Photo by Lorenzo Rui on Unsplash
Jehanzeb Khan, Associate Member, University of Cincinnati Law Review
I. Introduction
On Wednesday, February 24, 2021, Ohio State Representatives Thomas West and Casey Weinstein announced legislation with the hopes of combating false, racially-motivated 911 calls.[1] The piece of legislation titled “Darren’s Law” is named after Darren Cooper, an Ohio resident who was the victim of a racially-motivated 911 call.[2] Mr. Cooper was sitting in a parking lot in Ravenna, Ohio talking on the phone when a woman nearby called a 911 dispatcher and stated:
There is a person sitting adjacent to me in a black mustang it looks as he has a pistol . . . He was holding it up. He is moving around in his seat erratically. He lowered the gun, but yes, I really believe he’s sitting there with a pistol.[3]
Police officers arrived to where Mr. Cooper was and surrounded his car, with an officer even drawing his weapon.[4] After being told that someone had called allegedly seeing him holding a gun, Mr. Cooper suggested that perhaps they were thinking it was his iPhone.[5] After the police searched his car and found nothing, they apologized and left.[6]
Ultimately, “Darren’s Law” would allow the victim of a false and racially-motivated 911 call to have a cause of action to sue the caller in civil court for monetary damages.[7] Representatives West and Casey also suggested that “Darren’s Law” could allow a court to make a caller undergo implicit-bias training that would have to be proven in court.[8]
This blog will discuss what “Darren’s Law” could look like in Ohio and what challenges the proposed law will face in front of the Ohio General Assembly. Part II of this blog will discuss what is known right now about the proposed bill and discuss similar pieces of legislation in other states. Furthermore, Part III will discuss possible additions to the proposed “Darren’s Law.” Finally, Part IV will conclude with how likely this bill is to pass and become law in Ohio.
II. Background
Part A of this section will discuss a relevant provision in the Ohio Revised Code concerning false alarms. Part B of this section will discuss the current stage of “Darren’s Law.” Lastly, Part C of this section will discuss what other similar pieces of legislation have looked like, most specifically in New Jersey, California, Washington and Oregon.
A. Current Provisions in the Ohio Revised Code
There is one relevant statute under the Criminal Title of the Ohio Revised Code that reads partially as follows:
(A) No person shall do any of the following:
(1) Initiate or circulate a report or warning of an alleged or impending fire, explosion, crime, or other catastrophe, knowing that the report or warning is false and likely to cause public inconvenience or alarm;
(2) Knowingly cause a false alarm of fire or other emergency to be transmitted to or within any organization, public or private, for dealing with emergencies involving a risk of physical harm to persons or property;
(3) Report to any law enforcement agency an alleged offense or other incident within its concern, knowing that such offense did not occur.[9]
O.R.C. § 2917.32 is titled “Making false alarms” under the Criminal Title in Ohio and provides a minimum sentence of a misdemeanor.[10] The statute provides for harsher sentences depending on the harm that is caused and the severity of the false threat that is reported.[11]
B. Progression of “Darren’s Law”
As it stands, “Darren’s Law” has not been introduced as a bill in front of the Ohio General Assembly.[12] However, according to Legislative Aide to Representative West, Sean McCann, Representatives West and Casey submitted a request and have now received a draft of Darren’s Law from the Ohio Legislative Service Commission (LSC) which is ready to be introduced to the Ohio House at the next session.[13] Mr. McCann noted that Representative West and Casey included the California false 911 call statute, which will be discussed below, as part of their drafting instructions.[14]
While Ohio does provide for a criminal penalty for certain alarms, as shown in O.R.C. § 2917.32, “Darren’s Law” will be designed to provide a civil cause of action only.[15] Furthermore, Representative West and Casey are hoping that “Darren’s Law” would require perpetrators to go through court mandated implicit-bias training as a penalty, beyond the damages that the victim may be entitled to.[16]
Concerning next steps, Representatives West and Casey hope to begin meeting with community members that are people of color, the Fraternal Order of Police of Ohio, and other community members to see what their opinions are and what changes can be made to “Darren’s Law” to make it successful.[17] Furthermore, they also hope to gauge interest and feedback from other Republican members in the Ohio House before the bill is officially introduced to the House floor.[18]
C. Other Legislation Across the United States
Currently, there are at least four other pieces of legislation across the United States that provide a remedy for victims of false, racially-motivated 911 calls.[19] The four being in New Jersey, California, Washington and Oregon.[20] The New Jersey provision, under the title “False Public Alarms” is as follows:
