This Changes Everything – You Can Now Be Sued for Calling the Police

California recently turned defamation law on its ear, as regards calling the police. Let me set the scene with a hypothetical that will demonstrate the terrible consequences of California’s new take on what speech is privileged.

The criminal across the street.

You and your neighbor Bob have an ongoing dispute about whether your visitors can park on the street in front of his house. (This is a real phenomenon, with some people believing they own the street in front of their home.) During a small gathering at your home, you happen to look out the window and see Bob spray painting “no parking!” on one of your guests’ cars. You report the incident to the police, and after seeing paint on Bob’s fingers matching the paint on the car, they take him away for booking.

Bob is quite a jerk, and is already on probation for a prior criminal offense. If he can’t figure out a way to beat this rap, he is going to spend some time in jail. So he comes up with a brilliant strategy.

He decides he will sue you in civil court for defamation, claiming you lied when you told the police that you saw him vandalizing the car. Whether or not he will win is of no importance. Rather, his plan is to make you spend tens of thousands of dollars fighting his defamation claim. You will soon realize that you really gain nothing by having Bob prosecuted, beyond seeing justice done. You will at some point ask yourself, “is that justice worth the $50,000 or more I am going to spend on attorneys, fighting against this defamation claim?”

Far beyond the cost, Bob’s lawsuit against you will give him all kinds of opportunities to harass you. His attorneys can make you spend most of your free time responding to discovery, and he can even make you show up at the time and place he chooses, and sit across a table from him while his attorney asks you personal questions at a deposition. Heck, he might even decide to take the deposition himself just so he can have the personal satisfaction of making you answer whatever questions he decides to ask you over the course of seven hours. But he’s not done. He can bring in every person who was at your house and put them through the same experience.

The standard for what is relevant is very broad in litigation. Since his claim is that you made up the entire story about him vandalizing the car, he is permitted to try and determine what motivated you to do such a horrible thing. Do you have a thing for his wife, and were trying to get him out of the way? Or maybe you have a thing for him, and are mad that it is unrequited. He can take a deep dive into any of his crazy claims.

Since he will be seeking punitive damages, and such damages are based on your income and net worth, he can ask you to turn over all your financial information. There are protections against this, but you will spend thousands to have your attorney fight the discover demand in court, and in the end the court could order you to turn over the information.

Ultimately, you may decide that the cost of justice is just too high. You will go to Bob and offer to drop your criminal charges if he will dismiss his defamation action. Bob gets away with vandalizing your friend’s car, and you are out however much money you spent before you decide to cave.

Relax, it was just a nightmare.

Until this year, this scenario was entirely fictional. You see, for a statement to be defamatory, it must be UNPRIVILEGED. There are types of speech that are deemed to be privileged. One example is statements that are made in court. Imagine a scenario where a witness could be sued for defamation for what they say in court. They are compelled by subpoena to appear and testify, only to then be sued for defamation for what they said. This would be completely untenable, so California law prohibits legal action based on testimony in court.

The same was true of reports to the police. Specifically to avoid the sort of scenario discussed above, California Civil Code section 47, which establishes a number of privileges, prohibited actions based on reports to the police.

That did not mean that one could lie to the police with impunity. First of all, making a false police report is a criminal act, and could land the liar in jail. Further, if someone lied to the police about you, and you were charged and put on trial, but proved you were innocent, you could then sue the person for malicious prosecution.

But you could not sue that person for defamation, or infliction of emotional distress, or negligence, or any other claim. As confirmed by the California Supreme Court in Hagberg v. California Federal Bank, reports to the police are absolutely privileged, and cannot be the basis for any legal action. No one ever needed to worry about being sued because they called the police.

Now you need to worry.

But, insanely in my opinion, the California Legislature just decided to change all that with an amendment to Civil Code section 47.

The protective language is still there:

“A privileged publication or broadcast is one made: . . . (b) In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law . . .” Case law has determined that part (3) covers reports to the police.

