By Noreen Marcus, FloridaBulldog.org
The next time there is a police-involved shooting in Florida, the media may not have the right to know the name of the officer who pulled the trigger.
Reporters and the public would have to rely on police and prosecutors to scrutinize the actions of their own colleagues and, if warranted, press charges.
Without a name to look up, no independent review of a personnel record, no ability to verify complaints of excessive use of force or disciplinary action, no way for law enforcement to show accountability.
That disturbing prospect has drawn the attention of open government attorneys and the media to a case moving quickly in the Florida Supreme Court, City of Tallahassee v. Police Benevolent Association (PBA).
“It really goes to the core of why we have open government laws and the ability of the public to oversee government action,” said Tampa attorney Mark Caramanica, who represents a media coalition involved in the case.
POLICE CLAIMS VICTIM
At issue is the breadth of Marsy’s Law, a constitutional amendment intended to protect crime victims and their survivors from torment by keeping their personal information private. Florida voters approved the amendment in 2018.
Law enforcement agencies soon began to assert that officers in threatening situations are also victims in need of protection, even if their victimizers are dead.
Now, the Supreme Court could determine whether police should be able to keep their names and other identifying information out of the public domain.
Caramanica argues that this is not what supporters of Marsy’s Law wanted. “If you had told them they were voting for anonymous police killings, I don’t think they would have voted for that,” he said.
DOE OFFICERS 1 AND 2 GO TO COURT
The case began when Tallahassee city officials attempted to comply with state public records law by releasing information about officers in two on-duty shootings in May 2020 that left two people dead.
The police union sued the city to stop the release, and a circuit court judge sided with the city. The union challenged the judge’s decision in the First District Court of Appeals and won.
Last December, the Supreme Court decided to hear the case and examine this issue: Does a law that protects the privacy of crime victims also protect police officers who say they themselves were victims of threatening contact?
Court documents identify the police in the Tallahassee shootings only as Officer Doe 1 and Officer Doe 2, so not even their gender is publicly available.
Oral argument in the Supreme Court is scheduled for today.
FIRED MOTHER WAS TERRIFIED
Marsy’s Law honors Marsalee “Marsy” Ann Nicholas. A former boyfriend stalked and fatally shot the 21-year-old college student from Santa Barbara, California, in 1983.
Ultimately, the shooter was convicted of second degree murder. But while he was out on bail, he tracked down and terrorized Marsy’s mother at a grocery store.
Marsy’s brother, a tech billionaire named Henry Nicholas, wanted to spare other survivors the trauma their family suffered, in part by keeping their names out of the news. He worked for decades to put a bill of rights for crime victims on California’s ballot; it finally happened in 2008.
After that, Nicholas took his campaign, Marsy’s Law for All, to the national level. To date, he has achieved success in Florida and a dozen other states. Efforts are underway to pass victim privacy laws in six other states, the campaign website says.
Shortly after Florida adopted the law, police departments began claiming they have privacy protections for victims, according to a joint project. USA This day Y ProPublica published in October 2020.
COP: MARSY’S LAW PROTECTS US
The investigation found that at least half of Florida’s 30 largest law enforcement agencies, including those in Miami-Dade and Broward counties, routinely withhold the names of officers. When challenged, they rely on the authority of Marsy’s Law.
“Officers were not injured in at least half of the incidents for which they claimed victims’ rights, records show,” the bill says.
“Even minor movements that officers perceived as threatening, such as walking aggressively or reaching into a pocket, qualified as attacks on officers, prompting protection from the law, according to the agencies,” he says.
In May 2020, a Tallahassee police officer fatally shot Tony McDade, a black transgender man who had pointed a gun at an officer responding to a knife attack. A grand jury later found that the use of force against McDade was justified.
However, this police-involved shooting, the third in three months, sparked protests on the streets of Tallahassee. As the city was about to release the names of the officers in the shooting of McDade and another, his union went to court.
1st DCA: POLICE OFFICErs ARE VICTIMS UNDER MARSY’S LAW
The PBA asked Tallahassee Circuit Judge Charles Dodson to issue this statement: Marsy’s Law protects officers from exposure to harassment that could encourage the release of their names or any other identifying information.
Dodson ruled against the union. “This Court cannot interpret Marsy’s Law to protect police officers from public scrutiny of their official actions,” he wrote.
On appeal, the First District Court decided that police fall within the law’s definition of “victim” and struck down Dodson’s order.
Although Marsy’s Law may appear to conflict with public records law, it actually does not because they can be read “in harmony,” Judge Lori Rowe wrote in a three-judge panel ruling dated Jan. 6. April 2021.
MEDIA GROUPS SIDE WITH THE CITY
The Supreme Court could have declined to review the First DCA’s opinion and left it as law in the Tallahassee-based First District.
In taking up the case, the justices signaled that they want to reverse the First District court’s decision—an unusual move for this Supreme Court panel—or they want all state judges to comply with the decision and keep the names of the officers confidential.
Many media groups and businesses are backing the city’s bid for a rollback.
“Overall, Marsy’s Law was designed for a legitimate purpose: to put the rights of crime victims on a more equal footing with those of their accused criminal offenders,” attorney Carol Jean LoCicero wrote.
“But it should not become a vehicle to protect government actors, imbued with the authority to use deadly force, from public scrutiny, particularly when the ‘perpetrator’ is killed by the ‘victim,’” their report states. LoCicero and Caramanica represent the media coalition that includes the Florida Press Association, the The New Herald, The New York Times and others.
PBA: THE POLICE ARE PEOPLE TOO
The court rejected the first brief by Luke Newman, the Tallahassee appellate attorney representing the PBA, because it violated style rules. The entry in the file that says that the brief was annulled establishes the proper format.
Newman’s main report is primarily an account of the McDade shooting, an attack on the media, and a tirade against the city for “rewriting the constitution.” He argues that the language in Marsy’s Law protects the records of “persons”; since policemen are people, the text clearly shows that policemen are covered.
“In our adversarial system, the side with the bad argument has the incentive to urge the deviation or distortion of the governing text… The deviation and distortion of the governing text is all the petitioners bring,” Newman contended.
“The petitioners’ arguments are legally unfounded. The petitioners’ arguments lack factual foundation. Oral argument cannot save this,” he added, urging the court to affirm the First District’s decision.
PRIVACY FRAMER RECALLS DEBATES
The Supreme Court’s evolving approach to privacy and public records worries retired government attorney Sharyn Smith, one of the authors who gave meaning to those terms.
In the 1970s, as a senior assistant to Attorney General Robert Shevin, Smith worked with the Legislature to write open government legislation. In 1978, when he was Shevin’s liaison with the Constitutional Review Commission, he helped draft the state’s privacy law.
Smith described Shevin as a defender of public records and meetings who wanted to make sure the commission and subsequent voters did not sacrifice open government in the name of privacy. In the years immediately following the Roe v. Wade of 1973, the privacy debate was not about abortion (the right to choose was then an established law), but about where to draw the line between public and private information, according to Smith.
In the end, he said, Shevin inspired this oft-overlooked caveat to the Constitution’s “right to be left alone” guarantee: “This section shall not be construed to limit the public’s right of access to records and public gatherings as provided by law. ”
Smith said Shevin rightly feared that too much emphasis on privatizing information would allow the government to operate in secrecy. And he expects the very conservative Supreme Court to reinforce this anti-media trend.
“Newsgathering is hard enough these days with all the pressures on investigative reporting that didn’t exist in 1977,” Smith wrote in an email. “Making it even harder to get public information is just another step toward dismantling our democracy.”