Courthouse News Service
By Kyle Anne Uniss
COLUMBUS, Ohio — The Ohio Supreme Court recently grappled with the question of whether a city can be considered a victim of a crime under state law and whether it is entitled to restitution for crimes.
Michael Knab called 911 in April 2018 to report an active shooter at his home in Centerville, claiming someone had been shot. Because of the alarming nature of the report, most officers in the Centerville Police Department responded to the call.
But once there, Knab’s mother and a man staying at the home informed the officers that there was no active shooter and no one had been shot or injured. She told the police that her son may have been taking methamphetamines and was paranoid.
Police found no firearms on the property during a search and saw no signs that any guns had been fired. They did find drug paraphernalia, a meat cleaver, a machete, unidentified pills and ammunition. Knab was charged with false reporting and improper use of 911.
He was found guilty of both charges. The Kettering Municipal Court ordered him to pay Centerville $1,375 in restitution, a number calculated by Centerville police for the lost time officers spent responding to the call from Knab rather than performing their regular duties.
Knab appealed his conviction and sentence to Ohio’s Second District Court of Appeals, which affirmed his conviction but vacated the restitution order. The court found that the city cannot be a victim as defined by Ohio law and that Centerville did not experience economic loss in a way that would allow it to receive restitution under state law.
Centerville appealed that decision to the Ohio Supreme Court, arguing that the city is a victim under the so-called Marsy’s Law and is entitled to restitution. Marsy’s Law, approved by Ohio voters in 2017, gives crime victims specific rights in the legal system and expands who qualifies as a victim.
The state’s high court agreed to decide whether a municipality can be considered a victim, but it will not review the claim that Centerville suffered economic loss in its response to Knab’s 911 call.
Last month’s hearing was held via teleconference due to the Covid-19 pandemic.
Steve Bacon, representing Centerville, argued that a city can be a victim and that determination should be made on a case-by-case basis. He said Centerville officers were pulled away from their other duties to answer a bogus call for help.
“Were there calls that went unanswered, other citizens that did not have police resources as a result of this?” Chief Justice Maureen O’Connor asked.
Bacon said that was not covered in the restitution hearing and he did not know, but that the unique aspect of this crime is the abuse of a 911 system as well as a false report to the police, and Marsy’s Law entitles victims to restitution for injuries suffered as a result of the act.
Justice Patrick DeWine said that, under Bacon’s definition, municipalities would be entitled to restitution for any crime. Bacon answered that there would be checks under the terms of the law, which cites direct and proximate harm.
“You’re saying that the city had to expend resources as the result of his crime. Isn’t that the case in any crime?” asked DeWine, son of the state’s Republican governor.
In response, Bacon defined direct and proximate harm as “an act or omission, which, in the natural and continuous sequence of events, directly produces injury, and without which the injury would not have occurred.”
DeWine pressed him further.
“Isn’t that the case with any crime? Doesn’t any crime naturally lead to an investigation, which leads to the expenditure of taxpayer dollars?” the judge asked.
Bacon said the determination hinges on whether the crime caused extraordinary resources to be allocated or outside resources to be used.
“I think it would be more clear in this instance if there had been overtime costs. It would be more clear in this case if certain other special services had been incorporated,” the attorney said. “In this instance, it’s particularly murky in regard to the patrolmen who were already on call and were already responding, but, in this case, it’s the additional resources that were expended.”
DeWine said he doubted the average voter believed they were creating rights for municipalities when they voted on the Marsy’s Law amendment.
Patrick Clark of the Ohio Public Defender’s Office argued for Knab, echoing the argument made in Knab’s brief to the court that “cities are not people.”
Centerville is asking for restitution to pay for the hourly wages of government employees,” the attorney said during opening arguments. “This is a budget subsidy from one of its residents for costs that would have occurred even if Mr. Knab never called 911.”
Clark said that if a municipality can be named a victim, it will harm actual victims in a variety of ways.
“If a perpetrator bombed a city building, can the city recover in restitution the cost of that building?” Justice Patrick Fischer asked.
Clark said other laws allow for such recovery, so “there is no need for Marsy’s Law to permit that.”
Chief Justice O’Connor asked, “If the city had to, in this circumstance, bring in more staff, more police, brought in the SWAT team, that were off duty and were now getting overtime, and there’s equipment and etcetera – would that be covered under the other statutes rather than Marsy’s Law?”
Clark replied that those things are not currently covered under the other statutes, but that a municipality has options other than Marsy’s Law.
“Defining a city as a victim under Marsy’s Law starts to walk into the constitutional thicket,” he said. “Excluding municipalities from the definition of victim allows a policy debate about when city governments are entitled to criminal restitution to flow through traditional, democratic channels.”
O’Connor asked him for clarification.
“So, you’re saying that additional expenses that are incurred as part of any kind of criminal activity, bringing in people and paying them overtime, that’s not recoverable right now just because that’s the business of the police department,” the judge said.
“There are crimes for which it would be recoverable,” Clark said. “For example, the pattern of corrupt activity statute allows for restitution for investigative expenses in a recognition that investigating that kind of crime can be very expensive. That shows us that the General Assembly is more than able to carve out situations in which municipal restitution is appropriate. We should leave that question to the General Assembly.”
Clark further argued that defining a municipality as a victim in an attempt to retrieve overtime expenses “becomes really thorny” because some of those expenses are discretionary.
“How a city responds to a crime plays a role in how expenses are incurred,” he told the judges.
When questioned by Justice Fischer as to whether municipalities can be considered people, Clark explained that under Ohio law there are “specific, narrower definitions of person for specific chapters that include municipal corporations. There would be no need to include that additional language if, in fact, the general definition of person included municipal corporations.”
O’Connor asked Clark if he believed Knab’s actions were taken against Centerville, to which Clark said yes, but that did not harm the city.
The chief justice then pointed out there doesn’t need to be harm to be a victim. Clark responded that although harm isn’t necessary in defining a victim, harm does come into play when deciding if a municipality can recover costs.
“Looking to the harm is necessary when deciding if a city might be a victim, if there’s room in Marsy’s Law for a city to be a victim,” he said.
The American Civil Liberties Union of Ohio has taken Knab’s side in the case, filing an amicus brief with the court last December. The group said the expansion of Marsy’s Law “creates a dangerous disincentive to call 911 by making public services pay-to-play.”
“Case law prior to Marsy’s Law did not allow a government entity to obtain restitution when it was not the actual victim of a crime, and Marsy’s Law did not change that,” the group said on its website. “Calling 911 is also protected under the First Amendment right to petition the government, and people exercising that right should not be assessed monetary penalties for doing so.”
It is unclear when the Ohio Supreme Court will issue its decision in the case. Neither side was available for comment after the hearing.