rejecting the argument that allegedly “humorous” language was protected where “the col- orful and humorous language [defendant] used [ ] did not negate the impression that [defendant] was seriously main- taining [plaintiff] committed [the act]”
How later courts described this case
- rejecting the argument that allegedly “humorous” language was protected where “the col- orful and humorous language [defendant] used [ ] did not negate the impression that [defendant] was seriously main- taining [plaintiff] committed [the act]”
- explaining that courts may grant dismissal with prejudice where plaintiffs can prove no set of facts that entitle them to relief
- “[C]lose consideration must be given to the language, tenor, and context of the statements made in the dispute .... ”
- “Absent a clear and unambiguous ruling from a court or agency of competent jurisdiction, statements by laypersons that purport to interpret the meaning of a statute . . . are opinion statements, and not statements of fact.” (quoting Coastal Abstract Serv., Inc. v. First Am. Title Ins., 173 F.3d 725, 731 (9th Cir. 1999))
Written by the judges who cited it.
The opinion
REINHARDT, Circuit Judge,
dissenting:
George Michael responded to press inquiries regarding what he thought to be unfair police practices. In the course of several colorful interviews, he described the circumstances of his arrest by a Beverly Hills Police officer, alleging that he had fallen prey to police entrapment. Michael — a successful celebrity with deep pockets — now finds himself subject to a lawsuit alleging defamation. By allowing the suit to proceed, the majority gives law enforcement officers a tool to silence speech on a topic of critical public importance — police misconduct. Under California law, Michael’s speech criticizing the manner of his arrest at the hands of the police deserves more protection. Accordingly, I respectfully dissent.
I
Police officers serve in unique positions of public trust. They are charged with protecting individual security and safeguarding individual rights, and are therefore legally authorized to use a level of coercive force not afforded to the lay population. Most officers exercise this privilege responsibly and with great care. Some, occasionally, do not. See, e.g., United States v. City of Los Angeles, 288 F.3d 391 (9th Cir.2002) (describing the Los Angeles “Rampart” scandal).
Yet even when officers exceed the permissible level of force, crossing the line from public defense to public offense, they are often exempted from liability, so as to preserve their incentive to act on behalf of the common good. As the Supreme Court has repeatedly recognized, because even *990 “the mere ‘specter of liability’ may inhibit public officials in the discharge of then-duties [if they are] forced to incur ‘the expenses of litigation’ and to endure the ‘diversion of [their] official energy from pressing public issues,’ ” Atwater v. City of Lago Vista, 532 U.S. 318 , 351 n. 22, 121 S.Ct. 1536 , 149 L.Ed.2d 549 (2001) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 814 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982)), police officers may assert qualified immunity to dismiss claims, even some with constitutional merit, as early in the course of litigation as possible. Apparently, we fear that police officers will be unduly chilled in the lawful exercise of their duties if they are legally held to account for almost anything but plain incompetence or intentional violations of law, see, e.g., Clement v. Gomez, 298 F.3d 898, 903 (9th Cir.2002). Therefore, we have erected a jurisprudential shield protecting police officers from damages for unconstitutional acts that a reasonable officer would not have known to be unconstitutional.
II
By finding Michael’s allegations to be actionable acts of slander the majority has extended the mantle of protection too far. Granting police officers immunity from actions for damages is one thing; granting them immunity from public criticism is quite another.
Preliminarily, I note that permitting suits such as Rodriguez’s to proceed is contrary to the policy underlying Harlow itself. One of the reasons that police officers receive qualified immunity is so that society may avoid “the diversion of official energy from pressing public issues.” Harlow, 457 U.S. at 814 , 102 S.Ct. 2727 . That policy is as applicable to suits in which the officers are plaintiffs as in those in which they are defendants. Thus, the Harlow rationale militates against permitting Rodriguez’s suit to proceed.
More important, the majority’s rule effectively allows officers to chill the speech of those who would expose the abuse of public authority. California law does not permit as much.
The majority appears to believe that an actionable slander claim arises from every allegation of facts for which an officer would not be absolutely “immun[e] from prosecution.” Maj. Op. at 984. This standard encompasses the vast majority of statements alleging police misconduct. See, e.g., Cal. Penal Code §§ 68-70 (bribery and graft), 134-135, 141 (evidence tampering), 146 (illegal arrest or seizure), 146d (beneficial treatment), 149 (excessive force), 153 (obstruction of justice); see also Pena v. Municipal Ct., 96 Cal.App.3d 77, 83 , 157 Cal.Rptr. 584 (1979) (“Many, if not most, allegations of police misconduct are also violations of various criminal statutes.”). Because most such allegations entail facts suggesting potentially unlawful behavior or impugning an officer’s qualifications to serve — at least to the same extent as do Michael’s protestations that he succumbed to the officer’s display of his impressive physical attributes — the majority would presumably find them actionable under California’s slander laws.
