Deterring and Punishing Race-Based False Police Reports Under Proposed Amendment to New Jersey’s Bias Intimidation Statute

by:  Sharon Price-Cates, Esq.

It has been well-publicized on social media and video the actions of a White woman in New York City’s Central Park “weaponizing” the use of law enforcement to punish and falsely accuse a Black bird watcher — repeatedly — of threatening her life. This occurred following a request that she place a leash on her dog, as required, and the Black bird watcher’s refusal to stop video-recording the encounter. As a result, there has been renewed debate across the country on the harms to Black people when sham police reports are made based on false and or otherwise innocuous activity that would not have been reported to police if the actor had been white.

The term “swatting,” derived from “SWAT” the acronym for Special Weapons And Tactics, has
been used also to refer to making similar 9-1-1 calls to falsely report a life-threatening crime,
with the intention to cause police units or heavily armed tactical squads to respond. The
potential for serious injury to innocent persons, including death, is obvious. Race-based
weaponizing and swatting is premised on racial stereotypes that Black people are prone to
criminality and recidivist law-breaking. Such bias, whether implicit (unconscious) or explicit
(conscious) may impact the quick, gut reactions about what really happened and whom to
believe when police reach the scene. Race-based weaponizers and swatters are banking on
illicit presumptions, power, and privilege to discredit and harm targeted Black victims, who may
not even have a chance to profess their innocence; notwithstanding being a Harvard graduate
like the Central Park bird watcher, or just an otherwise law-abiding citizen legitimately present
in a public place or other space.

In the 2018-2019 Legislative Session a bill was introduced in the New Jersey General
Assembly (A-4681) on October 29, 2018, to include false incrimination and filing false police
reports to intimidate and harass on the basis or race and other protected status as forms of
bias intimidation. The bill was re-introduced on January 14, 2020, in the 2020-2021 Legislative
Session as A-1906, with updated sponsorship and co-sponsorship lead by Assemblywoman
Yvonne Lopez (D-19, Middlesex) and Assemblyman Benjie E. Wimberly (D-35, Bergen and
Passaic) as Primary Sponsors. The bill was favorably voted out of committee on June 15, 2020,
as substitute bill A-4230. It was passed by the General Assembly on June 18, 2020, by a
78-0-0 vote. A related bill was introduced in the Senate on June 29, 2020, as S-2635, with
Senator Nia H. Gill (D-34, Essex) as the Primary Sponsor. The bill is now in the Senate Law and
Public Safety Committee.

Assembly Bill A-1906/4230 and Senate Bill S-2635 would amend N.J.S.A. 2C:16-1 and
N.J.S.A. 2C:33-3 to make unlawful giving false reports to law enforcement authorities that are
motivated by bias and discriminatory animus. Under New Jersey’s current bias intimidation
statute, a person commits the offense of bias intimidation if he purposefully or knowingly
commits, attempts to commit, or conspires with another to commit, or threaten the immediate
commission of certain offenses against a victim because of the victim’s race, color, religion,
national origin, disability, gender, sexual orientation, gender identity or expression or ethnicity.
Currently, underlying predicate offenses for bias intimidation include harassment, assault,
terroristic threats, criminal mischief, arson and homicide.

With the addition of N.J.S.A. 2C:28-4 to the list of predicate bias intimidation offenses,
a person who knowingly gives or causes to be given false information to any law enforcement
officer with the purpose to implicate another commits a crime of the third degree, except the offense is a crime of the second degree if the false information which the actor gave or caused to be given would implicate the person in a crime of the first or second degree.

The bias intimidation statute serves as a penalty enhancement to the underlying offense
perpetrated against the victim to deter and punish bias related crimes. It is a crime of the fourth
degree if the underlying offense is a disorderly persons or petty disorderly persons offense.
Otherwise bias intimidation is a crime one degree higher than the most serious offense
committed against the victim, unless that offense is a first degree offense. In that case, the bias
intimidation offense will also be a first degree offense and exposing the actor to 15 to 30 years
in prison.

The addition of a new section (f) to N.J.S.A. 2C:33-3 would provide that 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 the 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.

Subsequent to the proposed amendment of the bias intimidation statute an incident in
Montclair, New Jersey also made the national news. Video circulating on social media showed
a White woman calling police on Black neighbors whom she accused of assaulting her after the
White woman came to their home, uninvited, questioning whether they had permits to do work
on their property. White neighbors shown in the video challenged the claim, asserting that the
Black neighbors did not assault anyone, adding to the assertions by the lawyers, law school
faculty Black neighbors, that the offending White woman had been harassing them for two
years.

Few states make false race-based police reports an additional or enhanced criminal
offense. Most recently, on June 12, 2020, within weeks of the New York City Central Park false
report, New York Governor Andrew Cuomo signed into law a bill making false race-based
reports a criminal offense. Two years earlier, New York legislator Jesse Hamilton had
introduced a bill after a White woman called police on him while he was campaigning in
Brooklyn. Governor Cuomo had also empaneled a Hate Crime Task Force to look at issues of
increased reports of bias motivated threats, harassment and violence.

If Senate Bill S-2635 also moves from committee and is voted upon favorably by the
full Senate and then signed into law by Governor Phil Murphy, New Jersey would join New York
and the state of Washington, which in June 2020 also passed a law addressing false police
reports motivated by race and other protected status.

Sharon Price-Cates, Esquire is a past president of the Association of Black Women Lawyers of
New Jersey and member of the Social Justice Committee, Policy & Legislative Analysis subcommittee.