A person is guilty of a crime of the third degree if the person knowingly places a call to a 9-1-1 emergency telephone system with purpose to intimidate or harass an individual or group of individuals because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity.[21]
As demonstrated by the statute, New Jersey goes further than just penalizing false, racially-motivated 911 calls, but also penalizing calls that are made against other protected classes.[22] The aforementioned statute became law on August 31, 2020 when it was signed by New Jersey Governor Phil Murphy.[23]
Also around the end of August of 2020, lawmakers in California passed a similar bill to prevent racially-motivated 911 calls.[24] Approved by California Governor Gavin Newsom, California Assembly Bill 1775 partially states:
The bill would also provide that if a person knowingly allows the use of or uses the 911 emergency system for the purpose of harassing a person and that act is a hate crime or other, specified crime committed against another person on the basis of the other person’s actual or perceived characteristics, including race, religion, gender, or sexual orientation, the crime would be a misdemeanor punishable by up to one year in a county jail, a fine of not less than $500 nor more than $2,000, or both that imprisonment and fine.[25]
The aforementioned penalty is included in § 653y of the California Penal Code.[26] Similar to the New Jersey Statute, California A.B. 1775 will provide a cause of action for a false 911 calls on the basis of multiple protected statuses, and not just race.[27]
In March of 2020, the state of Washington made it a crime for a person to make a false report:
with knowledge that the information reported, conveyed, or circulated is false, he or she initiates or circulates a false report or warning of an alleged occurrence or impeding occurrence knowing that such false reporting is likely to cause . . . an emergency response.[28]
Unlike the New Jersey and California statutes, the Washington statute does not discuss race or discrimination at all.[29] Furthermore, the Washington provision provides tiers of punishment depending on the outcome from the false 911 call.[30] For example, if death is the “proximate result” of the false 911 call, the outcome is a class B felony.[31] If substantial bodily harm is the “proximate result,” the outcome is a class C felony.[32] Finally, all other instances of false reporting result in a gross misdemeanor.[33]
In contrast to the criminal provisions in New Jersey, California, and Washington, Oregon instead provides a civil cause of action for victims of false 911 calls.[34] The Oregon bill, that was passed in 2019, enacted the following provision-in-part:
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 . . . [u]nlawfully discriminate against the other person[.][35]
The Oregon statute allows a plaintiff to recover special and general damages, including for emotional distress, statutory damages of $250 for each defendant, and punitive damages.[36] The statute also allows a plaintiff to file in Oregon small claims court for a claim up to $10,000 if they so choose.[37]
III. Analysis
Part A of this discussion will begin with the political underpinnings of “Darren’s Law” in Ohio compared to California, New Jersey, Washington, and Oregon. Part B will then outline what “Darren’s Law” could include from the statutes from the aforementioned states.
A. The Politics of “Darren’s Law”
It is not a coincidence that the California and New Jersey Legislatures passed similar bills during the summer of 2020. False 911 calls continue to be made against people of color nationwide.[38] However, perhaps the most notable and recent example occurred in May of 2020 when a white woman called the New York Police Department accusing a Black man of threatening her after the man asked the woman to leash her dog in New York’s Central Park.[39]
Beyond that, 2020 brought a series of high-profile deaths of Black people, including Ahmaud Arbery, Breonna Taylor, and George Floyd, to only name a few, that led to nationwide protests and some urgency to enact laws that would better protect against police brutality and racial discrimination.[40] However, research has shown that Americans are sharply divided along racial and political lines when it comes to systematic racism and if laws need to be implemented to combat it.[41]
As such, it is perhaps unsurprising that Democrats are in the majority in both houses of the New Jersey, California, Washington, and Oregon Legislatures that all passed the aforementioned statutes concerning false 911 calls.[42] Furthermore, all four of those states have Democratic Governors too.[43] Unfortunately for Representatives West and Casey and other proponents of “Darren’s Law,” both houses of the Ohio General Assembly have Republican majorities, and the current Governor of Ohio is a Republican too.[44] Thus, any sort of legislation, in the name of combatting racism is going to be difficult.
