Attorneys Move to Block Police Retaliation Against Citizen Complaints -- Motion Filed to Dismiss Police Defamation Suit


For Immediate Release: November 12, 1998

Seeking to stop the growing number of defamation suits filed by California law enforcement officers against citizens who file complaints against them, attorneys representing police accountability groups and free speech activists filed a motion today (November 12, 1998) in San Francisco Superior Court to dismiss SFPD Officer Joseph McCloskey's defamation suit against Betty Evans.

Evans' attorneys filed the motion under a special state law (Code of Civil Procedure, Section 425.16) enacted in 1992 to protect Californians from defamation and other Strategic Lawsuits Against Public Participation (SLAPP's) by allowing the lawsuits to be quickly dismissed if they are based on citizen's exercise of their free speech rights.

On September 8, 1997, Betty Evans heard a commotion outside her apartment door in San Francisco. Through the peephole she saw Officer McCloskey kicking a handcuffed suspect on the floor. She opened her door and yelled at the officer, "Don't kick him," and he stopped. Concerned for the suspect's safety, she immediately called 911 to report the incident.

The Office of Citizen Complaints (OCC) investigated the incident, using Betty Evans as a witness, and sustained a finding of excessive force against Officer McCloskey. Officer McCloskey then sued Evans for $25,000 damages based solely on her testimony to the OCC (McCloskey v. Evans).

"Ms. Evans' actions exemplify what is vital for our democracy to work -- that citizens participate in the process of government and speak out when they see government misconduct. To be the target of a defamation action for her conduct is not just a cruel irony, but an affront to our democratic principles of self government," stated ACLU attorney Alan Schlosser.

The growing use of such defamation suits and other SLAPP's is a cause of great concern for the attorneys representing the defendant. "Police officers are the only public employees in the state who are allowed to sue people who file official complaints against them," stated Mark Goldowitz, an attorney with the California Anti-SLAPP Project working on the case.

"The Legislature has refused to repeal this law which is being used by police officers to frighten and intimidate people from pursuing valid complaints. It is up to the courts to find it unconstitutional," stated Matthew Kumin, the private attorney who was asked by Bay Area PoliceWatch to represent Evans. "Given the unique powers delegated to police in a free society -- the power to use force, to take lives and to deprive us of our freedom-- it is particularly important that the First Amendment right to petition our government about grievances involving police officers not be abridged in any way."

Mary Dunlap, Director of the San Francisco OCC, in a declaration filed in support of Evans noted, "It has been the experience of the OCC that complainants frequently express fear of retaliation. The mere threat of being sued for defamation by an accused officer, let alone an actual lawsuit, will have the effect of chilling citizens from making legitimate complaints and will undermine the OCC's ability to investigate and help resolve potential police misconduct."

Van Jones of Bay Area PoliceWatch concurred, "Citizens such as Betty Evans, with nothing to gain personally from bringing their allegations to the attention of the appropriate officials could be scared off by the threat of a SLAPP suit and decide not to use the official process to investigate complaints."

Evans' attorneys are asking the court to declare unconstitutional the state law (Civil Code Section 47.5) which allows law enforcement officers (and only law enforcement officers among public employees) to file defamation suits against people who make citizen complaints against them. The motion argues that the filing of official complaints of police misconduct is protected by the First Amendment right to petition the government for redress of grievances. The motion also argues that the special police defamation law violates free speech by targeting only speech critical of police officers.

Finally, the attorneys argue that, especially since the OCC sustained Ms. Evans' allegations, Officer McCloskey cannot possibly prevail even under the special police defamation law that requires a citizen's complaint to be false, "filled with the knowledge it was false, and made with spite, hatred or ill will." (Evans had no prior connection to either McCloskey or the person she reported he kicked.)

If the lawsuit is found to be a SLAPP and dismissed, the plaintiff --in this case, Officer McCloskey -- is required to pay the attorneys fees and costs of the parties they sued.

ACLU-NC managing attorney Alan Schlosser added, "This case should send a message to California police officers. If you bring retaliatory lawsuits against people who file legitimate police misconduct complaints, you can be held personally responsible for their attorneys fees and costs. The ACLU will not tolerate police attempts to bully and intimidate citizens who make police misconduct complaints. The California anti-SLAPP law was designed for exactly this purpose and we intend to use it wherever necessary."

ACLU staff attorney John Crew and private attorney Randolph Daar are also representing defendant Betty Evans.