The majority’s standard would thereby convert almost every public statement regarding alleged police impropriety into a potential lawsuit by the officer accused of wrongdoing. If a citizen claimed that an officer was unnecessarily rough in effecting an arrest, or that an officer was verbally abusive without provocation, such statements would apparently subject the citizen to the threat of liability — and at the least to the expense of defending a legal action. 1 This cannot be the proper result; the chill on reports of police misconduct would sim *991 ply be too high. Rather than speak out about mistreatment at the hands of the police, and thereby risk the substantial cost of a legal defense, or, more important, an adverse verdict from citizens who have an abiding faith in the integrity and truthfulness of our law enforcement officers, many legitimately aggrieved individuals will simply remain silent.
California courts have flatly declared that this chill is unacceptable. In California, it is clear that criticism of police officer conduct on the job lies at the very heart of protected speech. Federal and state courts, construing both California and federal law, have emphasized its importance; the District Court for the Central District of California, for example, concisely summed up our repeated recognition that “[djebate on public issues and criticism of peace officers ... is speech ‘at the very center of the constitutionally protected area of free discussion.’ ” Hamilton v. City of San Bernardino, 107 F.Supp.2d 1239, 1246 (C.D.Cal.2000) (quoting Rosenblatt v. Baer, 383 U.S. 75, 85 , 86 S.Ct. 669 , 15 L.Ed.2d 597 (1966)).
More important, California courts have repeatedly declared that such criticism is not actionable, especially if the criticism comes from a citizen who has been arrested. For example, in Gomes v. Fried, 136 Cal.App.3d 924 , 186 Cal.Rptr. 605 (1982), the California Court of Appeals declared:
A difference of perspective between an arresting officer and a citizen who has been arrested is normal. Charges that an officer was abusive or used unneces-ary force or did not treat the arrested citizen with sufficient respect, or outraged or hyperbolic comments by the citizen are to be routinely expected by the arresting officer. (Cf. Moriarty v. Lippe, supra, 162 Conn. 371 , 294 A.2d 326, 333 (statement that ‘this ape almost twisted my arm off,’ held not actionable); ... Orr v. Lynch, 60 App.Div.2d 949 [ 401 N.Y.S.2d 897, 899 ](1978) (statement that officer ‘opened fire’ and ‘gunned down’ suspect, was ‘rhetorical hyperbole’ in context of broadcast and within privilege).)
Id. at 935 , 186 Cal.Rptr. 605 (emphasis added). The Gomes court then found that the statements at issue in the case — detailed factual statements by an arrested citizen alleging illegal obstruction of justice by a police officer — were, under California law, “not actionable.” Id.; see also id. at 933, 186 Cal.Rptr. 605 (“The abuse of a patrolman’s office can have great potentiality for social harm; hence, public discussion and public criticism directed towards the performance of that office cannot constitutionally be inhibited by threat of prosecution under State libel laws.”) (quoting and “finding] persuasive” Coursey v. Greater Niles Township Publ’g Corp., 40 Ill.2d 257 , 239 N.E.2d 837, 841 (1968)).
The reason for California’s limitation on its slander cause of action is eminently sensible:
*992 We agree with plaintiff that it is distressing and demoralizing for police officers to be subjected to false accusations of brutality, but that may be one of the crosses that a police officer must bear, in light of the power and deadly force the state places in his hands.
Imig v. Ferrar, 70 Cal.App.3d 48, 56 , 138 Cal.Rptr. 540 (1977). A later court emphasized that “[tjhese policy reasons are applicable even if they sometimes have the incidental effect of providing immunity to the ‘malignant slanderer.’ ” Pena v. Municipal Ct., 96 Cal.App.3d 77, 82 , 157 Cal.Rptr. 584 (1979). 2 See also Haddad v. Wall, 107 F.Supp.2d 1230, 1237 (C.D.Cal.2000) (noting the argument that a police officer’s frequent and often antagonistic contact with the public would lead to the conclusion that “peace officers would be less entitled to protection from defamatory statements” than other public officials), vacated on other grounds by 2002 WL 31320295 (9th Cir. Oct.16, 2002) (unpublished disposition).
The majority claims that the cases above — at least those decided before 1990 — have been undermined by the Supreme Court’s decision in Milkovich, which held that statements of opinion are not always constitutionally protected. However, although the decisions above certainly consider constitutional limitations, they do not rest exclusively on constitutional grounds; instead, they also expressly restrict the reach of the state slander cause of action as a matter of state policy. Even when the statements at issue involved detailed factual allegations, as in Gomes , the California courts have held that a slander action would not lie against such claims of officer misconduct. In exchange for the policeman’s legal right to deploy coercive force, California has determined that an officer must suffer the occasional public complaint arising from his exercise of authority, without the recourse of a slander claim. Even if this limitation is no longer required by the federal constitution, we may not automatically expand the application of a California slander statute as construed by the California courts. In formulating its civil cause of action for slander, California has made the choice to provide more latitude to citizen complaints about police misconduct than ' the federal constitution requires. We should respect that choice.