But the Legislature giveth and taketh away. Effective this year, it added subpart (b)(5):

“(5) This subdivision does not make privileged any communication between a person and a law enforcement agency in which the person makes a false report that another person has committed, or is in the act of committing, a criminal act or is engaged in an activity requiring law enforcement intervention, knowing that the report is false, or with reckless disregard for the truth or falsity of the report.”

To this some will respond (and the Legislature probably so reasoned) that there is nothing to worry about, so long as you don’t make a false report to the police. If that was your reaction, then you did not fully comprehend my long-winded hypothetical.

Even if your report to the police was as pure as the new-driven snow, that will not protect you from all the described harassment. Every criminal can now claim that the report against them was knowingly false, or was made with reckless disregard for the truth. Once the claim is made, it must be litigated.

And lest you think there will be some quick way to extricate yourself from this nightmare, there is not. For example, the motion that can sometimes get rid of a case before trial will be of no use. A motion for summary judgment cannot be granted if there is a material factual dispute. In our hypothetical, you could bring a motion for summary judgment on the grounds that your statement to the police was absolutely true, and therefore not defamatory, because you saw Bob vandalizing the car. But Bob will simply file a declaration saying he did not vandalize the car, and throw in a couple more declarations from friends, claiming they saw him lounging in his pool the entire time. Triable issue; motion denied.

What about an anti-SLAPP motion?

The anti-SLAPP statute, Code of Civil Procedure section 425.16, contains that same protective language as section 47:

“(e) As used in this section, “act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue” includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law . . .”

I find it strange that the Legislature elected to create the right to sue for reports to the police by taking away the privilege in section 47, but left the protection unchanged in section 425.16. It would appear that the new found freedom to sue remains thwarted by the anti-SLAPP statute.

Or perhaps not.

Even though the wording is the same, case law holds that the protection (previously) afforded by section 47 does not serve the same purpose as that of section 425.16. Pointing to the latter section will determine whether the speech falls under the anti-SLAPP statute, but then that leads to the second prong, to determine if the plaintiff is likely to prevail. That will now be decided under the new section 47.

Plus, we again run smack into the evidentiary standards. For purposes of an anti-SLAPP motion, the evidence of the plaintiff is taken as true. The defendant’s evidence is reviewed only to determine whether it supports a defense that negates the claim. Going back to our hypothetical once again, the result will be the same. The plaintiff will provide a declaration stating that he never vandalized the car, and that must be taken as true. You are going to be in this action until the bitter end.

What was California thinking?

According to the notes of the legislation, the Legislators apparently thought this was a brilliant way to fight discrimination. You may recall the incident in Central Park, caught on video that went viral, where a white woman called 911 to report a black man who was complaining about her dog. I don’t know if the Legislators had that specific incident in mind, but it sure sounds like it, based on the comments:

“(a) It is the intent of the Legislature to end instances of 911 emergency system calls that are aimed at violating the rights of individuals based upon race, religion, sex, gender expression, or any other protected class. Existing law on false police reporting does not address the growing number of cases in which peace officers are summoned to violate the rights of individuals for engaging in everyday activities, such as those individuals essentially living their lives.

“(b) All Californians, including people of color, should have the liberty to live their lives, and to go about their business, without living under the threat or fear of being confronted by police. These prejudicial 911 emergency system calls cause mistrust between communities of color and institutions, and those calls further deteriorate community-police relations. This is especially true when the police are summoned as forces of exclusion. Thus, it is incumbent upon the Legislature to end the use of law enforcement as a personal force by people who harbor discriminatory animus.

“(c) This act is not intended to discourage individuals who are facing real danger, who want to report a crime, or who are experiencing a medical or psychiatric emergency from making a 911 emergency system call for assistance. However, this act will allow those who have been subject to unfair and prejudicial 911 emergency system calls to regain their agency by seeking justice and restitution through the criminal and civil court system.”

This sounds like a laudable goal, but the amendment could have been tailored to better achieve that goal, without opening the floodgates to every criminal who wants to use civil actions as a means to harass genuine victims. How will they “regain their agency?”

[UPDATE] OK, so maybe it wasn’t as disastrous as I thought it would be.

