It is a crime for law enforcement officers to file reports with deliberately false information

Police Officers Filing False Reports
(California Penal Code 118.1)

We grant police officers enormous power. Obviously, we give them the power to arrest people and take them to jail.

But cops also have the power of writing police reports (or crime reports) and sending these reports to the district attorney. Prosecutors rely on these reports to decide whether to file criminal charges, and what charges to file.

Fortunately, most cops are generally honest and do their best to file accurate and truthful police reports. What happens when cops lie? What happens when they file false police reports?

The simple answer -- sadly -- is that it can cause (and does cause) innocent people to get wrongly prosecuted, convicted and jailed.

This article will examine California Penal Code 118.1, the section making it a crime for police officers to file reports with deliberately false information. Specifically, we will examine:

1. What would a prosecutor have to prove to convict a cop of filing a false police report?

2. What are the penalties if the officer is convicted?

3. What defenses does the police officer usually assert?

4. What can you do if you're a victim of a false police report?

5. Related crimes


Penal Code 118.1 states that

Every peace officer who files any report with the agency which employs him or her regarding the commission of any crime or any investigation of any crime, if he or she knowingly and intentionally makes any statement regarding any material matter in the report which the officer knows to be false, whether or not the statement is certified or otherwise expressly reported as true, is guilty of filing a false report punishable by imprisonment in the county jail for up to one year, or in the state prison for one, two, or three years. This section shall not apply to the contents of any statement which the peace officer attributes in the report to any other person.1

The key to this section is that it applies regardless of whether or not the officer signs the report under penalty of perjury.

Sometimes police do file their reports under penalty of perjury. They sign an oath directly in the report. Or they sign a separate "statement of probable cause" attesting under oath that everything they say in the attached reports is true to the best of their knowledge and belief.

In these situations, if they get caught lying in the report, they can be prosecuted directly under California perjury laws.

But many times police officers file crime reports, investigation reports, witness statement reports and detective follow-up reports without necessarily attesting to them under penalty of perjury. With Penal Code 118.1, no oath or affirmation is required. They can still be prosecuted any time they report on an alleged crime untruthfully.

Certain conditions must be met, however, before a false report becomes a crime.

Let's examine this statute part by part:

Official capacity

 

Penal Code 118.1 only applies to those reports an officer files in his official capacity with the agency that employs him. An LAPD officer who writes a report for the Sheriffs Department, the FBI or some other agency, for example, would probably not fall with in the ambit of this section.

Criminal matter

Penal Code 118.1 only applies to criminal matters. Many times police officers write reports in connection with purely civil or administrative matters, such as traffic accidents or fires or earthquakes. If they are not reporting on a crime specifically, the section does not apply.

Material matter

The false statement in the police report must be "material." This means it must relate to something of significance or importance, rather than something trivial or incidental. ³ Consider an example:

San Francisco police officer Jones is eating a meal at Chipotle when he gets a radio call of a shooting in the neighborhood. He responds immediately. When he files his police report, he states that he was driving on patrol when he got the call. This is obviously false. But everything else in the report is truthful.

Even though the statement (about his location when he got the call) is false, it would probably not be deemed material so as to trigger Penal Code 118.1. But let's change the facts:

When officer Jones arrives at the scene, he sees the suspect running away. Other officers catch and apprehend the suspect. The gun (the one used in the shooting) is found in some nearby bushes. Officer Jones, wanting to help "seal" the case for the prosecution, lies and states in his police report that "as I arrived at the scene, I observed the suspect throw the gun into the bushes."

Now this false statement in the police report definitely would be considered material. If it could be proven that officer Jones lied in this way, it would fall right within the ambit of Penal Code 118.1.

Knowingly false

It's not uncommon for police to misrepresent aspects of an event based on misperception or innocent misrecollection. Police often write their reports hours or even days after witnessing or investigating a crime. Memory does fade and falter. Honest mistakes are not criminal. 

To commit a crime under this section, the officer must knowingly and intentionally lie with an intent to be deceptive. Consider an example:

Deputy Torres files a police report in connection with a DUI arrest. In the report, he states that he initially makes the traffic stop because he sees the driver "weaving within the lane" for 4 blocks. A video of the incident later shows that Deputy Torres only follows the car for 2 blocks, and thus could only have seen the driving for 2 blocks. When Torres writes the police report, he pictures the distance in his mind as 4 blocks. He is honestly mistaken.

Here, the deputy is not liable for "filing a false police report" under Penal Code 118.1. Granted, he may have been negligent for not being more certain and precise in his reporting. But his statement about the distance was mistaken rather than knowingly false. Let's change the facts with the next example:

Deputy Torres knows for a fact that he only saw the driver weaving for 2 blocks. But he worries that this may not be enough "observed bad driving" to give him probable cause for the DUI traffic stop (especially of the defense lawyer runs a motion to suppress
evidence in court). So in order to justify his traffic stop, and to help bolster the case in court, he lies and states in his police report that he observed the driver weave for 4 blocks.

Here, Deputy Torres clearly is liable for issuing a false police report. The misstatement about the distance is knowingly false and deceptive. It is material in that it purports to give him the probable cause needed for his DUI traffic stop. And it relates to the criminal matter of driving under the influence.