Oshkosh police cite ‘Marsy’s Law’ to withhold names of officers who shot suspects

This story was originally published by Wisconsin Watch.

An Oshkosh police officer shot and wounded a suicidal 34-year-old man two blocks from the man’s house this summer after authorities say he pointed a hunting rifle at them.

Benson Thao’s identity was splashed in news stories across the region in the weeks after the June 29 shooting, in which the Winnebago County district attorney cleared the police officer’s decision to shoot him with his service rifle.

Yet the identity of the officer and some of the others involved in the incident remain withheld from the public — even in court documents.

The reason for breaking a longstanding norm in Wisconsin law enforcement transparency?

Police and prosecutors say the officers were victims for having a gun pointed at them and Marsy’s Law, a constitutional amendment passed by voters in 2020 to protect victims’ privacy rights, includes law enforcement.

It’s the latest example of a national trend in which more than a dozen states have passed nearly identical amendments leading some law enforcement agencies to withhold identities of witnesses and officers in police shootings.

DAs diverge on release of key information

A similar nonfatal shooting by Stevens Point police in April played out quite differently than the Oshkosh incident. Police shot and wounded an armed man after he allegedly opened fire on officers.

Initially, the names of the police officers were withheld in charging documents against Nicholas E. Meyer, the wounded 41-year-old who faces attempted murder charges.

But Portage County District Attorney Cass Cousins released the names of the two officers — Alexander Beach and Zachary Gartmann — in a press release.

“There is nothing specifically in the statute that says these names must be kept confidential,” Cousins told Wisconsin Watch. “I think there's always gonna be a tension between transparency and victim rights.”

Sometimes the names of police officers are released while the investigation is underway.

In Grand Chute, town police Lt. Russ Blahnik was named less than 24 hours after he shot and wounded a 34-year-old fugitive on Aug. 1. The Outagamie Sheriff’s Office said Pierce Don Lee Folkerts ignored commands to drop what later proved to be a replica pistol.

The difference in disclosure standards can be traced to uncertainty on how to fairly apply Marsy’s Law — a constitutional amendment approved by nearly 75% of Wisconsin voters that broadens the definition of a crime victim and strengthens privacy protections, but which critics say comes at the expense of the rights of criminal defendants.

Oshkosh Police Chief Dean Smith said law enforcement officials are keeping with a national trend to afford more privacy to victims.

“The voters have said this is what they want,” Smith told Wisconsin Watch. “And this is a piece of that.”

But civil rights groups argue the constitutional amendment question on the ballot was simplistic.

“Who in their right mind would be opposed to expanding victims rights?” said Margo Kirchner, executive director of the Wisconsin Justice Initiative, a public interest lawyer group that unsuccessfully sued to overturn the constitutional amendment. “And that one question just leaves out so much information on what it does to defendants’ rights, what it does to the rights of the public to know about police shootings.”

Wisconsin’s constitutional amendment made it through the Republican-controlled Legislature with bipartisan support including an endorsement from Democratic Attorney General Josh Kaul.

A foreseeable problem

Critics in the legal community say the complications created by Marsy’s Law were clear but crime victims’ rights are an untouchable third rail in politics.

“A lot of people knew that this was a problem coming,” said Ed Fallone, an associate law professor at Marquette University Law School who twice ran unsuccessfully for Wisconsin Supreme Court. “And unfortunately, if you were an elected official or candidate for office, like myself, the smart thing to do from a vote-getting standpoint was to just keep your mouth shut.”

More: Michael Bell's son was killed by a police officer. Is he a crime victim?

More: Milwaukee police look to change policy after Bobbie Lou Schoeffling domestic violence case

Oshkosh’s police chief pointed to the Winnebago County district attorney’s decision to withhold the names of the officers in deference to privacy concerns.

Still, he admitted it can cause frustration among some members of the public.

“This is a difficult thing,” Smith said. “I don't know if when Marsy's Law was enshrined within our constitution, if there was a consideration of all the areas that this could touch.”

Winnebago County District Attorney Eric Sparr said it has long been standard for prosecutors to identify police, suspects and even witnesses in court filings.

“Once Marsy's Law hit, we shifted right away and pulled all victim names from public documents,” Sparr told Wisconsin Watch.

That can include police officers that deploy lethal force. Sparr said he understands public concerns about loss of transparency but it’s a tough call and local prosecutors are left trying to interpret victims’ privacy rights, which he says are “annoyingly poorly defined” and left up to interpretation.

