California Police Privacy Challenged

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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.

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For almost two decades Darren Chaker regularly has worked with defense attorneys and high net worth people on a variety of sensitive issues from Los Angeles to Dubai. With a gift of knowledge about the First Amendment and big firm expertise in brief research and writing, Darren Chaker puts his knowledge to use for law firms and non-profit organizations. When it comes to forensics and social media investigations Darren Chaker has advanced training to connect the dots where issues arise related to Twitter, Instagram, Snapchat, or Facebook, Instagram, and similar apps. When the dots need to be disconnected, Darren Chaker has extensive training in counter-forensic methods with an emphasis on network security, secure communications, combined with experience with implementing and deploying policy control, encryption, anonymization, data integrity, policy control features in large scale infrastructures. Additional training in malware analysis, Security Operating system security and hardening (Linux, Windows, Solaris), Firewalls, Intrusion detection systems, hacker, counter-hack methods, encryption, forensics, web application security is also employed for his client base. Since history is written by winners, here are a few wins: In 2005, Darren Chaker invalidated a California criminal statute aimed at suppressing speech. In Chaker v. Crogan, 428 F.3d 1215 C.A.9 (Cal.),2005, Cert. denied, 547 U.S. 1128, 126 S.Ct. 2023, is a case Darren Chaker personally handled and laid the ground work to allow appellate counsel to strike down a statute based on First Amendment rights. Subsequent to winning before the 9th Circuit, the State challenged the decision before the United States Supreme Court. Darren Chaker retained a former US Supreme Court Clerk and head of United States Supreme Court litigation for a major firm, Joshua Rosenkranz. The New York attorney defeated the State's petition to review the Ninth Circuit ruling causing multiple states to rewrite their own flawed statute since they were premised the California statute Darren Chaker struck down. Darren Chaker personally litigated Chaker v. Crogan for 7 of its 10-year lifespan. Darren Chaker’s victory invalidated a statute on First Amendment grounds and overruled the California Supreme Court‘s unanimous decision in People v. Stanistreet, 127 Cal.Rptr.2d 633. Soon after Chaker v. Crogan, it was also used to strike down Nevada's analogous statute forcing the legislature to rewrite the law, but also nullified a similar Washington statute as well. (De La O v. Arnold-Williams, 2006 WL 2781278) and used as the backbone authority in Gibson v. City of Kirkland, 2009 WL 564703, *2+ (W.D.Wash. Mar 03, 2009). The case has been cited hundreds of times and continues to be a leading authority on viewpoint discrimination. In 2010, Darren Chaker prevailed in Nathan Enterprises Corp. v. Chaker, 2010 Cal. App. Unpub. LEXIS 7604, through his counsel Timothy Coates who has prevailed multiple times before the United States Supreme Court. also prevailed for Darren Chaker where the Court of Appeal affirmed an anti-SLAPP ruling where the underlying conduct was found to have been within those protected by his First Amendment rights. In 2012 Darren Chaker prevailed on a First Amendment issue before the Texas Attorney where issued Opinion 2012-06088 where he established the right to obtain the names of peace officers regardless of undercover status. The Texas Attorney General opinion has been used as authority thousands of times by citizens and news agencies to learn more about Texas peace officers. In 2016, Darren Chaker was victorious in US v. Chaker (9th Cir. 2016) 654 F.App'x 891, 892. The ACLU, Electronic Frontier Foundation, First Amendment Coalition, Cato Institute, and the University of Florida reversed a conviction premised on First Amendment rights where blog postings were at issue. In 2017, Darren Chaker prevailed in a RICO lawsuit aimed at suppressing speech filed by San Diego attorney Scott McMillan. In McMillan v. Chaker (S.D.Cal. Sep. 29, 2017, No. 16cv2186-WQH-MDD) 2017 U.S.Dist.LEXIS 163990 the court found by blogging did not constitute extortion as no demand for money to cease blogging was made. The judge found the case to be meritless, stating in part, “The Court concludes that these factual allegations are insufficient to establish that Defendant Darren Chaker obtained something of value from Plaintiffs…. The motion to dismiss the cause of action under 18 U.S.C.§ 1962(c) filed by Defendant Darren Chaker is granted.” In 2020, San Diego attorney Scott McMillan lost a heavily litigated appeal believing the court erred in dismissing his lawsuit against Darren Chaker. Mr. Chaker was represented by former Los Angeles federal judge Stephen Larson. The Ninth Circuit in McMillan v. Chaker (9th Cir. 2020) 791 F.App'x 666, affirmed the dismissal of a RICO lawsuit premised on alleged defamation of Scott McMillan. The court stated in part, “Plaintiffs failed to allege extortionate conduct because there are no allegations that Mr. Chaker obtained property from Plaintiffs that he could “exercise, transfer, or sell. ”See Scheidler, 537 U.S. at 405. Plaintiffs’ claim also fails because there are no allegations to support the “with [Plaintiffs’] consent” element. United Bhd. of Carpenters & Joiners of Am., 770 F.3d at 843.” In sum, Scott McMillan filed a lawsuit in direct conflict with established United States Supreme Court precedent and lost – twice. Also, in 2020, Darren Chaker was sued for defamation by Las Vegas attorney Thomas Michaelides. When Darren Chaker became aware of the lawsuit, he retained Olson, Cannon, Gormley, Angulo & Stoberski to defend him. Darren Chaker found a court order Mr. Michaelides submitted to Google that was reported to LumensDataBase.org. Several inconsistencies were noticed on the court order submitted to Google. Most notably the court docket does not show Mr. Michaelides submitted an order to the court for the judge’s signature. The court docket does not reflect the court ever signed the order Mr. Michaelides submitted to Google. Ultimately, the Nevada court dismissed the lawsuit and sanctioned Mr. Michaelides $51,000 for suing Darren Chaker for conduct within his First Amendment rights and for filing a meritless lawsuit. See forged order and judgment against Thomas Michaelides here. Darren Chaker donates time to post-conviction relief organizations to seal arrests and convictions to increase opportunity for those who were convicted of crimes, conducts research and brief writing on First Amendment issues, and also enjoys promoting non-profit organizations such as the ACLU and various domestic violence shelters through his resources within the entertainment industry, including Jason Statham and Eric Roberts. Darren Chaker also enjoys traveling, being a phenomenal father, and forwarding his education with post graduate degree work.