State Supreme Court Allows Fake Police Reports

By PAUL GLUSMAN Special to the Planet
Friday January 16, 2004

Let’s say you are a Hispanic female. You have an account at a local bank. You walk into the bank to deposit a check made out to you by your stockbroker. The bank teller suspects that the check is phony. It is a large check and the fact that you are Hispanic makes the teller suspicious. Also there is a smudge on the check. The teller calls the broker and is told that the check is phony. The manager then calls the broker back and is told the check is valid. Still, nobody calls the police and tells them not to come. The police come and detain you. 

In front of other customers, the police spreadeagle you, pat you down, handcuff you and ask questions such as, “Did you come here in a stolen car?” and, “Are you carrying weapons?” This is all after the broker has told the bank that it has made a mistake and that the check is good. After an investigation of about 20 minutes the police release you. 

You are deeply humiliated by the experience, you feel that you have been slandered, arrested on a false report and treated like a criminal in front of bank employees, other customers, and the public. You believe that this treatment was engendered, in part at least, by your Hispanic background, that the bank would not have done this to an Anglo customer who came in with a stockbroker’s check. You sue and are prepared to prove this in court. What can you collect from the bank for having put you through this treatment? 

Surprisingly, the answer is absolutely nothing. 

On Jan. 5, the California Supreme Court decided a case with the above facts, Hagberg v. California Federal Bank, and came to the sweeping conclusion that all reports to the police are absolutely privileged. That means that anyone reporting any criminal activity to a police department cannot be sued for it, no matter how false and defamatory that report is. Apparently, if the person is prosecuted in court, he or she can sue for malicious prosecution. But Hagberg was not prosecuted. She was arrested, handcuffed, then let go. Even the fact that she claimed that she was denied her civil rights under the California Unruh Civil Rights Act did not allow her to sue the bank. Chief Justice George was of the opinion that the absolute privilege to make a police report would foster free communication between citizens and law enforcement authorities whose responsibility it is to investigate wrongdoing, and this outweighed the aggrieved citizen’s interest in being compensated. 

Although it would not be possible for the aggrieved customer to sue, someone making a knowingly false police report can be criminally prosecuted under the Penal Code section 148.5. The fact that this is a crime should deter most such false reports, according to the California Supremes, which, in any event did not see that false reports “present a widespread problem.” However, it is up to the District Attorney to charge someone with making a false police report, and, unless it was very serious and public (such as falsely reporting a missing winning lottery ticket) the District Attorney well might let such a report ride. 

Because the court announced that the privilege and the immunity from a lawsuit was absolute, we can take the facts a little farther down the slippery slope the court built in Hagberg. Suppose an African-American entered a convenience store at Haystack Corners, California. He is driving somewhere else, and his intent is to buy a soda and a bag of potato chips and go on his way. Unknown to him, the manager of the convenience store is the leader of the local Ku Klux Klan and hates African-Americans. The manager calls the police, and knowing that the customer is simply trying to buy some soda and chips, makes a false report that the customer has tried to rob the store. The police come and, shotguns out, arrest the customer, take him to jail and hold him there over a weekend before he is arraigned to face charges in court. Just before the arraignment he is let go and no charges are brought. According to the California Supreme Court in the Hagberg case, there would be no lawsuit possible in this instance either. 

One matter the court did not consider, probably because it was not brought up by the parties, was whether such a false report, based in part on race, would violate Federal Civil Rights act of 1964 which provides equal access on the basis of race to places of public accommodation. The federal civil rights laws would trump state law immunities because of what is known as the “supremacy clause” of the United States Constitution. If the false report did violate the federal laws, the California Supreme Court could not prevent someone from suing under those laws. In Hagberg, the plaintiff did not choose to file her lawsuit under federal law. 

Surprising to some observers was the fact that the dissent in this 4-3 decision was written by Justice Janice Rogers Brown, who is viewed as a far right wing justice, who is on the short list of those who might be nominated to the United States Supreme Court by President Bush when a vacancy arises, and whose nomination to a federal court of appeal has thus far been derided and blocked by Democratic senators. She is viewed, with some justification, as a judicial extremist out to enact the conservative agenda of the current administration. Be that as it may, Brown wrote regarding this decision: “The ramifications of an intentionally false report of suspected criminal activity to police are enormous. Citizens arrested pursuant to such a report will be stigmatized, and forever thereafter have to note the arrest on job, credit, and housing applications. Assertions that the charges were dropped, and of ones actual innocence, will likely fall on deaf ears. Under the majority’s conclusion today, such falsely accused individuals will have no opportunity to clear their name, or seek compensation for economic loss in defending the charges or loss to their reputation.” 

Score one for the far right wing. 


Paul Glusman is a Berkeley lawyer practicing primarily in the areas of employment and insurance.