The ACLU is today filing suit in federal court on behalf of an African-American bicyclist who was physically assaulted by San Bernardino police officers for no good reason, and whose free speech rights were then violated when he attempted to file a citizen complaint about the incident. The ACLU is co-counseling with private attorneys Joe Freeman and Robert Seaman, of the law firm Seaman & Freeman.

The case, Hamilton v. City of San Bernardino, mounts the first known challenge to the constitutionality of a California criminal statute that chills citizen complaints against

peace officers. This statute being challenged, California Penal Code フ_148.6, is the criminal counterpart to California Civil Code フ_47.5, which the ACLU successfully challenged in Gritchen v. Collier, 73 F. Supp. 2d 1148 (C.D. Cal. 1999).

The case arises from an incident that took place March 3, 1999. The plaintiff, LaFrance Hamilton, alleges that he was stopped by San Bernardino Police Officers while riding his

bicycle. After a brief verbal exchange, the officers pulled Hamilton off his bicycle, forced him to

the ground, searched him, and handcuffed him, based on their contention that Hamilton lacked a proper bicycle license. One of the officers ordered Hamilton to sit in the dirt, and then grabbed Hamilton around the throat, kicked his legs out from under him, landed on top of him, and placed a knee on his chest while continuing to choke him.

Upon being released, the lawsuit alleges Hamilton went to the San Bernardino Police Department for the purpose of lodging a citizen complaint regarding the officers' actions. The watch commander at the department, who had already been informed by another officer of the incident, used the threat of prosecution under California Penal Code フ_148.6 to discourage Hamilton from filing a citizen complaint. To this date, Hamilton has not filed a complaint because of the threat of prosecution under フ_148.6.

The ACLU contends that Penal Code フ_148.6 is unconstitutional because it treats complaints against peace officers differently from complaints against all other public officials. They claim the warning that citizens must be given under the law can be used to intimidate citizens like Hamilton who wish to file legitimate complaints of police abuse or misconduct. A similar argument was accepted by the federal district court in Gritchen v. Collier, in striking down a comparable civil statute.

"We all know that people in this country have the right to remain silent. But they also have the right not to remain silent," said ACLU staff attorney Dan Tokaji. "Every citizen has a basic right to speak out against police misconduct. The recent events surrounding the LAPD demonstrate

what can happen when this right is violated and the 'code of silence' prevails. We have brought this lawsuit so that concerned citizens can report abusive police officers without fear of retaliation."

In addition to making a claim for violation of his First Amendment rights, Hamilton's lawsuit alleges that his constitutional rights were violated during the stop and arrest on March 3, 1999.