Gritchen v. Collier

• Decision Date: 07 May 2001
• Docket Number: No. 99-56940,PLAINTIFF-APPELLEE,DEFENDANT-APPELLANT,99-56940
• Citation: 254 F.3d 807
• Parties: (9th Cir. 2001) MYRON S. GRITCHEN,, v. GORDON W. COLLIER,
• Court: U.S. Court of Appeals — Ninth Circuit

Page 807

254 F.3d 807 (9th Cir. 2001)

MYRON S. GRITCHEN, PLAINTIFF-APPELLEE, v. GORDON W. COLLIER, DEFENDANT-APPELLANT.

No. 99-56940

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted May 7, 2001--Pasadena, California

Filed June 13, 2001

Larry J. Roberts, Law Offices of James E. Trott, Fountain Valley, California, for the defendant-appellant.

Daniel P. Tokaji, Aclu Foundation of Southern California, Los Angeles, California, and Alan L. Schlosser, Aclu Foundation of Northern California, San Francisco, California, for the plaintiff-appellee.

Anthony M. Santana, Sacramento, California, for amicus curiae California Association of Highway Patrolmen, and Enrique Hernandez, Los Angeles, California, for amicus Los Angeles Police Protective League.

Daniel S. Murphy, Principal Deputy, Long Beach, California, for amicus curiae City of Long Beach.

Stephen M. Fiegel, Sacramento, California, for amicus curiae Kenneth Stanley.

Mary Frances Prevost, San Diego, California, for amici curiae California Anti-Slapp Project, et al.

Paul L. Hoffman, Schonbrun Desimone Seplow Harris & Hoffman Llp, Venice, California, and Douglas E. Mirell and Joseph Geisman, Los Angeles, California, for amici curiae Individual Civil Rights Attorneys.

Marci Fukuroda, California Women's Law Center, Los Angeles, California, for amicus curiae California Women's Law Center.

Appeal from the United States District Court for the Central District of California Gary L. Taylor, District Judge, Presiding D.C. No. CV-98-00864-GLT

Before: Pamela Ann Rymer, Michael Daly Hawkins and Ronald M. Gould, Circuit Judges.

The opinion of the court was delivered by: Rymer, Circuit Judge

Opinion by Judge Rymer

OPINION

Myron S. Gritchen filed a complaint with the Long Beach Police Department about the conduct of Gordon W. Collier, a Long Beach police officer who stopped Gritchen for speeding. Collier took umbrage and threatened to sue Gritchen for defamation. Most complaints about public officials are privileged in California, but state law allows peace officers to bring an action for defamation against someone who has filed a complaint that is false, was made with knowledge that it was false, and was made with spite, hatred or ill will. Gritchen filed suit in federal court, seeking declaratory and injunctive relief that California Civil Code §§ 47.5, which permits such an action, is unconstitutional under the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. The district court held that it is, and restrained Collier from proceeding with any lawsuit under §§ 47.5.¹ Collier's appeal questions whether Gritchen has stated a claim for deprivation of a constitutional right and whether Collier's threatened suit for defamation, being private, is under color of law or amounts to state action for purposes of relief under 42 U.S.C.§§ 1983.² We conclude that it fails both tests, and therefore reverse.

I.

After Collier, a police officer with the City of Long Beach Police Department, stopped Gritchen and gave him a traffic ticket for speeding on April 16, 1998, Gritchen filed a citizen complaint with the Department alleging that Collier had been discourteous and argumentative, and that his breath smelled of alcohol. The police department found no misconduct, and so advised Gritchen on June 5. Collier then sent Gritchen two letters. The first, sent by his attorney July 31, 1998, indicated that Collier intended to bring suit for defamation the second, dated October 8, 1998, offered to settle for $4,500, otherwise Collier would seek damages exceeding $5,000 for slander and defamation in small claims court.

Meanwhile, on October 7 Gritchen filed a verified complaint in the United States District Court for the Central District of California invoking the Civil Rights Act of 1871, 42 U.S.C. §§ 1983. The complaint alleges that Collier threatened to sue under §§ 47.5 because of Gritchen's citizen complaint, and that §§ 47.5 creates an impermissible legislative classification which is facially unconstitutional under the First and Fourteenth Amendments. It seeks a declaration that§§ 47.5 is facially unconstitutional and that Collier's threatened lawsuit under 47.5 would violate Gritchen's First and Fourteenth Amendment rights; and it seeks an injunction restraining Collier from proceeding with his threatened lawsuit.

