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The 9th Circuit on Thursday threw out a California law making it illegal to falsely impugn a cop because the law doesn’t prohibit false praise of police officers. “Because we conclude that the statute impermissibly discriminates on the basis of a speaker’s viewpoint in violation of the First Amendment,” wrote Judge Harry Pregerson for a unanimous three-judge panel, “we reverse the district court and grant the petition” for habeas corpus. While the state developed its investigation procedures to make officers more accountable to the public, the law, Pregerson wrote, “undermines that goal by holding only citizen complainants accountable for their knowing falsehoods, while leaving unregulated the knowingly false speech of a peace officer or witness.” The opinion came in the case of Darren Chaker, who in 1998 claimed that an El Cajon, Calif., police officer roughed him up during an arrest after Chaker was accused of taking his car from a mechanic without paying. The San Diego district attorney’s office then filed misdemeanor charges against Chaker for filing false misconduct charges against the officer. Chaker was eventually convicted, and while the resulting sentence was light — time served plus two days in custody and probation — he pursued several habeas petitions despite denials by state courts and the U.S. District Court for the Southern District of California. “He’s a fellow who, when he sees a wrong done, he wants to pursue it,” said one of his lawyers, Berkeley-based Walter Pyle. “And he certainly pursued it here. Most people would’ve dropped it.” Pyle, too, has been a persistent First Amendment advocate: In 2003, he lost a case for a man who said that emptying a trash can at a city council meeting was protected speech. In reversing the Southern District’s ruling against Chaker’s First Amendment claim, Pregerson — writing for a panel that included Senior Judge Procter Hug Jr. and Judge Marsha Berzon — said that while the state law has a valid purpose, it needlessly violates the Constitution by focusing on the content of speech rather than its veracity. Indeed, a person falsely testifying in praise of an officer is throwing just as big a monkey wrench into the justice system as someone lying about wrongdoing, he wrote. “A knowingly false assertion made by a peace officer or witness in support of a peace officer during the course of a misconduct investigation, like a knowingly false complaint of misconduct, is equally ‘at odds with the premises of democratic government,’” Pregerson wrote. He was quoting the 1964 Supreme Court opinion Garrison v. Louisiana, 379 U.S. 64, which said false speech about public officials is not protected by the First Amendment. Kelly Rand, the San Diego deputy district attorney who argued the case, was particularly peeved that a trio of federal judges stepped on the toes of the California Supreme Court. “This was a three-judge panel of the 9th Circuit telling a unanimous California Supreme Court it’s wrong,” she said Thursday, adding that she plans to consult with the California attorney general’s office to decide if the state will seek en banc reconsideration by the 9th Circuit. Mark Rosenbaum, a lawyer for the ACLU of Southern California who argued the case on Chaker’s behalf before the 9th Circuit, called the opinion “a get-out-of-jail-free card for the First Amendment,” and said he was doubtful the state would end up seeking reconsideration. “I hope not,” he said. “I think the police and the state can withstand public scrutiny.” And if it does get taken up en banc, he added, he doesn’t see much further debate to be had. “I don’t think this is a hard First Amendment case,” he said. “You can’t play favorites with the First Amendment.”

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