allegations of misconduct or even allegations of misconduct against a public offi on any matter that's court within the jurisdiction unquote of the federal government but that's statute criminalizes all false statements the perjury statutes criminalize all false statements this one doesn't criminalize liable the legislature seems to have acted by income and spent the incumbents don't seem to me matters for matters in the end is what are we left with in the end if you take all of them together and adam all up for a card particularly where it can be file to do it because it's a crime to lie to a state official so the police officer can write a letter and say no it was in self defense if that's false it's not a criminal act so this is civil suit against the government yes correct i think there may be a similar federal thing in the federal tort claims act i don't recall that would be a separate and separate allegation but  is the situation in california law with respect to the filing of the sorts of claims that we're talking about today i'm sorry i'm sorry just produce them and this is the issue what are  the problem with respect to this particular statute taken in conjunction with one eighty four one forty eight point five taken in conjunction with civil code section forty seven and the other sections to which you if you are moving got birds on is that there is a particular class of complaints that go to any plain with respect to behaving improperly regarding police officers with respect to those crimes if there is an a first if we take a look at other circumstances take a look for example complain that a judge has accepted a bribe you bring that to the commission on judicial performance you complain for example to the ethics commission that a politician picking if you start looking at the whole landscape but that's not me but i know for a near honored that's not the question the only thing the only types of intimidation that were left out that the courts focused on had to deal with homosexuality political affiliation union membership those totally wasn't any claim with respect to our easy that there were large numbers of crosses being burned with respect to union membership or with respect to the other same as this particular claim that we're talking about which is the second distinction or prose reclaim is your honor is very well aware deals with a very specific set of elements that are necessary in order to prove perjury that is not in those elements are not built into one forty eight point five if if if the legislature if the legislature wanted to go back and say we will simply say then time you complain about an officer deal with now and i think i think when i think for your honour's question comes in looking at the analysis of the three exceptions that are in our easy because what the court says there is that we've put these exceptions in here because we really want to make certain that what is taking place is not content based discrimination and in some ways the third exception is the most interesting although i think it really is one exception i understand if that's true but i can  and i really agree with that and but the the underlying policy is precisely what the court says we don't we want of the certain we want to be absolutely certain if there is no reasonable possibility that what is going on here is an attempt to suppress protected speech now i want to make two points with respect to that first that's a slam dunk in this case roger because you're nothing in the record that suggests that that there's no reasonable possibility the courts whether it's the walker case or the christian chase or the hamilton case any of those cases it is common step that was taking place why why wouldn't you if you were really concerned about false claims why wouldn't you say take a moment i want to highlight them for them the first problem is this with respect to to the viewpoint under thirty seven civil code section forty seven any statement that is made with respect to a proceeding chill your point earlier judge burst on the problem here is that if the allegation is made a citizen says this officer stat called me a son of a bitch then the officer in i think there is a second viewpoint issue and i know you are took took issue with it but i want to and like to lay it out a little bit more if the concern is first statements why is the only statements that are directed against the government that can be can't use a different set of rules with his arm tied behind its back and that's right that's right it is a viewpoint discrimination on both bases and as your honour's know from rosenberger and all the viewpoint discrimination is a more every cross burning the deals with race or religion and then when it comes back from the supreme court the second time that's all that's the secondary effect we want to stop that additional that additional work that's required resources is required or they say  promise statute if it's a controversial match then well then the more officers and you have to follow report about what's going on if it involves raids you could always and that's sort of a burden to the coroner speech issue as correct but i want to this is really the tail wagging the dog here on her because i think because as mr pyle said first of all there isn't any evidence here that there were false complaints to deal with judges that there were more false complaints to deal with politicians or other individuals or that these are even felt in the context of the circumstances that's the sort of requirement that the first amendment within me and in any case but the bigger issue is that terms of the core concerns of content i think it has to include the advisory that's listed in the section which also explains to him his rights that he has the right to have the agency investigate the matter and he has a right to a written description and he and that is state of california is just as interested in finding a rotten apple in the barrel as it is you know having access to justice but you have any doubt that a certain number of people are going to say to themselves  know this is true and i know it's true but how do i know the name of the else when i think it's true and how do i know that anybody else is going to not think i listened was not true and i'm not going to subject myself to possible criminal prosecution it isn't worth it to me i'm not going to i think that the million witnesses or like in any other case you look at a person's credibility on the witness stand if they believe one and not the other they believe the officer or not that's not the kid you know then they have to believe that the six only applies to written statements it doesn't cover anything oral i think one has the softer side first of all our penal code one one eight point one makes it a crime for a police officer to file a false police report second the investigation is done and it's an oral statement not under penalty of perjury there is no criminal prosecution for the police officer but also there's no criminal penalt a criminal penalties but that's exactly the same as a situation for the complaining party because one forty eight point six doesn't apply to oral statements you think officer makes a respon it shows that there is no different treatment between the officer and the complaining party or anything the officer is treated more severely than complaining party so the arguments that the leaders favor of the officer over the  is the one that the court's questions have provided a number of times but he looked at one forty eight point six with a blank one blinders on in a vacuum is look at his opinion it doesn't cite anything other than one forty eight point six he doesn't look at the other statutes which are out there even  you know there were no prosecutions at all there at the san diego i'm not aware of anything other than this one it's a really in for staff if partly because of the very high standard of proof it's partly what they're doing is it going after this this resources we talk about oh you have to have an investigation and we you know we're in danger in law enforcement efforts in other areas well it's a tool to reduce the number of false statements just like the perjury it i would like to substitute what really is covered by the statute in that it is known lies it's just a statute which punishes known rise york times versus sullivan has equated  malice actual malice with both reckless disregard for the truth and known lies this is much more stringent