by Darren Chaker

California Police Privacy Challenged

California Police Privacy Challenged

Oct 18, 2010

By Darren Chaker : This is a short post concerning the success found in Publius v Boyer-Vine directed at Government Code § 6254.21, a California police privacy law. The attorneys on the case are stunning and far superior in First Amendment law than those the state could find to defend the statute. Prior to the blog being removed in Publius under a statute prohibiting public official addresses from being posted, I was advised it was illegal to republish public records which currently exist in the public forum. (Letter posted below) Numerous cases cites in the Publius opinion make it explicitly clear it is not against the law to publish a home address. Just prior to my case being filed to challenge the statute, the Publius case was in the works. I certainly wanted another First Amendment win after handling Chaker v. Crogan  428 F.3d 1215 (9th Cir. 2005) for seven years in federal court, then having ACLU and Joshua Rosenkranz eviscerate the state’s efforts to defeat me before the 9th Circuit and U.S. Surpeme Court. However, the initial case to challenge the statute was in the works, and know one of the attorneys involved in Publius, Eugene Volokh who assisted in Chaker v. USA in which I prevailed again on First Amendment grounds.

My issue with the statute is simple: I may lawfully obtain a public record, but cannot disseminate it in the same medium received if posted online. This applies to county recorder records, prior traffic tickets, divorce or other court records, etc. In short, I can obtain the information from a public record, I just can’t show it in an ‘as is’ state. (?) I believe that is unconstitutional. The rationalization to deny republication of public records is that public officials are entitled to some special treatment. While I agree some public officials have a dangerous job, like police, when was the last time you heard a police officer being targeted at his home? A judge? A Mayor? Personally, I have not, but am sure there are a few. However, it simply does not entitle people in Government to additional privacy people they serve are not entitled to.

The law also did not make legal sense to me. In Ostergren v. Virginia, it was found a law restricting the dissemination of social security numbers in public records to be unconstitutional, since the records were already public. The California law does the exact same thing, restricts my speech to speak on what is already public.

Additionally, I do not believe the mere posting of personal information does not alone suffice to establish a true threat. Similar laws restricting posting police officer home addresses online have also been struck down. Cf. Brayshaw  v. City of Tallahassee, No. 4:09-cv-373/RS-WCS, 2010 WL 1740832, *3 (N.D. Fla. April 30, 2010) (“Merely publishing an officer’s address and phone number, even with intent to intimidate, is not a ‘true threat’ as defined in constitutional law jurisprudence.”). In United States v. Carmichael, 326 F. Supp. 2d 1267, 1270 (M.D. Ala. 2004), the court found that blocking a website containing publicly accessed information about government informants would violate First Amendment. Tellingly, in Sheehan v. Gregoire, 272 F. Supp. 2d 1135, 1143 (W.D. Wash. 2003) the court struck down a statute forbidding posting of personal information about police holding “that when the operator of a website critical of law enforcement challenged a statute regarding publishing personal information of officers, release of the information, without more, does not constitute a true threat.

Further, in Planned Parenthood of the Columbia/Willamette, Inc. v. Am. Coal. of Life Activists, 290 F.3d 1058, 1088 (9th Cir. 2002) the court found that portion of site listing the names and addresses of doctors who perform abortions enjoys First Amendment protection.

Forty-five years ago the U.S. Supreme Court found in Police Dep’t of Chi. v. Mosley, 408 U.S. 92, 95 (1972), “[T]he First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”. The First Amendment gives protection to those who want to speak on unpopular ideas. This protection also precludes the government from silencing the expression of unpopular ideas.

“Has no power” is key and precisely upsets those in power. The Facebook page dedicated to San Diego Superior Court judges, has now evolved into a searchable database with over 430 peace officers. Once the injunction becomes final, the law cannot be enforced, and the sites will be live. Jill Lindberg and Valerie Summers of the San Diego District Attorney’s Office sparked my interest in privacy, when its office leaked a confidential report to a family law attorney. The report included several confidential records which made me curious about obtaining records about the DA’s Office, Court, and law enforcement agencies. Additionally, the major data brokers who honored the four-year block of privacy to opt a public official will be notified the law is unenforceable and to repost the suppressed records. Sometimes life just gives us these little gifts.

Unfortunately, the Publius decision was not binding on the state, and was resolved barring enforcement only against the plaintiffs in that matter. I was told a long time ago, what is important is to have the last action – not the last word. I cannot think of a better example as having the last action than filing an action to strike this statute down.

