ACLU Challenges Officers’ Right to Sue

When a motorist filed a complaint against Richard Gibson 18 months ago after a routine traffic stop, the Newhall-area California Highway Patrol officer wasn’t about to let it slide.

Unknown to the driver, Gibson had recorded the entire encounter on audiotape. His adversary’s claim that he had been “rude, yelled and screamed at him and pounded on his car,� according to the officer’s attorneys, would be easy to refute. Invoking a little-known state law, Gibson took the driver to Small Claims Court, cleared his name and won $1,000. He even landed a spot on the “Judge Judy� television show.

So when another motorist, visiting from Virginia, complained last year that Gibson had treated him rudely, the 39-year-old Acton resident didn’t hesitate to fight back.

Only this time the case has drawn the attention of the American Civil Liberties Union. And the ACLU is not only representing the driver--who is deaf--but challenging the very law that Gibson and dozens of other officers have quietly used over the years to vindicate themselves.

The 15-year-old statute gives police legal ammunition enjoyed by no other public officials: the right to file a defamation suit in response to citizens’ complaints that are false or made in “spite, hatred or ill will.� Proponents say it gives officers protection against complaints that can taint their personnel record for years, affecting pay raises and promotions.

But critics say the law represents an unconstitutional assault on free speech and deters citizens from pursuing legitimate grievances.

The ACLU’s challenge, pending in U.S. District Court in Los Angeles, stems from a seemingly routine encounter a year ago.

Jason Kaldani, 26, on a holiday break from his studies at Old Dominion University in Norfolk, Va., was on his way to visit friends in Los Angeles when he was pulled over for speeding on the southbound Golden State Freeway in Castaic. It was Jan. 3, 1997, and Kaldani was driving a silver 1987 Honda CRX he had borrowed from his sister in San Jose.

In a complaint he filed with the CHP in May, Kaldani, who is unable to speak, wrote: “The officer refused to use paper and pen as communication method with deaf person. From his behavior, he viewpoints a deaf person as ‘ignorant person’ which is an insult to the deaf community.�

Kaldani also said Gibson deliberately sent the speeding ticket to his sister’s house in San Jose instead of his home in Virginia, even though he made a point of giving Gibson his address. As a result, Kaldani was forced to pay a $250 late fee for the $77 ticket.

Both sides agree that the two men had trouble communicating with each other, especially at first, although they eventually managed to converse by writing brief messages on Gibson’s note pad.

Saved by the officer, the notes show that Gibson had clocked Kaldani at 80 mph and that the student had been tailgating another car. When Gibson asked to see Kaldani’s driver’s license and insurance papers, the motorist wrote back:

“I’m borrowing my sister’s car. I’m sorry--my mind was wandering about moving to L.A. It’s hard to slow down during steep with this old car.�

Gibson’s lawyers, brothers Rex and Robert Parris of Lancaster, say it was Kaldani who was rude--that he even slapped the officer’s hand when Gibson pointed to the student’s wallet on the front seat in an effort to request his driver’s license. They contend that when Gibson, a 15-year CHP veteran, realized that Kaldani couldn’t hear, he put his flashlight under his chin to illuminate his face in case Kaldani could read lips.

After the CHP reviewed Kaldani’s complaint and cleared Gibson of any wrongdoing, the officer wrote to Kaldani telling him of his plans to sue for $5,000 and an apology.

“The next time you are contacted by a peace officer and you are treated in a professional manner,� Gibson wrote, “you might think twice about being vindictive, just because you received a traffic citation.�

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But before Gibson could take Kaldani to Small Claims Court, the student sued Gibson, alleging that even the threat of a defamation lawsuit was an attack on his right to free speech. Last month, the ACLU amended Kaldani’s federal suit to challenge not only Gibson but the law he had invoked.

The ACLU maintains that the measure is unconstitutional because it exempts police officers from an 1872 state statute that protects a citizen’s right to file complaints against the government and seek redress.

“The 1st Amendment prohibits the California Legislature from special treatment to anybody’s speech,� said ACLU attorney Daniel Tokaji. “They created a general rule that public officials can’t sue for slander or libel but created an exception to that rule for law enforcement officers.

“The government can’t play favorites when it comes to free speech.�

The exception came in 1982, when the Legislature enacted the defamation law after a surge of false complaints against peace officers, said John Dineen, general manager of the Peace Officers Research Assn. of California. The group had supported the measure, sponsored by then-state Sen. Alan Robbins, a Van Nuys Democrat.

“It’s a good law. It allows a person who tells lies to be held accountable,� said Cliff Ruff, treasurer of the Los Angeles Police Protective League--the LAPD officers union--which is monitoring the Gibson case but is not directly involved.

Because of the potential impact on members, the CHP officers union has pledged to help Gibson.

“We’re opposed to losing that law,� said John Markey, a labor representative of the California Assn. of Highway Patrolmen. “For a peace officer, it’s their occupation, it’s something they want to protect.�

Also joining Gibson’s side to level the playing field with the ACLU is the downtown Los Angeles law firm of O’Melveny & Myers.

Randy Oppenheimer, a partner in the large firm, said the issue isn’t whether Gibson has a case against Kaldani, but whether he has the right to take his case to court. (For now, the officer has decided to hold off on his small claims case until the federal one is resolved.)

“He may win, he may lose, but why can’t he even go into the courthouse?� Oppenheimer asked. “When is it appropriate to bar the courtroom from somebody?�

Although the ACLU case against the law is believed to be the first of its kind, it is not the first attempt to quash the statute.

In 1992, the State Bar of California sponsored legislation with state Sen. Bill Greene (D-Los Angeles) that would have repealed the law. But it died in the Assembly Public Safety Committee, proponents of the bill said, because of opposition from the state’s powerful police lobby.

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One ACLU official, John Crew, remembered speaking with an unnamed legislator shortly after the vote.

“He agreed with us from a public policy position that there was no reason for this law not to be repealed, because it served no legitimate purpose,� Crew said. “However, because of the strong opposition from police union special interests, the Legislature wasn’t going to repeal it.

“He said he couldn’t support a repeal, and I thanked him for his honesty.�

Crew and others worry that the law dissuades people from filing complaints because they fear exposing themselves to lawsuits.

“It is an extreme deterrent,� said Carol Watson of Police Watch, a Los Angeles group that refers police misconduct cases to attorneys. “It also deprives police supervisors of a way of monitoring conduct of their patrol officers. It is a terrible law.