“There's not a lot of guidance as far as implementation,” Sparr said. “Department of Justice has made some efforts to interpret and share their interpretations so there can be as much uniformity as possible around the state, but it's just inherently difficult when the language and the amendment was really very general.”

The state Department of Justice referred Wisconsin Watch to a 2021 advisory from its Office of Open Government.

“Authorities cannot create a bright-line rule or policy to withhold all victim records and information,” it said. “Authorities must still apply the public records law balancing test to each and every record, on a case-by-case basis, to determine whether to release the records or information.”

Kaul, who continues to publicly support Marsy’s Law, declined to comment.

“Ensuring that the rights of crime victims are respected both makes Wisconsin safer and is an important part of achieving justice,”Kaul wrote in a statement celebrating the third anniversary of Marsy’s Law in Wisconsin. “I’m proud of the excellent work the Wisconsin Department of Justice does to stand up for victims in Wisconsin.”

The department’s Division of Criminal Investigation continues to release the names of police officers that use deadly force in case files posted on its website.

But in the case of the Oshkosh police shooting, it deferred to that city’s police department’s interpretation of officer privacy in a press release.

Fallone, who chaired the Milwaukee Fire and Police Commission for two years until stepping down in July, said Marsy’s Law allows some police departments to backslide on transparency.

“It's in the eye of the beholder,” Fallone said. “And I'm not surprised that some police departments and prosecutors define the victimhood of police broadly and other departments define it narrowly.”

Names withheld in St. Patrick’s Day police shooting

In another incident from this year, an Oshkosh police officer fired on a wanted suspect as he allegedly drove a car toward the officer. In that case the officer’s name remains blacked out in a legal memo and withheld in charging documents.

Montrael Clark, the 44-year-old suspect who survived a gunshot to the forehead is identified in charging documents and faces felony charges of reckless endangerment.

If the case goes to trial, the facts of the case will be presented to a jury.

“And then clearly, names are coming out, people have to testify,” Sparr said. “There's no way around it at that point.”

Background to constitutional amendment

Marsy’s Law has been approved by voters in ballot measures in at least 14 states, though it has been overturned in Montana and Pennsylvania over questions of its conflict with the U.S. Constitution.

The movement to adopt the constitutional amendment was self-funded by tech billionaire Henry Nicholas III. The law is named after his sister who was killed by an ex-boyfriend in the early 1980s.

In 2020 Wisconsin became the latest state to enshrine the law in its constitution after a $1.5 million legislative lobbying effort that at one point employed five registered lobbyists.

Marsy’s Law for Wisconsin — which was funded entirely by Nicholas’ national organization — spent nearly $4.5 million to sway voters.

A legal challenge claimed that the 64-word ballot question was too simplistic. When the group won in Dane County Circuit Court, Wisconsin Justice Initiative publicly urged Kaul not to defend the amendment.

“They could have decided to not appeal and just let Marsy’s Law fall — and they chose not to,” she said. “So Josh Kaul’s office chose to fight for the validity of the amendment.”

The Wisconsin Supreme Court voted 6-1 to uphold Marsy’s Law.

Legal challenges to Marsy’s Law continue

There is another challenge pending in the Court of Appeals, including a contempt order against a prosecutor who allowed both victims to hear each other’s testimony in a battery case. Courts routinely sequester witnesses so their testimony can’t be influenced by others. But that conflicts with Marsy’s Law, which guarantees victims the right to attend every hearing and stage of a trial.

Marsy’s Law for Wisconsin’s state director Nela Kalpic said since 2020 there have been multiple incidents where law enforcement officers have been named after using deadly force. She said she was not familiar with the Winnebago County examples but acknowledged the need for clarification in some cases.

“It is appropriate going forward that state and local policymakers and courts work out the application of the law over time,” she said.

For critics like Fallone, the constitutional amendment that “sailed through with minimal scrutiny” has left just these sorts of complexities for the criminal justice system to untangle. It won’t be easy.

“Once you amend the Constitution to put something in there,” he said, “you kind of have to live with it.”

The nonprofit Wisconsin Watch (www.WisconsinWatch.org) collaborates with WPR, PBS Wisconsin, other news media and the University of Wisconsin-Madison School of Journalism and Mass Communication. All works created, published, posted or disseminated by Wisconsin Watch do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.

This article originally appeared on Milwaukee Journal Sentinel: Oshkosh police cite ‘Marsy’s Law’ to hide officers' names in shootings