than that definition set forth by new york times libel with this statute and this is not really a libel statute as such but it's a criminal penalty and unlike the civil statu well i think it does because this is not a statute which provides redress for an individual wrong as the civil statute does but it's a statute that prevent protect the public as a whole and the police officer is a member of the public and it's not unusual to protect certain segments of society we protect are rape victims we protect peace officers greater than the average individual in terms of assault on a police officer as a felony or as any simple assault by an individual or another individual if i got hit in the chops it w a misdemeanor but there are reasons for that and these complaints of police misconduct must be filed with a police agency and it must be the police agency that employees th e one forty eight point six every person files any allegation of misconduct against any peace officer knowing the allegation to be fault is guilty of a misdemeanor and then a thirty two point five the penal code requires that a police department investigate those allegation and i just i think crimes anything about farming with police departments as i'm saying  it would not it would not be filed with an agency that does not employ the officer because the los angeles police department for example is not the internal affairs investigating agency for every other it must be filed with the agency that employees the officer and it's that agency pursuant to a thirty two point five that is then required to investigate allegations of misconduct against it individual being questioned and making the complaint be placed under oath and it's filing an action because they might be subjected to sanctions if it wasn't all of the statutes that regulate wrongdoing that means they committed on another against another member of society true no matter what it's about you can't have the same problem no your honor because as was pointed out earlier when we look at the statutes that the placed requirements on police agencies to conduct an investigation there are allegations of crime and if there are faults that is covered by one forty eight point five and there are allegations of misconduct against its own officers and differences and there's the court pointed out the police departments the police departments are individuals that are charged with enforcing the law investigating violations and they're there with their there's a specific statute that provides for the complaint against a police officer and that's an adjunct of one forty eight point five and together the encompass the entire realm of instances statistics would indicate that there are very very few instances of prosecutions because of the very very difficult burden that is placed on it and there are probably many more allegations  as your other pointed out it's in some instances a one on one situation and these aren't cases they can be prosecuted by the police departments they have to present it to the district attorney or city attorney and the district attorney and city attorneys will scre and if there is any reasonable doubt most fine for the accused that's that's basic if we were to throw out a case because it's difficult to prove that the court innocent people are not convicted but if we're going to throw out one forty eight point six because there may be a one on one situation then we have to throw out all of our forensic and force with laws as well because those are in most instances one on one situations the are allegations of crime one forty eight point five and allegations of misconduct against their own police officers they are not required to think investigations allegations against any other public official unless it amounts to a crime and under those circumstances if the allegation is a known lie it's covered by one forty eight point five uphill and then suggests that because the statute in question deals only with allegations of misconduct they're not laudatory phrases it is the fact posted on the outside that it's on lawful to carry drugs or to take drugs into the in our conduct into the jail i'm going to case where a person was charged with taking three eighty that's fifty two callout for three eighty and i'll be happy to submit a letter that well everybody should know that you're not supposed to make known why he's when you're calling on a police department is no excuse and they pointed out that the legislature did not include that isn't as an element in the particular statute making a crime to bring drugs into the jail and that there were other point out in the opinion where the legislature had made notice an element of the crime indicating that the legislature knows how to do it and so i would submit it's analogous to our situation here one forty six saying one does not include statement to the f b i the difference your honor is that it's a perfect example because it doesn't matter who makes the false statement well what the subject matter is with respect to the the individual is talking about doesn't matter what the content is with respect to it can be complaining about an f b i officer can become complaining about a judge can be complaining about the war in iraq it doesn't matter what the statement is or what the subject prosecution that is what are these stands for is that even in the category of prescribable speech you cannot pick and choose faith government can't have particular bias point six says every person who files any allegation of misconduct against a peace officer and then further it's as if you are stating that the officer behaved him properly that's the subject matter that is singled out for to sign that form yes but it's anything at all provide for the conduct of any allegation of misconduct and the advantage of two is that it indicates you can run the gamut so you can run the gamut from talking about false records so the police so that is christina viewpoint discrimination you can object to what the government's doing that's that can be  category of kinds of speech with regard to this kind of an agency that seems to be universally covered is that not true i think that's right but i don't think that deals with the precise issue in this case and i think if you compare  h virginia versus black it points out the distinction and already the the cross burning statute only dealt with raised gender and religion and it was found unconstitutional and is content based even within the realm of prescribable speech and i want to say your honor if i can just divert for a moment your honor i think your honour's distinction could have been a basis for o for me to think about the next step on something when i can't understand the first one and that's the problem here but you know in respect to that what is terribly important is the other point that your honor made with respect to libel itself because the court said as your honor pointed out the government may proscribe libel i'm reading from page three eighty four thus the government may prescribe libel but it may not make the further contents discrimination or prescribing only federal statute versus black you can't burn crosses what sainz the constitutionality of both of them is they don't say in one thousand one you just can't make false statements about f b i agents you just can't make false but the reason this case to me is so terribly important is because it is speech that goes to the heart of what the person is about it is quintessential political speech it goes to your point when i was first that's the problem with the stance that is that is what's looking here and when i suppose i think it comes into the compound interest or those least restrictive alternative parks but it clearly is what is hovering over this case if you want to make a complaint about a police officer then we'd be sure that there is no content based discrimination because the policy of its content discrimination is is that we're not one of the sure we don't have to know with certain we expect police officers i mean no disrespect to them to take a certain amount of abuse in a certain amount of statements this court has said that over and over why because even if it is part of a political speech would i'm even though it's a lot broader and would chill a lot more speech i i appreciate that your honor and i would be a fan of that and i think and i think your honor that is a hypothetical that will never see because i think the concern that your honor is very hard to prove