In recent years, pieces of legislation that address race in the Ohio General Assembly have not fared well. For example, Ohio House Concurrent Resolution 19, a resolution to deter White Nationalism and Neo-Nazism, was introduced and referred to committee in the Ohio House of Representatives with no further action.[45] Ohio Senate Bill 12, a bill to preclude the death penalty if based on race, was introduced in front of the Ohio Senate in January of 2017 with no further action.[46] Ohio Senate Concurrent Resolution 14, a resolution to declare racism a public health crisis, was offered in front of the Ohio Senate in June of 2020 with no further action.[47] Thus, it may be difficult for a bill like “Darren’s Law” to pass in Ohio, given how much emphasis Representative West and Casey want to put on racism and implicit-bias in the legislation. Although it is helpful the two are meeting with Republican Representatives to gain feedback and insight, Representatives West and Casey may have to get creative if they want “Darren’s Law” to become Ohio Law.
B. Possible Structures for “Darren’s Law”
Given an understanding of the Ohio Legislature, Representatives West and Casey may want to go in a direction opposite of New Jersey and California. The aforementioned New Jersey and California pieces of legislation not only provide a criminal penalty for false 911 calls that are made on the basis of race, but also on the basis of other protected statuses (including national origin, gender, sexual orientation and ethnicity to name a few). While the Democratic-majority New Jersey and California Legislatures were able to pass statutes that protect victims of 911 calls on the basis of race, Representatives West and Casey will have difficulty passing a similar statute that protect victims of 911 calls on the basis of race through the Republican-majority Ohio General Assembly. Recent Ohio legislative history suggests that bills that aim to tackle racism directly do not tend to succeed.
However, the Washington Legislature enacted a statute that penalizes false 911 calls without discussing race or discrimination at all.[48] While this could in theory be a statute that provides guidance to “Darren’s Law,” unfortunately, the Washington statute is quite similar to that of O.R.C. § 2917.32. Furthermore, the Washington statute and O.R.C. § 2917.32 require the victim to demonstrate that the perpetrator knew that they were initiating a false report. Thus, a man like Darren Cooper probably does not have a legal remedy under either statute. Based on what is known from the 911 call on that day, Mr. Cooper would have difficulty in proving that the woman who called on him knew that she was initiating false report. More specifically, Mr. Cooper would have difficulty in proving that the woman actually knew that he was not in fact holding a gun. Notwithstanding any prejudices or biases the woman held against Mr. Cooper, she may legitimately have thought Mr. Cooper was holding a gun.
Ultimately, “Darren’s Law” could have the most success in the Ohio General Assembly by replicating part of the Oregon statute. To reiterate, the Oregon Legislature provides a cause of action for a victim of a false 911 call against someone who calls with the intent to “unlawfully discriminate against” the victim.[49] Perhaps most importantly, the Oregon legislation does not specify that one must discriminate on the basis of race or any other protected status at all. As such, “Darren’s Law” could equally provide some intentional vagueness and avoid using race or any other protected status in the language of the bill, which could help gain some Republican support.
However, it is unclear whether other Ohio Legislative members may find “unlawfully discriminate against” the victim to be too broad and too all encompassing, or perhaps for Representatives West and Casey, not specific enough. Especially considering the pair’s desire to include implicit-bias training as a penalty for perpetrators of “Darren’s Law,” having the law written without specifying the basis upon the discrimination may frustrate their ultimate purpose with the law. Ultimately, if passing “Darren’s Law” is a paramount objective for Representatives West and Casey to tackle one aspect of racism in Ohio, writing the law intentionally vague could prove to be fruitful, permitting other members of the Ohio legislature do not find the language “unlawfully discriminate against” to be overbroad.
