Date: 11-29-2001

Case Style: Donovan Walker v. Bill John Kiousis

Case Number: E029822

Judge: Richli

Court: California Court of Appeals, Fourth District, Division Two

Plaintiff's Attorney: Law Offices of Thomas K. Hadley and Thomas K. Hadley for Plaintiff and Appellant.

Anthony M. Santana for California Association of Highway Patrolmen as Amicus Curiae on behalf of Plaintiff and Appellant.

Defendant's Attorney: Law Offices of Holly H. McGregor, Law Offices of McGregor & Mosier, Holly H. McGregor, and Robert A. Mosier for Defendant and Respondent.

Daniel P. Tokaji and Mark D. Rosenbaum for ACLU Foundation of Southern California as Amicus Curiae on behalf of Defendant and Respondent.

Description: Civil Code section 47 provides generally that statements made in the course of an official proceeding are absolutely privileged. Those statements therefore cannot serve as a basis for civil liability. Civil Code section 47.5, however, creates an exception, allowing a peace officer to bring a defamation action against an individual who knowingly and maliciously files a false complaint about the officer with the officer's employing agency.

As have two federal district courts, we conclude Civil Code section 47.5 impermissibly regulates speech based on the content of the speech and therefore violates the constitutional right of free speech. (Haddad v. Wall (C.D. Cal. 2000) 107 F.Supp.2d 1230; Gritchen v. Collier (C.D.Cal. 1999) 73 F.Supp.2d 1148, revd. on other grounds (9th Cir. 2001) 254 F.3d 807.)

I.

FACTUAL AND PROCEDURAL BACKGROUND

California Highway Patrol (CHP) Officers Donovan Walker and Philip Husband arrested Bill John Kiousis for suspected drunk driving on December 5, 1997. Kiousis pled guilty to a "wet reckless," i.e., reckless driving with consumption of alcohol, on April 29, 1998. (Veh. Code, §§ 23103, 23103.5.)

After pleading guilty, Kiousis filed a citizen complaint against Walker with the CHP. Kiousis alleged that during the arrest Walker had used profanity in speaking to him, had threatened him with physical violence, and had threatened him with three days in jail if he did not take a blood test. Kiousis demanded "appropriate action up to and including termination" of Walker.

The CHP determined there was no merit to Kiousis's allegations, based largely on a tape recording which Walker had made of the traffic stop and arrest.

Walker then sued Kiousis pursuant to Civil Code section 47.5 (section 47.5). That section, enacted in 1982, provides in full: "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 [sic] it was made with spite, hatred, or ill will. Knowledge that the complaint was false may be proved by a showing that the complainant had no reasonable grounds to believe the statement was true and that the complainant exhibited a reckless disregard for ascertaining the truth." Walker's complaint asserted claims for libel and intentional and negligent infliction of emotional distress.

Kiousis moved to strike the complaint pursuant to Code of Civil Procedure section 425.16 (section 425.16), also known as the "SLAPP" (Strategic Lawsuits Against Public Participation) statute. In part, Kiousis argued that section 47.5 is unconstitutional because it selectively targets speech critical of police officers and therefore is an impermissible content-based regulation.

The court granted the motion to strike on the ground that Walker had failed to show he sustained any actual damage from Kiousis's complaint. Therefore, Walker could not show a probability of prevailing in his lawsuit, as required to defeat a motion to strike under section 425.16. Walker appealed.

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