Sunday, May 20, 2007

Viewpoint Discrimination - Chaker v. Crogan

Darren Chaker --- Over a decade ago, I had a car of mine painted. The paint shop up charged me on the price. I offered to pay the original estimate, but was given no option than pay their price or the car would be sold at auction. I made a complaint to the California Department of Consumer Affairs (Bureau of Automotive Repair) who cited the paint shop for not receiving proper authorization to charge for the added mark up. After offering to pay for services contracted for, I subsequently drove my car home with a spare key.
Despite, the fact the paint shop was cited by the Department of Consumer Affairs for not receiving proper authorization for increasing the estimate--the El Cajon Police Department (ECPD) arrested me for theft of services. The case was later dismissed by the court citing no valid contract existed for the increased charges. In fact the court determined there was no legal basis (probable cause) to arrest me and ordered the records destroyed per Penal Code section 851.8. I subsequently made a complaint alleging the arresting detective used excessive force when arresting me for the paint job 'theft' when he twisted my wrist in lieu of simply saying "turn around put your hand behind your back."
The ECPD found the complaint false even though the training manual's spectrum of use of force states 'hands on' arrests should be initiated only when the arrestee is non-compliant. I was totally compliant. I went through one trial, the jury couldn't decide on guilt or innocence, however the second trial---I was convicted of filing a false complaint in violation of Penal Code section 148.6. 
Keeping in mind every beginning has an end---my conviction was the beginning of the end for Penal Code section 148.6, because little did anyone know the ramifications this case would have on law enforcement. In essence, this minor case dragged on for a decade visiting every appellate court in the state, the federal appellate court (9th Circuit) and the United States Supreme Court. In the end, I won against all odds by overturning a unanimous California Supreme Court by finding the statute violated the First Amendment by penalizing only false complaints against police, but not false compliments, thus crystallizing viewpoint discrimination.
So many in law enforcement laughed at the 9th Circuit’s decision and think it was improper and couldn't wait until the U.S. Supreme Court would reverse yet another flawed decision of the 9th Circuit. On May 15, 2006, the U.S. Supreme Court denied the Attorney Generals request for the U.S. Supreme Court to hear the case. Chaker v. Crogan, 428 F. 3d 1215 (9th Cir. 2005), 126 S. Ct. 2023 is FINAL!
The statute was very explicit and lopsided to chill one side of speech while allowing the free flow of false compliments on the other, inasmuch it only protected police--but left firemen, judges, attorneys, school teachers, and other professions without the benefit of protection from false complaints. Should a judge be any less protected from a false complaint of taking bribes, a school teacher molesting kids, or a fireman committing arson? Personally, I think the law should be expanded to include other core public officials. 
Further, although my case was the first of its kind to strike down a penal statute at the federal appellate level. The English language does not possess the words to express my gratitude to the Legal Director of the ACLU (Los Angeles) Marc Rosenbaum, Director of First Amendment Litigation Peter Eliasberg, and former Staff Attorney Dan Tokaji. The passion Marc Rosenbaum demonstrated during the 2 ½ hour oral argument before the 9th Circuit was phenomenal. Marc Rosenbaum is known nationally for constitutional law litigation, and has appeared repeatedly before the U.S. Supreme Court. On a side note, every attorney I have come to know at the ACLU is very well educated (Yale, Harvard grads) and could make a tremendous amount of money in the private sector, however don't due to there passion to help others through the enforcement of the Bill of Rights. The ACLU was my backbone in this case for without them I could not stand.
Nonetheless, in lieu of the State amending the law so a draft could be submitted to the legislature, the State decided to challenge me again by asking the U.S. Supreme Court to hear the case to reverse the 9th Circuit. So, I hired E. Joshua Rosenkranz, also an incredible First Amendment attorney, who worked for two U.S. Supreme Court justices (Scalia & Brennan) and now heads the Appellate Divison for one of the largest firms in the country. See bio, 
Thankfully, once the U.S. Supreme Court considered the briefs submitted the illogical and non-linear thinking of the State, that Joshua Rosenkranz exposed, it rejected the State's request finally bringing an end to this case. I am forever indebted to him for assembling a team of attorneys from across the nation, and an NYU First Amendment scholar to write the winning brief.
Soon after Chaker v. Crogan, which I litigated for early 7 of its 10 year life span, not only did this case strike down PC148.6 in California, and struck down Nevada's analogous statute. The case has been cited over 240 times as authority, written about extensively, and used as the backbone authority in Gibson v. City of Kirkland, 2009 WL 564703, *2+ (W.D.Wash. Mar 03, 2009). My case is a leading case on viewpoint discrimination. 
In a recent case, Chaker v. Crogan was used to vindicate people who filed a complaint against police. Those people were arrested and charged with a law Chaker v. Crogan invalidated! They sued for being arrested and charged with an unconstitutional statute, Penal Code 148.6. The federal court denied the City's motion to dismiss and the case settled. See Cuadra v. City of South San Francisco, 2010 WL 55875, *1+ (N.D.Cal. Jan 04, 2010)
Was it worth it? All that time and effort spent. Why not just pay a fine, get the case expunged after 18 months of informal probation, and move on? No one is above the law, including the State. The law was clearly contrary to the constitution, and the time I personally spent on this case was constructive and in the end---my name and this case will live on forever. I achieved my position through tenacity and intelligence. The ACLU and Joshua added resolve.
Remember, adversity builds character. Absent that, I respect all of your views for who am I to censor speech if I am an advocate of it!!
Of course, remember we all make mistakes as those we elect constantly remind us. There's no reason to look down on those who do. Too frequently, police look down on those they police, now--police are becoming equals to the criminals they seek:
Lower Pay, Lower Standards: Low Moral with San Diego Police
San Diego Police Officer Fire Post-Arrest For Sexual Battery

San Diego Police Officer to Stand Trial For Stalking Fellow Officer:

El Cajon Police Officer Sentenced for Sexual Battery & Bribes:

San Diego Sheriff Deputy Arrested for Murder by Shooting Her in The Face:

San Diego Sheriff Deputy Shot Wife in Face - Sentenced

San Diego Sheriff Deputy Arrested for Embezzlement:

San Diego Sheriff Deputy Arrested For Harboring Fugitive

San Diego Police Officer (21 Years Vetern) Arrested for Sexual Misconduct:

El Cajon Officer Forces Females to Masterbate With His Baton Proven by DNA:

Los Angeles Officer Arrested for Sexual Battery While on Duty:
San Jose Officer Arrested for Molestation:

Los Angeles Officer Arrested for Molestation:

Los Angeles Airport Officer Arrested for Molestation:
Hundreds of California Judge's Are Disciplined and Removed:

Hundreds of California Attorneys Are Disciplined and Disbarred Each Year:

Databases Focusing on Documenting Police Abuse: (searchable police abuse database) (Amnesty Intl. paper on police abuse)

San Diego Federal Grand Jury Indictes San Diego City Council Members for Bribery:

Former San Diego Mayor Convicted of 12 Counts of Perjury, but holds top radio talk show

3 San Diego Superior Court judges indicted for taking bribes: Judges Michael Greer, James Malkus and G. Dennis Adams

Orange County Sheriff Michael Corona Indicted for corruption

And the list goes on...I guess if I remained convicted of a crime of moral turpitude, I would fit in with law enforcement, judges, and public officials. No one is innocent in this game of life.