IV. Conclusion
“Darren’s Law” faces a steep climb in front of the Ohio General Assembly. While Representatives West and Casey are desiring to protect people like Darren Cooper, the Ohio Legislature may not provide them with much leeway. On one hand, any sort of legislation that might try to address false 911 calls on the basis of racial-motivation or any type of discrimination at all could very well be shot down by the Republican-dominated General Assembly. Although other statutes in other States do and can provide some guidance to Representatives West and Casey, truthfully, “Darren’s Law” is posed to be quite unique. Imposing a civil penalty of implicit-bias training does not appear at all in other statutes or in similar laws in California, New Jersey, Washington and Oregon. Furthermore, Representatives West and Casey face Republican opposition, both in the Ohio Legislature and the Ohio Governor’s Office which were not issues in the four aforementioned states. Ultimately, Representatives West and Casey will have to be creative in order to ensure that “Darren’s Law” becomes Ohio law.
[1] ICYMI: Reps. West, Weinstein announce “Darren’s Law” to stop racially motivated 911 calls, Ohiohouse.gov (Feb. 26, 2021), https://ohiohouse.gov/members/thomas-west/news/icymi-reps-west-weinstein-announce-darrens-law-to-stop-racially-motivated-911-calls-105446.
[2] Kelly Kennedy, Woman calls Ravenna police on Black man sitting on his car on the phone, falsely claims he has a gun, Cleveland 19 News (Sept. 10, 2020, 2:59 PM), https://www.cleveland19.com/2020/09/09/woman-calls-ravenna-police-black-man-sitting-his-car-phone-falsely-claims-he-has-gun/.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Meg Shaw, Darren’s Law, named after Hudson resident, would allow Ohio 911 call victims to sue caller for false 911 calls, News 5 Cleveland (Feb. 25, 2021, 10:54 AM), https://www.news5cleveland.com/news/democracy-2020/ohio-politics/darrens-law-named-after-hudson-resident-would-allow-ohio-911-call-victims-to-sue-caller-for-false-911-calls.
[8] Id.
[9] Ohio Rev. Code Ann. § 2917.32 (LexisNexis 2021).
[10] Id.
[11] Id.
[12] Telephone Interview with Sean McCann, Legislative Aid to Representative West, Ohio House of Representatives (Mar. 12, 2021).
[13] Id. The Ohio LSC drafts bills and provides research to members of the Ohio General Assembly. Id.
[14] According to Mr. McCann, typically members who submit a request to the LSC will include drafting instructions to provide guidance for how the bill should be drafted, including other statutes as examples. Id.
[15] Id.
[16] Id.
[17] Id.
[18] Id.
[19] As will be demonstrated below, not all of the laws mentioned explicitly provide for a cause of action on the basis of racial or protected class motivation, but are broad enough to provide someone who is the victim of a racially-motivated 911 call a cause of action regardless.
[20] Evan Simko-Bednarski, A false 911 call in New Jersey could lead to more jail time if there’s bias, CNN (Sept. 2, 2020 4:29 PM), https://www.cnn.com/2020/09/02/us/new-jersey-racial-bias-911-trnd/index.html.
[21] N.J. Stat. Ann. § 2C:33-3(f).
[22] Id.
[23] Anthony Zurita, ‘Race-Based’ 911 calls now can be charged as bias crime in NJ, Murphy says, NorthJersey.com (Sept. 1, 2020, 8:50 AM), https://www.northjersey.com/story/news/new-jersey/2020/09/01/race-based-9-1-1-calls-now-can-charged-bias-crime-permit-karen-amy-cooper/3454037001/.
[24] California lawmakers pass bill to stop racist 911 calls, ABC30 (Sept. 1, 2020), https://abc30.com/911-hate-crime-bill-california-racist-karen-black-lives-matter/6398575/.
[25] A.B. 1775, 2019-20 Gen. Assemb., Reg. Sess. (CA. 2020).
[26] Id.
[27] Id.
[28] H.B. 2632, 66th Leg., Reg. Sess. (Wa. 2020).
[29] Id.
[30] Id.
[31] Id.
[32] Id.
[33] Id. In Washington, a misdemeanor imposes up to a 90-day jail sentence and a $1,000 fine, while a gross misdemeanor can impose a 364-day jail sentence and a $5,000 fine. Criminal Penalties with Conviction in Washington State, Burg Criminal Defense https://www.glblaw.com/criminal-penalties-with-conviction-in-washington-state#:~:text=The%20only%20significant%20difference%20between,up%20to%20a%20%245%2C000%20fine. (last visited Mar. 15, 2021).
