San Diego POA v. City of San Diego (November 2, 1999)

* Court: State Appellate

* Jurisdiction: City of San Diego

* Plaintiffs' Job Class: Police Officer

* Plaintiffs' Attorney: Everett Bobbitt

* Trial Court Decision: Mostly against POA

* Appellate Court Decision: Upheld trial court

* Issues: Penal Code Section 148.6, citizen complaints, citizen complaint advisories

San Diego POA Facts

* The San Diego POA wanted the Department to require the advisory warning contained in Penal Code section 148.6 to be signed not only when a citizen filed a complaint about an officer's on-duty conduct but also when a fellow employee filed a discrimination complaint against an officer and when a complaint alleged on- or off-duty criminal conduct by an officer.

* The Department took the position that the Penal Code section 148.6 advisory need only be signed when a complaint was made against an officer's on-duty conduct.

* The POA filed a petition for writ of mandate.

* The trial court by and large sided with the Department.

* The trial court awarded only a very small amount of attorneys' fees to the POA.

* The appellate court agreed with the trial court.

San Diego POA Analysis

* Penal Code section 148.5 makes it a misdemeanor to file a false crime report.

* Courts had interpreted Penal Code section 148.5 not to apply to citizen complaints of alleged police misconduct, even where the allegations, if true, amounted to criminal violations.

* In 1985 the legislature enacted Penal Code section 148.6.

* Penal Code section 148.6(a)(1) makes filing a false citizen complaint a misdemeanor.

* Penal Code section 148.6(a)(2) requires a complainant to sign an advisory, the last paragraph of which informs the complaining party that, if the complaint is false, misdemeanor charges can be filed against the complaining party.

* The POA contended that Penal Code section 148.6(a)(2)’s advisory had to be signed each and every time that a complaint was filed against an officer. Thus, according to the POA's reading of section 148.6(a)(2), the requirement to sign the advisory applied even where a fellow employee filed a discrimination complaint against an officer or where a complaint alleged on- or off-duty criminal conduct by an officer.

* The Department contended the advisory was required only for the run-of-the-mill, garden-variety, citizen complaint alleging improper on-duty conduct.

* The trial court and the appellate court concluded that the language and legislative history of Penal Code section 148.6(a) supported the Department's position.

* To add insult to injury, the trial court awarded the POA only 20% of its attorneys' fees, since the POA had not won much on the merits. The appellate court agreed with the trial court.

Conclusion

Penal Code section 148.6(a) has been interpreted, perhaps correctly, in a narrow manner. So the advisory which puts a complainant on notice about the consequences of filing a false complaint will not be used as broadly as might be desirable. If breadth is desired, the only solution is to amend Penal Code section 148.6(a).