Ill
Even if California law, in general, permitted police officers to maintain a slander cause of action for allegations of police misconduct, Rodriguez would not be entitled to recover on the facts alleged. To be clear, after the majority correctly disposed of Michael’s statements asserting legal conclusions, see Maj. Op. at 986, only seven specific allegations remain. 3 These all in *993 volve statements that Michael made in various celebrity interviews (including the David Letterman show), a format in which it is commonly expected that both guest and host will exaggerate. See Maj. Op. at 987 (recognizing the importance of construing allegedly slanderous statements in full context).
The majority asserts that Michael’s statements support a claim under two of the California statute’s enumerated slander categories: charging Rodriguez with a crime, and “imputing to him [a] general disqualification” to serve as a police officer. I respectfully disagree on both counts.
First, my colleagues apparently believe that the listed statements allege facts potentially subjecting Rodriguez to criminal liability. However, the only potential crime that they have identified is disorderly conduct, pursuant to a statute prohibiting “lewd and dissolute” acts. 4 See Maj. Op. at 983; CAL. PENAL CODE § 647(a).' Despite the majority’s assertion to the contrary, Maj. Op. at 984, Michael’s allegations do not in fact satisfy the elements of a disorderly conduct charge. In People v. Swearington, 71 Cal.App.3d 935 , 140 Cal.Rptr. 5 (1977), the California courts recognized that:
Sexual motivation is a prime requisite for conduct to constitute lewd conduct. It is a defense to a charge of lewd conduct that a defendant’s conduct did not exhibit the requisite ‘sexual motivation’ to bring it within the ambit of lewd or dissolute conduct as proscribed by Penal Code section 647, subdivision (a).
Id. at 944 , 140 Cal.Rptr. 5 . It is not possible to say that any of Michael’s statements even hint that Rodriguez might have had a “sexual motivation” or that anyone would believe that he might have been so motivated-indeed, Michael explicit *994 ly stated that Rodriguez’s motivation was, to Michael’s chagrin, entirely focused on law enforcement. 5 Given Michael’s seven statements, no reasonable jury could find Rodriguez guilty of a crime. 6 As a matter of law, therefore, this cannot be the basis for finding actionable slander.
For the same reasons, none of Michael’s allegations “impute to [Rodriguez] a general disqualification” from service as a police officer. Rodriguez was given the responsibility to investigate complaints of lewd acts in the men’s restroom and apprehend any wrongdoers; Michael’s allegations, at most, suggest that Rodriguez did his job with a bit too much enthusiasm. Rodriguez did not injure his suspect, or frame him, or tamper with evidence. See, e.g., United States v. City of Los Angeles, 288 F.3d 391 (9th Cir.2002); Ovando v. City of Los Angeles, 92 F.Supp.2d 1011 (C.D.Cal.2000). Nothing in Michael’s statements even approaches an inference that Rodriguez is generally unfit for service, and no board of review would be likely to consider Rodriguez unqualified to serve as a police officer as a result of his alleged conduct.
More generally, these are not the types of allegations that give rise to a claim of slander per se under the California statute. Police officers have been protected from suit by a zone of qualified immunity for acts that reasonable officers would not have known to be illegal. Because “the expenses of litigation” are no less onerous for private citizens, citizen complainants exercising their First Amendment rights should be similarly free from the “specter of liability” for acts of public criticism. Michael’s statements do not charge Rodriguez with misconduct that if true would render Rodriguez a criminal or unqualified to serve as a police officer; California has declared the sort of public criticism at issue in this case too important to risk the chill of a lawsuit. Beeausé the district court properly dismissed these claims, I respectfully dissent.
. Indeed, in the usual case, these allegations would force the citizen to anticipate the costs of a jury trial. The instant matter provides an *991 example. As with many encounters between police officers and private citizens, Michael and Rodriguez are the only eyewitnesses to the alleged misconduct. Constitutionally, because the allegations involve a public official, Rodriguez must prove at least a genuine issue of material fact regarding both falsity and malice, see New York Times v. Sullivan, 376 U.S. 254, 279-80 , 84 S.Ct. 710 , 11 L.Ed.2d 686 (1964); Shoen v. Shoen, 48 F.3d 412, 417 (9th Cir.1995); however, with no other witnesses to the event, Rodriguez will have no trouble surviving summary judgment. As to falsity, the factual allegations will be subject to dueling affidavits representing conflicting and self-serving accounts of the arrest scenario. And as to malice, if the police officer can plausibly claim that Michael’s allegations are false, because Michael was present for the disputed encounter, the officer will necessarily be able to claim that Michael knew the allegations to be false. Under the majority’s standard, if the parties choose not to settle, the case will almost certainly proceed to trial.
