The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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?)