Free Speech

Oregon Law Punishes People for Calling the Police, If a Court Finds They Had a Bad Motive —

even if there's nothing at all false in the call.

|The Volokh Conspiracy |

Oregon Statutes § 30.845, enacted last year, creates a new "Civil action for using the police against another person with intent to harm":

(1) A person may bring a civil action for damages against any person who knowingly causes a police officer to arrive at a location to contact another person with the intent to:
(a) Infringe on the other person's rights under the Oregon or United States Constitutions;
(b) Unlawfully discriminate against the other person;
(c) Cause the other person to feel harassed, humiliated or embarrassed;
(d) Cause the other person to be expelled from a place in which the other person is lawfully located; or
(e) Damage the other person's:
(A) Reputation or standing within the community; or
(B) Financial, economic, consumer or business prospects or interests.

(2) Upon prevailing in an action under this section, the plaintiff may recover … [compensatory] damages, including damages for emotional distress … [p]unitive damages … [and] reasonable attorney fees ….

Note, though, what the statute (and similar proposals in some other states, such as my own California), omits: Any requirement that the defendant had made any false statement in the report. Yes, even calling the police about someone who you have reason to suspect is committing a crime—indeed, about someone who actually is committing a crime—can expose you to liability if the court concludes that you had a bad motive.

That's especially clear under subsections (1)(c) and (1)(e). Say, for instance, that Paul hits Donna, or vandalizes her property. Donna calls the police, precisely because she wants to get back at Paul: She wants him to feel embarrassed or humiliated by being arrested, and wants the arrest to damage Paul's standing in the community or business prospects. Under the plain text of the statute, Donna would be liable.

And of course this would apply to a wide range of other crimes. Lots of people who are genuinely upset by criminal behavior may understandably want the criminals to likewise be upset by being arrested.

The California proposal would limit this to 911 calls "motivated by [a person's] race, religion, sex, or any other protected status" (and would also authorize statutory damages of up to $10,000, even if there are no actual damages). But there too if you call 911 and perfectly accurately report a crime (or an apparent crime), you'd be opening yourself up to liability if a court finds (by a mere 51% of the evidence) that you were in part motivated by the suspected criminal's "protected status."

A bad idea, I think, and an unconstitutional one. The Petition Clause of the First Amendment protects people's right to call the police; and while "sham" complaints are constitutionally unprotected, that exception is limited to complaints that are both subjectively ill-motivated and objectively baseless. Criminalizing knowingly false reports of crime is constitutional; so is making them civilly actionable, as they already are in many states, generally as defamation. But imposing liability for accurate reports of crime, or for opinions ("there's someone out here who looks suspicious"), is unconstitutional, regardless of the speaker's motivation.

More broadly, calling 911 is often something that we often want people to do out of public-spiritedness, with little direct benefit to themselves. If you hear a neighbor shouting at his girlfriend, you might call the police just because you think the girlfriend might be in danger; you might not know for sure, but your plan is would be to give the information to the police and let them figure it out.

Say, though, that there's a news story about someone else who made that sort of call, and was then sued by the angry neighbor, who claimed that the caller was motivated by the neighbor's sex or race or ethnicity or religion or mental disability or some such. Would you be willing to risk the same consequences? Or would that be just another reason not to get involved?

(I focus on subsections (1)(c) and (e) here because subsections (1)(a), (b), and (d) at least seem to generally require deliberate attempts to bring about otherwise unlawful behavior. Subsections (1)(c) and (e), though, lack any such limitations. Note also that I assume that, in the phrase, "any person who knowingly causes a police officer to arrive at a location to contact another person with the intent to …," "with the intent to" refers to the caller's intent, not the police officer's intent; how would the caller know the intent of the police officer who will end up being dispatched?)

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  1. The law may go a little too far, but it’s quite possible to mislead without technically lying.

    1. True, but this is a criminal statute. I am wary of fuzzy lines like “misleading” in a criminal statute.

      I think Prof. Volokh’s constitutional analysis is correct here. I am probably more skeptical than he is about whether calling the police is such a good thing or always to be encouraged though.

      1. These are not criminal statutes.

  2. Note, though, what the statute (and similar proposals in some other states, such as my own California), omits: Any requirement that the defendant had made any false statement in the report. Yes, even calling the police about someone who you have reason to suspect is committing a crime—indeed, about someone who actually is committing a crime—can expose you to liability if the court concludes that you had a bad motive

    Yikes! Many in Congress head for the hills. Motive was to remove Trump for political reasons, and not facetious concerns over illegality or unconstitutional behavior.

    Nah. That never happened. Go on about your lives.

    1. As usual, a disclaimer. I do not support Trump. I support not using the Constitution to investigate your political enemies. Donald “Lock her up” Trump is guilty of this, too.

  3. I think there is a decent libertarian argument to “defund the police” but not for the reasons the BLM want to do so. I could get behind a system that makes gun ownership essential and easy. Provides for “stand your ground” laws in almost every situation. And then focuses bringing criminal charges as private parties.

    This wonky stuff the BLM extremists want like if someone breaks into your house you have to ask them nicely to leave or call a social worker who will then engage in “restorative justice mediation” with the person who is illegally in your house is just plain crazy. But maybe there is something workable there once you get the crazy out.

    1. I think the better slogan would be “Reset the police”. We still need and want police officers. What we need to do is reset their mission and get them out of being the one-stop do everything people. And that’s just for starters.

    2. They want to move the money from police to funding abortion, new armies of bureaucrats, government re-educators and other Marxist nonsense.