Texas Open Records Victory by Darren Chaker

Texas Open Records Victory by Darren Chaker

Sep 15, 2010

Darren Chaker prevailed in a First Amendment challenge in Texas. Due to multiple deputies of Harris County Constable Ron Hickman being arrested, Darren Chaker, http://darrenchaker.us , made an open records request for the names of all deputies of his office. In lieu of Constable Hickman providing the information, he directed his attorney to oppose the request and ask the Texas Attorney General to issue an opinion denying the request in large part it was feared the names would lead to the home addresses. After Darren retained one of the premier First Amendment attorneys in Texas, a letter brief was filed opposing the position of the constable.  An opinion was issued denying the position of Constable Hickman, and ordering the records sought to be released by Darren Chaker.

Nonetheless, the position of Fourth Precinct Constable Hickman was meritless. The disclosure of addresses of police is constitutional since the manner of posting the home address is merely the redistribution of a public record since home address are located in the county recorder’s office or in a publicly accessible database typically used for skip tracing.

Specifically, the mere posting of personal information does not alone suffice to establish a true threat. Cf. Brayshaw v. City of Tallahassee, No. 4:09-cv-373/RS-WCS, 2010 WL 1740832, *3 (N.D. Fla. April 30, 2010) (“Merely publishing an officer’s address and phone number, even with intent to intimidate, is not a ‘true threat’ as defined in constitutional law jurisprudence.”). The Florida statute at issue in Brayshaw was proscribing the unauthorized publication of the home address or telephone number of any law enforcement officer, with malice and intent to intimidate on the part of the speaker, was not narrowly tailored to serve the state interest of protecting police officers from harm or death, and thus was facially invalid under the First Amendment; statute was overinclusive in proscribing speech that was not a true threat and underinclusive both in its failure to prohibit dissemination of the same information by other entities to third-parties who intended to harm or intimidate officers, and in its failure to punish parties who actually wished to harm or intimidate police officers and obtain the officer’s identifying information, and statute was a content-based restriction on speech.

In United States v. Carmichael, 326 F. Supp. 2d 1267, 1270 (M.D. Ala. 2004), the court found that blocking a website containing publicly accessed information about government informants would violate First Amendment. However, just because information is public does not mean that the most convenient method of access is required. See U.S. Dept. of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 779-80 (1989) , holding disclosure of an FBI rap sheet to a third party “could reasonably be expected to constitute an unwarranted invasion of personal privacy” however a rap sheet is by statute protected information and public records are not protected information, thus no expectation of privacy is warranted.

Likewise, in Planned Parenthood of the Columbia/Willamette, Inc. v. Am. Coal. of Life Activists, 290 F.3d 1058, 1088 (9th Cir. 2002) holding that portion of site listing the names and addresses of doctors who perform abortions enjoys First Amendment protection.

Similarly, in Sheehan v. Gregoire, 272 F. Supp. 2d 1135, 1143 (W.D. Wash. 2003) the court struck down a statute forbidding posting of personal information about police holding “that when the operator of a website critical of law enforcement challenged a statute regarding publishing personal information of officers, release of the information, without more, does not constitute a true threat.

The First Amendment gives protection to those who want to speak on unpopular ideas. This protection also precludes the government from silencing the expression of unpopular ideas. See Police Dep’t of Chi. v. Mosley, 408 U.S. 92, 95 (1972) (“[T]he First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”). Accordingly, laws restricting the content of expression normally are invalid under the First Amendment unless narrowly tailored to promote a compelling state interest. See United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 813 (2000) (“If a statute regulates speech based on its content, it must be narrowly tailored to promote a compelling Government interest.”); see also R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992) (“Content-based regulations are presumptively invalid.”).

Given the above, it is clear posting public information about police would be lawful since the record itself is already a public record, but posted online in a specific forum about police makes it more accessible.  It is unfortunate Constable Hickman decided to waste thousands of dollars of attorney time, and the time of the Texas Attorney General to oppose a constitutional request. As a consequence, Constable Hickman was responsible for making bad law for police since this was a case of first impression in Texas and has widely been used as authority for other people to obtain the names of all police serving in a department. This case marks the second First Amendment case Darren won and impacting an entire state. The first case was Chaker v. Crogan, 428 F.3d 1215 C.A.9 (Cal.),2005, Cert. denied, 547 U.S. 1128, 126 S.Ct. 2023, which invalidated a false complaint statute in California, and forced multiple other states to depublish or rewrite its law.

For filings in this case, see

Letter Brief filed for Darren Chaker, darren chaker letter brief

Texas Attorney General Opinion concerning Darren Chaker.

 

error: Content is protected !!