In the four years since the amendment, I have continued to bring anti-SLAPP motions on the basis that reports to the police are privileged, despite the amendment to Section 47, and so far that argument has always prevailed. To understand why, let’s look at how the two statutes interact.

The anti-SLAPP statute has two prongs. Under the first prong, the defendant must show that the speech in question falls under the protections of the anti-SLAPP statute. The burden then shifts to the plaintiff to show that even though the speech falls under the anti-SLAPP statue, they are more likely than not to prevail.

Case law is very clear that a report to the police satisfies the first prong of the anti-SLAPP analysis, under section 425.16(e)(1) and (2). But plaintiff is claiming that the report was a lie, so the burden shifts to plaintiff to show that he is more likely than not to be able to prove that the report was a lie. In fact, the anti-SLAPP analysis requires that plaintiff’s evidence be taken as true in making that determination. If Civil Code section 47 did not exist, plaintiff’s odds in defeating the anti-SLAPP motion would be very high.

But section 47 does exist, and until 2021, plaintiff’s odds of prevailing were zero percent because the privilege was absolute. A little confusing because of the interplay between the two statutes, but here is how it worked.

Code of Civil Procedure section 425.16 makes the report to the police protected speech, satisfying the first prong. Plaintiff then wants to move onto the second prong to put on all his evidence to show that the report was false and thereby satisfy the second prong, but any such evidence was irrelevant, because the privilege afforded by Civil Code section 47 is absolute. No matter how false or vile, a report to the police could not be the basis for a civil action.

But what about the amendment to section 47? Well, let’s look at that again:

“(5) This subdivision does not make privileged any communication between a person and a law enforcement agency in which the person makes a false report that another person has committed, or is in the act of committing, a criminal act or is engaged in an activity requiring law enforcement intervention, knowing that the report is false, or with reckless disregard for the truth or falsity of the report.”

Synthesizing the rule down to the highlighted parts, it can be summarized as:

A report to the police is not absolutely privileged if the person knows the report is false, or acts with reckless disregard for the truth or falsity of the report.

Thus far, when fighting one of my anti-SLAPP motions, no plaintiff has been able to show (1) that the report was false; let alone (2) that the defendant knew it was false. A report to the police is not “false” if it is just wrong.

In one case, my client was sued for nuisance because she had called the police ten times to report illegal parking by the plaintiffs. In response to my anti-SLAPP motion, plaintiffs argued that some of the calls were false reports, because at least half of the time they were not issued parking tickets. They further argued that since they were not cited, defendant should have known that they were not parking illegally, or acted with reckless disregard by not better investigating whether the parking was illegal.

The court rejected these arguments. First, parking violation are “civil infractions,” not crimes, so subpart (5) does not apply. Further, stating that the cars were not illegally parked because they were not cited is a conclusion, not evidence. Perhaps the cars were moved before parking enforcement arrived, or parking enforcement never responded. And the law only requires that the reporting party believed what they were reporting was a violation. The report is not false if that belief turns out to be wrong.

And as to whether the defendant had acted with reckless disregard for the truth, there is no duty that one undertake some independent investigation before calling the police. If someone sees what they believe to be a crime and reports it, the natural and reasonable assumption is that the police will investigate the matter to determine whether a crime occurred. The defendant, seeing double-parked cars and having the understanding such is a parking violation is not required to do online research first before contacting the police.

A common refrain I hear from callers wanting to sue for false reports to the police is that some information was available to the reporting party that they “should have” reviewed before calling the police. For example, a store owner reports that he saw the caller shoplifting, and the caller argues that before contacting the police the owner should have reviewed any available surveillance video to determine whether the owner really saw what he thinks he saw. I am unaware of any case holding that failing to do so amounts to reckless disregard for the truth.

Bottom line: There is an exception to the absolute privilege for reports to the police, but at least from my experience thus far, it has proven to be elusive. The facts will need to be of the nature seen in the the Central Park case, where the real time video showed the reporting party’s state of mind. Even though the plaintiff’s evidence is taken as true in the context of an anti-SLAPP motion, arguments and conclusions are not evidence.