By Noreen Marcus, FloridaBulldog.org
The next time there’s a police-involved shooting in Florida the media may not be entitled to the name of the officer who pulled the trigger.
Reporters and the public would have to trust police and prosecutors to examine their own colleagues’ actions and, if warranted, pursue charges.
Without a name to search, there’s no independent review of a personnel record, no ability to check for excessive force complaints or discipline—no way for law enforcement to show accountability.
That unsettling prospect has drawn the attention of open-government and media lawyers to a case that’s revving up 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 public’s ability to conduct oversight of government action,” said Tampa lawyer Mark Caramanica, who represents a media coalition that’s involved in the case.
POLICE CLAIM VICTIMHOOD
The 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.
Police agencies soon began claiming that officers in threatening situations are also victims who need protection, even if their victimizers are dead.
Now the Supreme Court might determine whether police should be able to keep their names and other identifying information out of the public domain.
Caramanica argues that’s not what supporters of Marsy’s Law wanted. “If you told them they were voting for anonymous police killings, I don’t think they would have voted for that,” he said.
OFFICERS DOE 1 AND 2 GO TO COURT
The case began when Tallahassee city officials tried to comply with the state public records law by releasing information about the cops in two May 2020 on-duty shootings 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 ruling in the First District Court of Appeal and won.
Last December the Supreme Court decided to hear the case and examine this issue: Does a law that protects crime victims’ privacy also shield police who claim they themselves were victimized by threatening contact?
Court documents identify the police in the Tallahassee shootings only as Officer Doe 1 and Officer Doe 2, so even their gender is publicly unavailable.
Oral argument in the Supreme Court is scheduled for today.
BEREFT MOM WAS TERRORIZED
Marsy’s Law honors Marsalee “Marsy” Ann Nicholas. An ex-boyfriend stalked and fatally shot the 21-year-old Santa Barbara, CA college student in 1983.
Eventually the shooter was convicted of second-degree murder. But while he was out on bail, he tracked down and terrorized Marsy’s mother in a grocery store.
Marsy’s brother, a tech billionaire named Henry Nicholas, wanted to spare other survivors the trauma his family endured, in part by keeping their names out of the news. He worked for decades to put a crime victims’ bill of rights on the California ballot; it finally passed in 2008.
After that, Nicholas took his campaign, Marsy’s Law for All, national. To date he’s achieved success in Florida and a dozen other states. Efforts to pass victim privacy laws in six more states are ongoing, the campaign’s website says.
Soon after Florida adopted the law, police departments started asserting they have victim privacy protection, according to a joint project USA Today and ProPublica published in October 2020.
COP: MARSY’S LAW PROTECTS US
The investigation found at least half of Florida’s 30 biggest police agencies, among them Miami-Dade and Broward counties’, routinely withhold officers’ names. When challenged, they rely on the authority of Marsy’s Law.
“Officers sustained no injuries in at least half of the incidents for which they claimed victims’ rights, records show,” the project says.
“Even minor movements that officers perceived as threatening, such as walking aggressively or reaching into a pocket, qualified as batteries on officers — triggering the law’s protection, according to the agencies,” it 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 determined that the use of force against McDade was justified.
Yet this police-involved shooting, the third in three months, ignited protests in the streets of Tallahassee. When the city was about to release the officers’ names in the McDade shooting and one other, their union went to court.
1st DCA: COPS ARE VICTIMS UNDER MARSY’S LAW
The PBA asked Tallahassee Circuit Judge Charles Dodson to issue this declaration: Marsy’s Law protects officers from exposure to the harassment that publicizing their names or any other identifying information might encourage.
Dodson ruled against the union. “This Court cannot interpret Marsy’s Law to shield police officers from public scrutiny of their official actions,” he wrote.
On appeal, the First District Court decided police fall within the law’s definition of “victim” and reversed Dodson’s order.
Though Marsy’s Law may seem to conflict with public-records law, it actually doesn’t because they can be read “in harmony,” Judge Lori Rowe wrote for a three-judge panel ruling dated April 6, 2021.
MEDIA GROUPS SIDE WITH CITY
The Supreme Court could have declined to review the First DCA opinion and just let it stand as law in the Tallahassee-based First District.
By taking the case, the justices signaled they either want to reverse the First District court—an unusual move for this Supreme Court panel—or they want all state judges to comply with the decision and keep cops’ names confidential.
Many media groups and companies are supporting the city’s bid for a reversal.
“Overall, Marsy’s Law was designed with a legitimate purpose: to put crime victim rights on more equal footing with those of their criminal defendant victimizers,” attorney Carol Jean LoCicero wrote.
“But it should not be warped into a vehicle to shield government actors, imbued with the authority to wield lethal force, from public scrutiny, particularly when the ‘victimizer’ is killed by the ‘victim,’” her brief states. LoCicero and Caramanica represent the media coalition that includes the Florida Press Association, the Miami Herald, The New York Times and others.
PBA: POLICE ARE PEOPLE, TOO
The court rejected the first brief from Luke Newman, the Tallahassee appellate lawyer who represents the PBA, because it violated style rules. The docket entry that says the brief was stricken lays out the proper format.
Newman’s main brief is mostly an account of the McDade shooting, an attack on the media and a diatribe against the city for “rewriting the constitution.” He argues that language in Marsy’s Law protects “people’s” records; since police are people, the text clearly shows that police are covered.
“In our adversarial system, the side with the bad argument has the incentive to urge departure from, or distortion of, the governing text….Departure from and distortion of the governing text is all the Petitioners bring,” Newman contended.
“Petitioners’ arguments are legally meritless. Petitioners’ arguments are factually meritless. Oral argument cannot save this,” he added, and urged the court to affirm the First District’s decision.
PRIVACY FRAMER RECALLS DEBATES
The Supreme Court’s evolving approach to privacy and public records troubles retired government lawyer Sharyn Smith, one of the framers who gave those terms meaning.
In the 1970s, as a top aide to Attorney General Robert Shevin, Smith worked with the Legislature to draft open-government laws. In 1978, when she was a Shevin liaison to the Constitutional Revision Commission, she helped write the state privacy law.
Smith described Shevin as a champion of public records and meetings who wanted to make sure the commission, and later voters, didn’t sacrifice open government in the name of privacy. In the years just after the 1973 Roe v. Wade decision, the privacy debate wasn’t about abortion – the right to choose was then settled law – but about where to draw the line between private and public information, according to Smith.
In the end, she said, Shevin inspired this often-overlooked caveat to the Constitution’s “right to be let alone” guarantee: “This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.”
Smith said Shevin correctly feared that too much emphasis on privatizing information would allow government to operate secretively. And she expects the very conservative Supreme Court to reinforce this anti-media trend.
“News gathering is difficult enough these days with all the pressures on investigative reporting which didn’t exist in 1977,” Smith wrote in an email. “Making it even harder to obtain public information is just another step toward dismantling our democracy.”