Incidents of police being called on black people not committing crimes lead states to consider new laws

Amy Cooper case highlights difficulty of legislating against people who believe they are progressive

Abigail Hauslohner
Thursday 28 May 2020 13:33
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As she confronted the birdwatcher who asked her to leash her dog in Central Park, Amy Cooper never hurled racist slurs. She did not assault the black man, Christian Cooper, who was filming the interaction. She did not assault his property.

The damage that Ms Cooper, a white investment banker, threatened was implied: that the police would not respond in his favour because of his race.

“I'm going to tell them there's an African-American man threatening my life,” she says on the video as she dials.

With the video came the public outrage: another episode of #LivingWhileBlack - another black resident threatened with law enforcement intervention by another white neighbour in another liberal bastion of diversity.

Politicians across the country have proposed legislation that hopes to curb the practice by issuing fines or criminalising police calls that make false or trumped-up allegations, particularly against people of colour.

New York State Assembly member Felix Ortiz on Wednesday revived a bill he first proposed in 2018 to add a hate crime enhancement to the charge of fabricating a criminal report if bias is involved. The hate crime enhancement, when applied to other criminal charges like murder or assault, can render a more severe sentence.

Four states - New Jersey, Minnesota, Oregon and Washington - have recently considered bills that would criminalise calling the police when crimes have not occurred, some specifying calls that “unlawfully discriminate” or target “protected classes”.

Two states have passed laws. Oregon's took effect on 1 January and Washington's law takes effect on 11 June.

Washington, which unanimously passed its measure in the state House and Senate, elevated false reporting from a “gross misdemeanour” to a felony under specific circumstances, such as if someone is killed.

Legislators wrote in the bill that false reporting has been “weaponised” and often against “protected classes” of people.

Seattle state representative Javier Valdez, one of the sponsors, said on his website that punishment could include 10 years in prison if the call “directly leads to someone's death”. Swatting, in which a 911 caller falsely reports a life-threatening crime so heavily armed tactical units will swarm an innocent person's house, “has disproportionately targeted communities of colour, the LGBT+ community, and religious communities”, he said.

Much of the legislation was filed in response to viral videos: a white woman who called the police on black people for having a barbecue in Oakland, California; a golf course that called the police on a group of black female golfers in Philadelphia; a white father who called police for a black visitor “trespassing" at his San Francisco apartment building.

In one especially notorious encounter, police in 2009 arrested a distinguished black Harvard professor, Henry Louis Gates Jr, at his own home in Cambridge, Massachusetts, after a white woman called the police to report a possible break-in.

The string of cases shows the most prevalent forms of racism are often not obvious or easily outlawed. Even in diverse, urban areas, racist views can lead to tragic consequences for residents of colour, said Robin DiAngelo, an affiliate associate professor of education at the University of Washington, and an expert on racial identities.

“Odds are on a daily basis, people of colour are not running into the Richard Spencers of the world,” said Mr DiAngelo, who is white. “On a daily basis they're running into me: I'm their co-worker, I'm the person in the park. And in fact, most of the daily racism that people of colour experience come from well-meaning, well-intentioned people who would identify as progressive.”

Ms Cooper's “use of police power to enforce the racial order” has a long history that crosses geographic and political boundaries, said Paul Butler, a Georgetown University law professor, and a former prosecutor, who specialises in criminal law and race relations law.

“She summoned a whole tragic history of white women falsely accusing black men, and she did all of that just because he was impertinent enough to ask her to put a dog on a leash,” Mr Butler said.

Ms Cooper issued an apology on Tuesday, and her firm said it had terminated her. She could not be reached for comment.

“We do not have a complaint on record from either party in this case,” said Sergeant Jessica McRorie, a New York police spokesperson. “We have been in the process of reviewing the incident. We've been in touch with the Manhattan DA. We will go where the evidence leads.”

Mr Ortiz, the New York assembly member, conceived of his legislation in 2018 after hearing about false reports against people of colour around the country, including when a Minnesota woman falsely accused four black teenagers of holding knives and carrying out an assault. The proposal gained momentum in Albany after the Central Park encounter went public, with a member of the state Senate agreeing to sponsor the parallel version of the legislation. The bill would need to be passed in both houses of the legislature and would need the support of governor Andrew Cuomo, a Democrat, whose office has been consumed by its response to the pandemic and a phased reopening of businesses.

The goal, Mr Ortiz said, “is to create and bring awareness to people that this is something that is unacceptable”.

Other jurisdictions have made similar efforts, including a city ordinance passed last year in Grand Rapids, Michigan, which created a $500 (£408) civil infraction for “knowingly or recklessly” reporting someone to the police on the sole basis of their race, gender or other bias. The city has yet to levy the charge.

Oregon's law allows people to seek financial damages for reasons such as emotional distress brought on by such calls placed to police.

The law aims to prevent the actions of those who would try to use the police to “unlawfully discriminate against the other person”, its text says. State representative Janelle Bynum, a Democrat, together with two other black legislators, proposed the law after she said a white resident called 911 while she was out campaigning.

Mr Butler and other legal experts said such charges, including a hate-crime enhancement, can be a double-edged sword. “Harsh criminal justice policies rarely work to the advantage of black and Latino minorities,” he said.

Prosecutors also often decline to levy hate crime enhancements - even when they are an option - because it can be difficult to prove racial bias.

More problematic, legal experts say, is that police still have the broad authority to detain people if they are called to a scene. Besides passing laws to punish racist 911 callers, some scholars have suggested reducing police powers to prevent the harm associated with false arrests.

“If there's no videotape and police have to choose who they want to believe, there's a lot of discretion that police exercise,” said Sarah Seo, an associate professor at the University of Iowa College of Law.

In addition to putting a reported suspect's life at risk, a call to the police can create a host of other dangers that are difficult to monitor, Ms Seo said. A landlord faced with the choice between renting an apartment to someone with an arrest on his record and someone without might select the one without.

“An arrest record can do a lot of damage,” she said. “It affects employment, admissions for schools, housing, all sorts of things.”

A close, if uncomfortable, examination of racism's prevalence - including in such supposed liberal bastions like New York City, and among supposedly liberal white people, might be more fruitful, said Brian Levin, a criminologist who directs the Centre for the Study of Hate and Extremism at California State University at San Bernardino.

“Amy Cooper won't do this again. But the next Amy Cooper is going to be influenced by the same influences, and the same impulses,” he said. “We need to have conversations . . . Most people who commit hate crimes are not hardcore skinheads and Klan people. And I think what it shows is that when people are under stress, this latent racism will become operational.”

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