911 emergency system calls to regain their agency by seeking justice and restitution through the criminal and civil court system.
This sounds like a laudable goal, but the amendment could have been tailored to better achieve that goal, without opening the floodgates to every criminal who wants to use civil actions as a means to harass genuine victims. How will they “regain their agency?”
