Florida Supreme Court debate about Marsy’s Law and victims’ privacy reflects fiery politics of law enforcement

By Noreen Marcus, FloridaBulldog.org

Five years after Florida voters approved Marsy’s Law, featuring a right to privacy for crime victims, the state’s highest court is deciding how far the law stretches:

Does it shield Florida cops from external review and potential discipline? Should it be susceptible to exploitation by tough-on-crime politicians as a handy marketing tool?

Still undecided almost a year after it was argued, the Supreme Court case that may answer those questions has drawn friend-of-the-court briefs from a range of stakeholders as diverse as the Volusia County Sheriff’s Office and the City of Miami Civilian Investigative Panel.

This moment is historic, says a brief from the ACLU of Florida. “Citizens and communities across Florida and the nation have been confronted with unprecedented evidence of conscience-shocking police lawlessness and of abject failures of accountability.

“These documented abuses are an affront to justice and the rule of law; and the strains they have caused between communities and police departments, and their corrosive effect on law enforcement’s ability to discharge its public safety responsibilities, surely account for the unusually broad spectrum of parties before the court here,” the ACLU brief says.

The City of Tallahassee is leading the charge against Florida police departments — starting with its own — that appropriated the 2018 privacy law by broadly defining “victim” to protect on-duty officers from public oversight. Statewide law enforcement is split on whether a policy of openness invites harassment or ensures accountability.

A policy of secrecy can arouse public strife. Protesters turned out in the streets of Tallahassee in September 2020 after a grand jury decided against indicting two unidentified officers who’d been involved in on-duty deaths, a shooting and a stabbing.

BROTHER’S QUEST FOR JUSTICE

At least half of Florida’s biggest police agencies, including the City of Miami and Broward County, haven’t waited for a court to determine the legality of withholding officer-identifying facts, according to an investigation USA Today and ProPublica published in October 2020.

The departments refused to release names of officers who claimed victims’ rights even when they hadn’t been injured on the job. This practice galvanized the media community; a media coalition supports Tallahassee in the Supreme Court case.

“It really goes to the core of why we have open government laws and the public’s ability to conduct oversight of government action,” media coalition lawyer Mark Caramanica said.

Marsy’s Law started with a personal quest by tech billionaire Henry Nicholas to honor the memory of his sister, Marsalee “Marsy” Ann Nicholas, a Santa Barbara, CA college student whose ex-boyfriend stalked and fatally shot her in 1983.

Eventually the shooter was convicted of second-degree murder. While he was out on bail, he terrorized Nicholas’s mother in a grocery store after the funeral for her 21-year-old daughter. The killer, Kerry Michael Conley, died in prison in 2007.

A GOOD LAW, BUT…

Henry Nicholas worked for many years to achieve passage of a California crime victims bill of rights; he succeeded in 2008. Then he spent more than $100 million to take his campaign, Marsy’s Law for All, national. Today it’s the law in 17 states.

Even opponents of covering police under the Florida law acknowledge the value of its mission.

“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 in a court document.

“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 is another lawyer for the media coalition in the Supreme Court case.

In July 2020 Tallahassee Circuit Judge Charles Dodson agreed with the city that Marsy’s Law was never intended to protect the privacy of on-duty police officers.

He ruled that the public interest in high-profile use-of-force cases outweighs an individual officer’s interest in keeping their name off the record to avoid harassment, especially when the assailant is dead, as in the case before Dodson.

JOHN DOE 1&2 BEAT CITY

Nine months later, the First District Court of Appeal reversed Dodson’s ruling and sided with the Police Benevolent Association union and the Tallahassee officers, “John Doe 1” and “John Doe 2,” who had responded to threats with deadly force.

The court’s reasoning boils down to this: By its terms, Marsy’s Law applies to people who’ve been victimized – and cops are people, too.

“However compelling the public policy considerations may be in favoring broad public records disclosure and the ability of the public to access records of the machinery of government, it is not the province of the judiciary to read into the language of the constitutional text anything not included or to limit the text in a manner not supported by its plain language,” Judge Lori Rowe wrote, joined by Judges Timothy Osterhaus and Robert Long.

The 1st DCA’s ruling applies locally; only the Florida Supreme Court can set legal guidelines for the entire state. Tallahassee city officials decided to risk an appeal.

The high court heard arguments in the case almost 11 months ago and still hasn’t produced a decision. While police, government and media interests watch for the outcome, two unusual Marsy’s Law-related filings have popped up in separate court dockets.

Attorney General Ashley Moody asserted that Marsy’s Law should make it harder for Death Row inmates to obtain stays of execution. She made the argument in the case of Michael Duane Zack shortly before he was executed on Oct. 3.

Her filing was “just another bit of posturing,” according to a lawyer who closely follows the issue. Since the Supreme Court already has a procedure in place to reject stays based on flimsy or repetitive arguments, Moody’s stance was “much ado about nothing,” the lawyer said, speaking on condition of anonymity to protect client interests.

More puzzling was an Oct. 13 filing in the Tallahassee v. PBA docket. PBA lawyer Luke Newman directed the court’s attention to a newspaper article his client probably doesn’t like.

MARSY’S LAW GROUP SUPPORTS CITY

Newman’s filing links to a recent story in the Tallahassee Democrat that conveys a message from Marsy’s Law for All, the national campaign that helped get out the vote to approve the Florida law in 2018. The Democrat belongs to the media coalition backing  Tallahassee in the Supreme Court.

Here’s the campaign’s message: Marsy’s Law shouldn’t apply to use-of-force cases involving on-duty Florida police. The group said it was responding to the experience of other states where officers’ identities are kept confidential.

“When reviewing the conduct of an on-duty law enforcement officer who has used physical force, the right to privacy of their name must quickly yield to the public’s right to know,” the statement says.

Newman delivered that message to the justices. Whether it will influence their decision remains to be seen. Neither Newman nor the Marsy’s Law campaign responded to a phone call or an email from Florida Bulldog seeking comment.

At the Dec. 7, 2022 oral argument, questioning led by Chief Justice Carlos Muniz and Justice John Couriel tracked and reinforced the arguments that prevailed in the 1st DCA. If the ultra-conservative court is sympathetic to concerns about open records and government accountability, the justices kept that sentiment to themselves.

Instead, Couriel seemed intent on convincing counsel that police deserve the protections afforded to victims because they are “people” for purposes of Marsy’s Law. He challenged Philip Padovano, representing Tallahassee, to name a case favorable to his side in which a police officer isn’t classified as a person.

Couriel supplied his own answer: “Plessy, Plessy,” he said forcefully. He meant the notorious Plessy v. Ferguson decision of 1896, in which the U.S. Supreme Court assumed the bogus inferiority of African-Americans in order to justify “separate but equal” public accommodations.