  4. While I agree with the analysis, I think it’d be hard to find an as-applied challenge applying it as you fear.

    1. Perhaps a facial challenge as overbroad and therefore likely to chill protected speech?

      1. I’m no litigator, but that strikes me as a hard lift, though maybe not impossible due to the chilling aspect you’re talking about.

        I’m also not too optimistic that shaming like this would work, but I suppose it’s worth a try.

      2. Nick Gillespie’s Jacket: Yes, I think you’re right — at least subsections (c) and (e) are facially overbroad. Because they’re enforceable in private-party lawsuits, I don’t think you can just file a pre-enforcement challenge, at least until a private party threatens to sue under the statute. But if you are sued under (c) or (e), then I think you can raise the facial overbreadth of the statute as a basis for invalidating it (even if your own speech could have been restricted using a narrower statute, perhaps because your report to the police was indeed knowingly false).

  5. Change the bill to include anyone who files a complaint with any government agency, not just police.

    Then wait for the first man to be accused under Title IX to sue his accuser.

  6. I can’t wait until white liberals, especially reform “Jews,” in places like Scarsdale, Upper Saddle River, Bethesda, and the other suburbs become victims of their “social justice.”

  7. This is a step in the right direction and would give people who have been victimized by manipulative citizens with unlawful motives, often supported by law enforcement who have a “first-come, first-served” approach to complaining witnesses, an opportunity to be heard. Even when a complaining witness presents documented falsehoods or omissions to law enforcement, good luck getting the officer to reverse course and charge the complaining witness. The only viable option for victims in these cases is a 1983 good luck with winning that one, too.

    1. citizens with unlawful motives

      {Insert “1984 was not a how-to manual” meme here}

      1. “Unlawful motives” is a term synonymous with the much-used statutory language, “with the intent” and “for the purpose.” A person’s motive, intent, or purpose can only be one of two things – lawful or unlawful – and is open to law enforcement interpretation every time a complaint is made.

        Orwellian talking points are convenient and easy, I suppose.

  8. Looks like a windfall for the lawyers.

  9. A citizen calls police about his next-door neighbor, says he wants an officer to be sent: ‘He has a woman on his back porch. He’s .. . I can see him, he’s holding her by the hair. Right now. By the hair.
    And she definitely looks like she is afraid to move, or something. He’s holding her with the one hand, by the hair still, and in his other hand . . . I see something sharp, I think scissors or something. but it’s definitely something sharp in his other hand. Now he’s warning her not to move. I can hear it from here. He keeps telling her not to move, to stay still. He’s had her out there like this for like 10 minutes or so. So finally I called you. I really want you to send somebody out here. Now.’

    All true. The caller is describing a quarantine haircut on the neighbor’s porch.

    1. Perhaps the idiot who called the police should be sued for defamation. Does the State of Oregon actually NEED this law?

      1. SWATing is a problem. Though those are generally false.

    2. Unless the man has a barber’s license, this scenario describes an actual emergency requiring an immediate police response.

  10. (1) A person may bring a civil action for damages against any person who knowingly causes a police officer to arrive at a location to contact another person with the intent to:

    (e) Damage the other person’s:

    (B) Financial … interests.

    If a person is stealing money from you, and you call the police to stop them, you are definitely intending to damage their financial interests right? This law makes no sense.

  11. As Professor Volokh points out, because First Amendment rights are implicated, a person sued under this law can potentially bring down the whole thing, even if they issued a false police report.

    I agree that,

    1. Police reports have to be false to be actionable.
    2. Police need to take these reports with a grain of salt. They should not be quick to confront people who merely “look suspicious” without independently confirming whether they are actually doing anything illegal. And a report that someone “looks suspicious” or similar should not be permitted as a defense for police who engage in aggressive police action.

  12. Question.

    The First Amendment does not cover what government does with a police report. Government can decide to consider it invalid and discard it without violating the First Amendment.

    Suppose someone calls the police about a robbery. The robber points out that, because the caller intended to recover stolen property, the caller had the illegal bad motive of damaging the robber’s financial interests.

    Could the robber get the arrest warrant thrown out on the grounds that, because the call was illegal under state law, it could not be used in support of an investigation, and hence there was no legally valid evidence supporting probable cause to arrest?

    This use of the law would appear bot to violate anyone’s constitutional rights. The state legislature is free to limit what matters police can and cannot inestigate. And it is free to do so in ways we might think unwise, impolitic, or even downright foolish.

    1. ReaderY: 1. I don’t think there’d be any basis for invalidating the arrest just because there was a bad intention on the part of the caller.

      2. Of course, if the legislature wants to forbid the police from responding to certain calls, it can do so. But presumably that can’t just turn on the caller’s motivation to embarrass, damage reputation, etc., since the police usually won’t know that much about the caller’s motivation.

  13. Given that police can show up to any call, kill everyone at the location (or the wrong location), and get off on “qualified immunity”, I’m not really against any law that makes people think long and hard on if they’re calling the cops for the right reasons.

    After all, the courts have made it crystal clear that holding cops accountable for their actions is something they just wont’ do. So since the courts and police unions have instructed us to treat police as a loaded-gun-with-a-hair-trigger, it’s probably not unfair to make sure that folks are pointing said loaded-gun with good intent.

  14. You’re missing the point that a motive is not inherently unlawful, and only becomes so if/when a statute makes it so in connection with a specific act. Your comment praised the OR statute as a way of dealing with “manipulative citizens with unlawful motives”, which asserts that the motives of those individuals was unlawful even before enactment of the statute.

    In this case, the statute allows for the use of a perfectly legitimate action to punish someone simply for having a particular motive, not because the action they took also illegitimately victimized one or more innocent persons, or was otherwise illegitimate in and of itself.

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