Know Your Legal Rights / Can I be arrested for making a false police report?

By Barry Krischer

This is a free country. We get to say what we want. Our expressed thoughts are protected by the First Amendment. Last month in this column we learned that even giving an officer the “finger” was protected speech. However, not all speech is protected. As Justice Holmes famously said in Schenck v. United States, (1919), “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” And under Florida Statute 817.49, filing a false police report of the commission of a crime is one of the few types of speech also not protected by the First Amendment. In fact, a person who makes a false police report can be charged with a crime. If applicable the person may also be liable for damages to the other person’s reputation.

A person that is interviewed by an officer about a past crime or traffic accident who states the vehicle was a 2-door or 4-door and is incorrect; or states the person fleeing the convenience store was tall, or short, or white, or male, and is mistaken in their identification, hasn’t necessarily filed a false police report. Eyewitness testimony is inherently unreliable. As long as the errors were inadvertent, and not intended to mislead the investigation, there is no criminal culpability. However, blatantly making a false report of a non-existent crime to the police is an entirely different matter. Reporting a non-existent crime is a crime in itself. The person’s motivation, whether to deflect responsibility from him/herself, or to simply cause another person trouble with the police (often a disgruntled employee or paramour), or to defraud an insurance company, is not at issue. The person making an intentionally false police report can be charged criminally.

The burden of proof is on the State to prove beyond a reasonable doubt that the person committed the offense in order to get a conviction. The elements the State must prove are:

  • You willfully gave or provided [or caused to be given or provided] false information or a false report about the commission of a crime under Florida law to a law enforcement officer;

  • You knew the information you provided was false because no such crime had been committed;

  • The information or report was given or said (or caused to be given or said) to a law enforcement officer; and

  • You knew, or should have known, that the person whom you were giving the information to was indeed a law enforcement officer.

At the risk of confusing matters, it is important to point out that a person who knowingly gives false information to a law enforcement officer who is investigating the commission of any crime, also commits a crime. See, F.S. 837.05, False reports to law enforcement authorities. The penalties are enhanced for repeat convictions and/or the person knowingly gives false information to a law enforcement officer concerning the commission of a capital felony. Thus, lying to the police during the investigation of a past or on-going crime is a misdemeanor, unless the reporter has been convicted of lying in an investigation previously, or the crime currently under investigation is a capital offense, e.g. murder.

Lastly, one other false report has its own statute. F.S. 790.163, “False report about planting bomb, explosive, or weapon of mass destruction.” The statute makes it unlawful for any person to make a false report, with intent to deceive, mislead, or otherwise misinform any person, concerning the placing or planting of any bomb, dynamite, other deadly explosive, or weapon of mass destruction. Any person convicted of this crime commits a felony of the second degree, punishable with up to 15 years in state prison.

The seriousness of this offense is further demonstrated by the statute’s provision that proof that a person accused of violating this section knowingly made a false report is clear-cut evidence of the accused person’s intent to deceive, mislead, or otherwise misinform any person. In-other-words proof a person made the report proves the other elements of the crime. Lastly, a person convicted of a violation of this statute that resulted in the mobilization or action by any law enforcement officer or any state or local agency, may also be required to pay restitution for all of the costs and damages incurred from the false report, which could be staggering.

So, the answer to the opening question is an emphatic “yes.”

Editor’s Note: Barry Krischer has been a criminal law practitioner for 48 years. He served as State Attorney in Palm Beach County from 1992 – 2008. He currently volunteers at the Palm Beach County Sheriff’s Office, Legal Affairs Unit, and regularly provides in-service training to law enforcement officers. He can be reached at [email protected].

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