Herald-Tribune challenges order against identifying deputies in fatal shooting

The Sarasota Herald-Tribune is seeking to overturn an emergency injunction granted by a judge Friday night to the Sarasota County Sheriff’s Office and the 12th Judicial Circuit State Attorney’s Office barring the news organization from publishing the names of two of the deputies involved in a fatal shooting.

The ruling, which granted the injunction without notice to the Herald-Tribune, is an unconstitutional prior restraint of the press, prohibited by the First Amendment to the U.S. Constitution as well as the Florida Constitution, according to the newspaper’s emergency motion to dissolve the injunction. The motion was filed Monday by Carol Jean LoCicero and James B. Lake, from the firm of Thomas & LoCicero in Tampa, which represents the Herald-Tribune.

“Freedom of speech means that it’s up to the Herald-Tribune to decide whether to report information in its possession, especially facts about such a significant matter as a fatal shooting by law enforcement,” Lake said. “We fully expect that, once our arguments are heard, the injunction will be set aside.”

Previous coverage: Sarasota County deputy fatally shoots armed man during eviction, Sheriff says

More: Supreme Court agrees to consider Marsy’s Law dispute between city of Tallahassee and police union

The injunction was signed at 6:30 p.m. Friday night by Chief Circuit Judge Charles E. Roberts and says the Herald-Tribune is “enjoined from publishing ... the personal information of Deputy Doe #1 and Deputy Doe #2, including but not limited to their names until further order of this Court.”

“We appreciate that the chief judge has signed a temporary order preventing the release of information until an expedited hearing can be held to resolve the parties’ differing interpretations of the privacy protections afforded to our deputies by Marsy’s Law and the Florida Constitution,” Sarasota Sheriff Kurt Hoffman wrote in a statement released Tuesday through the agency’s general counsel.

Late Wednesday afternoon, that hearing was scheduled for Tuesday, June 21, 11 days after the injunction was issued.

The last names of three deputies involved in a call for a court-ordered eviction in which one of them shot and killed Jeremiah Evans in Sarasota on April 1 were provided to the Herald-Tribune by the State Attorney’s Office in response to a routine public records request for a letter in which prosecutors had ruled the shooting was justified.

The Sheriff’s Office contends the identities of the deputies, including the one who killed Evans, are confidential under Marsy’s Law, which voters added to the Florida Constitution in 2018 and gives certain protections to crime victims.

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Many law enforcement agencies now cite the law to withhold names of officers who use deadly force, saying they are crime victims because they fired their gun after a crime such as an assault or battery was committed against them. Previously in Florida, such names were routinely made public, allowing journalists and citizens to review the officers’ past experience and work records.

At the time of the incident at the Palm Place Condominium in Sarasota, sheriff’s officials said the three deputies were trying to evict the 58-year-old Evans, who had not paid rent, when he armed himself with a knife, came at deputies and was shot by one of them.

In response to a public records request, prosecutors released a one-page letter signed by Chief Assistant State Attorney Craig Schaeffer clearing the deputy who fired the shot and including the three deputies’ last names. The document concluded Evans “took steps towards the deputies while holding the knife in front of him in a threatening manner” and that the deputy’s “shooting of the decedent was the result of justifiable use of deadly force.”

The Herald-Tribune used publicly available information to identify the full name of the deputy who fired. It also requested public records from the Sheriff’s Office, including an employee roster and the personnel file of the deputy who discharged the weapon.

In the motion presented to Judge Roberts Friday, attorneys for the Sheriff, State Attorney's Office and two deputies argued that Marsy’s Law prevents “the disclosure of information or records that could be used to locate or harass the victim or the victim’s family, or which could disclose confidential or privileged information of the victim” and that the law does not exclude law enforcement officers acting in their official capacities.

More: Marsy’s Law was meant to protect crime victims. It now hides the identities of cops who use force.

The State Attorney’s Office said Tuesday in a statement that its records department failed to obscure the names as it attempted to promptly respond to a public records request.

“According to current Florida law and the Florida Constitution, law enforcement officers who are victims of crimes are entitled to Marsy’s Law protection. We joined the (sheriff’s) injunction action against ... publishing the law enforcement officer’s name because the (Herald-Tribune) was clearly made aware in writing of the oversight, and it is our understanding the (Herald-Tribune) was going to intentionally violate and not honor Marsy’s Law by publishing his or her name.”

In the newspaper’s motion, attorneys said nothing in Marsy’s law creates a private right of action against third parties or empowers courts to “censor private persons, such as respondents.” If disclosure of the deputies’ names violated Marsy’s Law, the motion argues, the violator was the State Attorney’s Office, not the newspaper.

“Petitioners cite no case law that places Marsy’s Law above the free-speech guarantee in Article I, Section 4 of the Florida Constitution. And any reading of Marsy’s Law that prohibits the news media from publishing publicly disclosed information also would bring Marsy’s Law into conflict with the United States Constitution,” the motion states. It also said the emergency order did not properly follow Florida’s rules of civil procedure.

“For decades, law enforcement officers were immediately identified after a shooting incident, and journalists followed the standard practice of seeking information about the officer’s training, record and service,” said Jennifer Orsi, executive editor of the Herald-Tribune and vice president of content for Gannett’s Florida-Georgia region. “When we received a public record that identified the deputy, we did what we have long done – sought to provide more information to the public about a case of public importance.”

This article originally appeared on Sarasota Herald-Tribune: Judge orders Herald-Tribune not to publish Sarasota deputies’ names