. This policy choice, deeming citizen complaints more important than causes of action allowing police officers to chill claims of misconduct, are no less relevant or prized today. Federal and California coúrts have both recently cited these policies in striking down causes of action purporting to allow police officers to sue citizen complainants for defamation. See, e.g., Walker v. Kiousis, 93 Cal.App.4th 1432 , 114 Cal.Rptr.2d 69 (2001); Haddad v. Watt, 107 F.Supp.2d 1230 (C.D.Cal.2000), vacated on other grounds by 2002 WL 31320295 (9th Cir. Oct. 16, 2002) (unpublished disposition).
. Rodriguez alleges that Michael made the following statements:
December 1998 issue of Q:
(i) I didn't go anywhere near the guy. He started playing, I’ll show you mine, you show me yours. And when you [sic] me yours, I’ll nick (arrest) you. That's what happened. I was angry ... I responded to something that I shouldn’t have, but I don't think anyone in a thousand years looks at a man waiving [sic] his penis at them and thinks, oh, he’s got to be a cop.... If men pick each other up, they show each other their dicks! That's how it works. They *993 usually don't get nicked. Why should I think he's a cop? ... If you see a man playing with his penis in front of you, you don't think it's a cop. I don't understand why it is more legal for a cop to go into a toilet and wave his dick at people than it is for someone who wants to do it.
December 1998 issue of British GQ:
(ii) People say to me 'C’mon, you must have known it was a cop.' But, how would I know that? There's a man standing there, six feet two, great-looking, and waiving [sic] his dick about and staring at me. At a time like that, you don't think, 'There’s Karl Mal-den.’ You can't spot a copper, especially when he’s wearing a pair of shorts and coming on to you in a Beverly Hills toilet. It’s the last thing you expect. I didn't think taxpayers paid people to go around as professional wankers (masturbators). I was absolutely stunned when he turned out- to be a copper. But he is standing- there and his game is, I’ll show you mine, you show me yours, and then I'll f — king nick you.
December 4, 1998, to the BBC:
(iii) Ultimately, you don’t see it as a massive risk if there is no one else around, and if there is someone waiving[sic] his genitals around in front of you, you don’t think they’re an office [sic] of the law. I fell for the trick. It was done very well.
December 1998, to the Globe Daily:
(iv) A hunky guy walked in (the Plaintiff), started masturbating and then left.
November 1998, on a David Letterman broadcast:
(v) He played a game called you show me yours, no, I’ll show you mine; it was called I show you mine, you show me yours and I’ll take you down to the police station.
November 1998, on British television — the Parkinson Show:
(vi) I responded to a very handsome, tall, good-looking American cop, they don’t send Colombo [sic] in there to do this and so I responded to that and I can’t be ashamed of the fact that it was there in front of me and I thought, oh well.
(vii) I’ve said this before, but it’s true. If there is someone standing there waiving [sic] their genitals at you, you don’t think they’re an officer of the law.
. Michael clearly alleges that Rodriguez entrapped him, but entrapment is a defense to criminal prosecution rather than a violation of the California penal code. Rodriguez could not be prosecuted for "entrapment.”
. The majority is absolutely correct that “no blanket immunity ... covers all types of illegal activity performed by officers in the context of an investigation or an undercover ‘sting’ activity,” Maj. Op. at 984. Conduct within the scope of a vice officer’s duties, however, is recognized as protected. See Provigo Corp. v. Alcoholic Beverage Control Appeals Bd., 7 Cal.4th 561, 568-69 , 28 Cal.Rptr.2d 638 , 869 P.2d 1163 (1994). Michael has alleged nothing so far out of the scope of a reasonable vice officer’s duties in the course of an investigation into lewd behavior in men's bathrooms to suggest that Rodriguez would be subject to prosecution. In the context of a sting operation to arrest perpetrators of lewd acts, no reasonable jury could find an officer guilty of "disorderly conduct” for displaying his penis in a men’s restroom to test for an illegal response — with nobody around but the target of the sting.
. The only alleged statement that even comes close is Michael’s fourth statement: “A hunky guy walked in, ... started masturbating and then left.” I note first that although the majority repeatedly claims that Michael alleged acts of masturbation, Michael in fact claimed only that Rodriguez started masturbating but tiren left, a different matter entirely. Fortunately, we need not parse the difference more closely, as Rodriguez’s blameless motivation for any allegedly lewd act clearly precludes criminal liability.