As required by 28 U.S.C. §§ 2403(b), the district court certified to the Attorney General of California that the constitutionality of §§ 47.5 had been called into question. The Attorney General elected to take no part in the proceedings.

Collier stipulated not to pursue his state action until this case was resolved. Gritchen then moved for summary judgment, which the district court granted. The court found no problem with standing, as Collier's threat of a defamation suit was more than imaginary or speculative. It held that Collier acted under color of law because all the relevant events arose out of the performance of his job as a police officer, and this case involves a provision of state law that was created for, and applies only to, police officers such that the events are all unavoidably tied to his position as a police officer. On the merits, the court ruled that §§ 47.5 is facially unconstitutional because it treats citizen complaints against police officers differently from complaints against all other government officials and thereby makes an impermissible content-based discrimination against a type of speech. Accordingly, it entered judgment granting the relief requested.

Collier timely appealed.

II.

California Civil Code §§ 45 proscribes libel, which is a "false and unprivileged publication by writing, .. . which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation." California is one of the few states which provides a statutory privilege for citizen complaints filed through official proceedings about the conduct of state employees.³ It does so in Civil Code §§ 47 by defining a "privileged publication or broadcast " as one made, among other circumstances,

(a) In the proper discharge of an official duty.

(b) In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to Chapter 2 . . .

However, police officers are excepted by an amendment to the Code that was adopted in 1982. It is codified as Civil Code §§ 47.5, and provides:

Notwithstanding Section 47, a peace officer may bring an action for defamation against an individual who has filed a complaint with that officer's employing agency alleging misconduct, criminal conduct, or incompetence, if that complaint is false, the complaint was made with knowledge that it was false and that it was made with spite, hatred, or ill will. Knowledge that the complaint was false may be proved by a showing that the complainant had no reasonable grounds to believe the statement was true and that the complainant exhibited a reckless disregard for ascertaining the truth.

III.

Collier focuses on the fact that Gritchen's action is premised upon the civil rights statute, 42 U.S.C. §§ 1983, yet it seeks to prevent him from filing a private lawsuit in state court. Collier recognizes that a plaintiff may challenge the constitutionality of a state statute in federal court if he can assert a genuine threat of enforcement, and if the statute will impair his constitutional rights. See, e.g., Steffel v. Thompson, 415 U.S. 452, 475 (1974). He also acknowledges that in some circumstances a plaintiff need only allege that the mere existence of a statute has a "chilling effect on free expression." Dombrowski v. Pfister, 380 U.S. 479, 487 (1965). But he contends that Gritchen can do neither in this case. In Collier's view, §§ 47.5 is not truly being enforced against Gritchen, nor does the statute in itself restrict Gritchen's expression or chill his exercise of free speech. He points out that, as we have held, the filing of a libel action does not chill First Amendment rights, Jungherr v. San Francisco U.S.D. Bd. of Educ., 923 F.2d 743, 745 (9th Cir. 1991), and that there is no constitutional right to be free from defending speech in court. Further, Collier contends that his threat to bring suit was entirely a personal pursuit, unrelated to his official position as a police officer, that is not converted into state action simply because suit is authorized by a state statute. Finally, Collier believes there is no constitutional infirmity because the state has simply found one category of defamation to be more baneful than others and has consequently afforded it differential treatment. This, he submits, fully comports with the Supreme Court's latest word on the subject in R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).

Gritchen counters that §§ 47.5 denies people who complain about police misconduct the protection afforded to those who complain about other public officials. His evidence shows that many police officers file §§ 47.5 lawsuits, and his expert opines that this will continue so long as they receive a neutral response from supervisors and others. Gritchen sees no problem with justiciability, as it is undisputed that Collier threatened to sue him under §§ 47.5 and that is sufficient. Likewise, Gritchen's position is that the "under color of law" requirement is met, because Collier threatened to enforce a specific state law that benefits a class of state officials -police officers -against him, based on his statements about Collier's performance of his duties as a police officer. Finally on the merits, Gritchen contends that there is no justification for the content distinction drawn by §§ 47.5 against a particular type of proscribed speech, a distinction which in his view is barred by the holding in...