Wednesday, July 27, 2011
Friday, December 18, 2009
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, http://www.orrick.com/lawyers/Bio.asp?ID=225990
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 Policehttp://www.signonsandiego.com/uniontrib/20050710/news_1m10exodus.html
San Diego Police Officer Fire Post-Arrest For Sexual Batteryhttp://www.signonsandiego.com/news/2011/apr/15/sdpd-officer-accused-sexual-assaults-fired/
San Diego Police Officer to Stand Trial For Stalking Fellow Officer:
http://www.10news.com/news/27687744/detail.html
El Cajon Police Officer Sentenced for Sexual Battery & Bribes:
www.10news.com/news/13360496/detail.html
http://www.signonsandiego.com/uniontrib/20070410/news_1m10taylor.html
San Diego Sheriff Deputy Arrested for Murder by Shooting Her in The Face:
http://www.signonsandiego.com/uniontrib/20061216/news_2m16alpine.htmlCopWatch
San Diego Sheriff Deputy Shot Wife in Face - Sentenced
http://www.10news.com/news/17436413/detail.html
San Diego Sheriff Deputy Arrested for Embezzlement:
http://www.10news.com/news/11234793/detail.html
San Diego Sheriff Deputy Arrested For Harboring Fugitive
http://www.nbcsandiego.com/news/local/San-Diego-Sheriffs-Deputy-Arrested-125842248.html
San Diego Police Officer (21 Years Vetern) Arrested for Sexual Misconduct:
http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2006/05/16/state/n131331D70.DTL
El Cajon Officer Forces Females to Masterbate With His Baton Proven by DNA:
http://www.feeds4all.com/Item.aspx?ItemID=13802946
Los Angeles Officer Arrested for Sexual Battery While on Duty:
http://www.fox6.com/news/state/story.aspx?content_id=affcf28a-9ff1-44b0-9f0a-4fcaa16e4fa2
http://www.signonsandiego.com/uniontrib/20050711/news_1m11officer.html
San Jose Officer Arrested for Molestation:
http://www.signonsandiego.com/news/2011/sep/01/sj-cop-arrested-on-suspicion-of-molesting-teens/
Los Angeles Officer Arrested for Molestation:
http://www.signonsandiego.com/uniontrib/20050711/news_1m11officer.html
Los Angeles Airport Officer Arrested for Molestation:
http://latimesblogs.latimes.com/lanow/2009/08/officer-arrested.html
Hundreds of California Judge's Are Disciplined and Removed:
http://cjp.ca.gov/pubdisc.htm
Hundreds of California Attorneys Are Disciplined and Disbarred Each Year:
http://calbar.ca.gov/calbar/pdfs/reports/2005_Annual-Discipline-Report.pdf
Databases Focusing on Documenting Police Abuse:
http://www.copwatch.org/copwatch/search.php3 (searchable police abuse database)
http://www.policeabuse.org/director.html
http://www.narpa.org/amnesty%20international.htm (Amnesty Intl. paper on police abuse)
San Diego Federal Grand Jury Indictes San Diego City Council Members for Bribery:
http://www.primenews.com/probe.html
Former San Diego Mayor Convicted of 12 Counts of Perjury, but holds top radio talk show
http://www.calbar.ca.gov/calbar/2cbj/96may/art12.htm
3 San Diego Superior Court judges indicted for taking bribes: Judges Michael Greer, James Malkus and G. Dennis Adams http://www.calbar.ca.gov/calbar/2cbj/96may/art12.htm
Orange County Sheriff Michael Corona Indicted for corruption
http://abclocal.go.com/kabc/story?section=news/local&id=5732920
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.
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