[34] H.B. 3216, 80th Leg., Reg. Sess. (Or. 2019). The proposed Darren’s Law in Ohio is also being written as a civil cause of action as opposed to a criminal penalty. Ohiohouse.gov, supra note 1.
[35] H.B. 3216, 80th Leg., Reg. Sess. (Or. 2019).
[36] Or. Rev. Stat. § 30.845 (2020).
[37] Information about going to court in Multnomah County Circuit Court, Oregon Judicial Branch https://www.courts.oregon.gov/courts/multnomah/go/Pages/smallclaims.aspx. (last visited Mar. 15, 2021). The statute does allow a plaintiff to file outside of small claims if the total damages of the claim exceed the small claims limit. Or. Rev. Stat. § 30.845 (2020).
[38] Simko-Bednarski, supra note 20; Brandon Griggs, Living while black: Here are all the routine activities for which police were called on African-Americans this year, CNN (Dec. 28, 2018 8:37 AM), https://www.cnn.com/2018/12/20/us/living-while-black-police-calls-trnd/index.html.
[39] White Woman in Central Park Confrontation With Black Birdwatcher Charged by Manhattan DA, NBC New York (July 6, 2020 10:55 PM), https://www.nbcnewyork.com/news/local/white-woman-in-viral-central-park-confrontation-with-black-birdwatcher-charged-by-manhattan-da/2501860/.
[40] Curtis Bunn, Lawyers struggle to keep up with civil rights cases amid America’s racial reckoning, NBC News (July 23, 2020 1:52 PM), https://www.nbcnews.com/news/nbcblk/lawyers-struggle-keep-civil-rights-cases-amid-america-s-racial-n1234714.
[41] Juliana M. Horowitz et al., Amid National Reckoning, Americans Divided on Whether Increased Focus on Race Will Lead to Major Policy Change, Pew Research Center (Oct. 6, 2020), https://www.pewresearch.org/social-trends/2020/10/06/amid-national-reckoning-americans-divided-on-whether-increased-focus-on-race-will-lead-to-major-policy-change/.
[42] Legislative Roster, New Jersey State Legislature, https://www.njleg.state.nj.us/members/roster.asp (last visited Mar. 9, 2021); Senators, California State Senate, https://www.senate.ca.gov/senators (last visited Mar. 9, 2021); Members, California State Assembly, https://www.assembly.ca.gov/assemblymembers (last visited Mar. 9, 2021); Roster of All Members, Washington State Legislature, https://www.assembly.ca.gov/assemblymembers (last visited Mar. 9, 2021); Oregon State Senators, Oregon State Legislature, https://www.oregonlegislature.gov/senate/Pages/SenatorsAll.aspx (last visited Mar. 9, 2021); Oregon House of Representatives, Oregon State Legislature, https://www.oregonlegislature.gov/house/Pages/RepresentativesAll.aspx (last visited Mar. 9, 2021).
[43] Fast Facts About America’s Governors, Eagleton Institute of Politics, https://governors.rutgers.edu/fast-facts-about-americas-governors/ (last visited Mar. 9, 2021).
[44] Senate Directory, The Ohio Legislature, https://www.legislature.ohio.gov/legislators/senate-directory (last visited Mar. 9, 2021); House Directory, The Ohio Legislature, https://www.legislature.ohio.gov/legislators/senate-directory (last visited Mar. 9, 2021).
[45] House Concurrent Resolution 19, The Ohio Legislature, https://www.legislature.ohio.gov/legislation/legislation-status?id=GA132-HCR-19 (last visited Mar. 10, 2021).
[46] Senate Bill 12, The Ohio Legislature, https://www.legislature.ohio.gov/legislation/legislation-status?id=GA132-SB-12 (last visited Mar. 10, 2021).
[47] Senate Concurrent Resolution 14, The Ohio Legislature, https://www.legislature.ohio.gov/legislation/legislation-status?id=GA133-SCR-14 (last visited Mar. 10, 2021).
[48] H.B. 2632, 66th Leg., Reg. Sess. (Wa. 2020).
[49]H.B. 3216, 80th Leg., Reg. Sess. (Or. 2019).
