'Am I not a person?' Florida Supreme Court ponders police anonymity under Marsy's Law

The Florida Supreme Court grilled attorneys on both sides of a dispute between the city of Tallahassee and the police union on whether the identities of officers who kill suspects can be kept secret under Marsy’s Law, a constitutional amendment designed to protect victims of crime.

The case arose from two separate incidents in 2020 in which Tallahassee Police Department officers shot and killed armed suspects who were threatening them. The officers were later cleared by a grand jury, and both sides acknowledged that their conduct was not an issue.

The officers, known to the public only as John Doe 1 and 2, sought protection after the shootings under Marsy’s Law, which Florida voters approved in 2018. The amendment, marketed as a way to ensure crime victims were put on an even playing field as defendants in court, includes provisions allowing police departments to keep information out of reports that could identify victims.

The legal fight began in 2020 after the city announced plans to release the names of the two officers, prompting the Florida Police Benevolent Association to seek an injunction. The city, joined by a coalition of media outlets pushing for greater police transparency, won in Leon Circuit Court but was reversed last year by the 1st District Court of Appeal. There is no timeline for when the court will issue its ruling.

During oral arguments on Wednesday, justices homed in on language in Marsy’s Law saying that it applies to all persons, which is the crux of the PBA’s argument.

Philip Padavano, an outside attorney representing the city, argued that when an officer uses force against a suspect, he or she is acting as an agent of the government, not an individual on his or her own behalf. For that reason, he said, officers can’t be regarded as just “persons” as defined in Marsy’s Law.

“Am I not a person at this moment because I’m wearing a robe?” Justice John Couriel asked Padavano, a former 2nd Judicial Circuit and 1st DCA judge.

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“They’re human beings — I get that,” Padavano replied. “They were, in fact, the government on that day when they went out there with their weapons, the power to arrest people, the power to detain people, the power to use deadly force against people if necessary.”

Couriel questioned why the city “put so many eggs in this basket” and whether a much stronger argument would have been that officers, whose names are on their lapels, waive their rights because they’ve disclosed their identities. Padavano acknowledged that was a good point that had not come up previously in the litigation.

Chief Justice Carlos Muñiz asked PBA attorney Luke Newman to address what he saw as the two most important issues in the case — the anonymity of police officers and whether criminal proceedings are necessary for an officer to get Marsy’s Law protection.

The city argued that there must be a “triggering event” — the start of criminal proceedings against a defendant — which didn’t occur in either of the Tallahassee cases because both would-be defendants were killed. The Circuit Court agreed with that take, but the 1st DCA rejected it.

Newman said the language in Marsy’s Law says protections begin at the time of victimization.

“I don’t think there’s any way to give fair reading to ‘at the time of his or her victimization’ with the idea they suggested, which is there’s necessarily a later point in time where it actually kicks in,” Newman said.

Couriel said the PBA seemed to be arguing for a “bottomless pit of anonymity” for police. He said that for police to be effective, they would want to be known in the community to help generate leads and informants.

“Being anonymous seems anathema to policing as we understand it in a free Democratic republic,” Couriel said. “It says ‘Smith’ on Officer Smith’s lapel. What do we do about that?”

“We talked about the rights being created at the time of victimization,” Newman replied. “When you put the name plate on, you weren’t a crime victim at that point. You became a crime victim later when you were out there working your beat.”

The PBA argued that both Tallahassee officers were victims of aggravated assault when they encountered the two suspects, Tony McDade and Wilbon Woodard. McDade, a Black transgender man whose death became a rallying cry by some in the Black Lives Matter movement, was killed May 27, 2020, two days after George Floyd’s killing by Minneapolis police.

A coalition of media organizations, including the Gannett Company, which owns the Tallahassee Democrat, sided with the city in the litigation. Others in the coalition include the First Amendment Foundation, the Florida Press Association, the McClatchy Company and the New York Times Company.

Mark Caramanica, a Tampa attorney representing media outlets, said much of what Marsy’s Law was designed to protect “simply falls away” because the victims in the case killed their victimizers.

“It would result in perpetual anonymity,” he said. “And that in our view simply turns Marsy’s Law and the policy reasons that are baked into the law ... on its head.”

Contact Jeff Burlew at jburlew@tallahassee.com and follow @JeffBurlew on Twitter.

This article originally appeared on Tallahassee Democrat: Florida Supreme Court hears Marsy's Law case involving police shootings