In a decision that could have sweeping implications in police use-of-force cases, a Florida appellate court has ruled that officers who kill citizens can hide their identity under a measure designed to protect crime victims from violence and harassment.
A three-judge panel of the 1st District Court of Appeal on Tuesday unanimously reversed a lower court decision that had denied on-duty officers protections under Marsy's Law, a provision that has been adopted in at least 12 states, including Florida.
In October, a USA TODAY/ProPublica investigation showed that as police across the nation faced scrutiny over accusations of brutality and systemic racism, law enforcement agencies – particularly in Florida – increasingly were co-opting Marsy's Law to shield the identifies of officers accused of violence.
Florida agencies have used it to hide the names of officers who sent a 15-year-old boy to the hospital, officers who fired bullets into moving cars and officers who released their K9 dogs on drunk and mentally ill people, the news organizations found.
Marsy’s Law passed first in California in 2008. In November, voters approved the measure in Kentucky, a state still reeling from the botched raid that killed Breonna Taylor, a 26-year-old Black medical worker in Louisville. Had it been in place in March 2020, the public may not have learned the identities of the three white officers who opened fire.
Marsy's Law got on Florida’s ballot in 2018 after being introduced as a constitutional amendment by a sheriff and revised with the help of two statewide law enforcement associations. USA TODAY and ProPublica collected information from dozens of Florida police agencies and reviewed thousands of pages of police reports to determine that at least half of Florida's 30 largest police agencies applied the law to on-duty officers.
The agencies said officers were crime victims and hid their names when the officers said someone physically resisted arrest or attacked them, leading the officer to use force against them. The agencies rarely redacted the names of the suspects on whom they used force, including juveniles and mentally ill people in the thick of a crisis.
Officers sustained no injuries in at least half of the incidents for which they claimed victims’ rights, records show. 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.
In July 2020, Leon Circuit Judge Charles Dodson ruled that on-duty officers are not afforded protection under Marsy's Law. The ruling sprang from the explosive case of Tony McDade, a Black transgender man who was shot and killed last May 27 by an officer with the Tallahassee Police Department. McDade was killed moments after fatally stabbing the son of a next-door neighbor.
Tuesday's decision was a legal defeat for the city, which planned to publicly identify the officer who killed McDade, and the Tallahassee Democrat and other news organizations that intervened to force release of the officer’s name.
“Today’s decision was an unfortunate setback for police accountability," said Mark Caramanica, a Tampa lawyer representing news organizations. "We respectfully disagree with the court’s reasoning and are considering our options.”
After McDade’s death, the Florida Police Benevolent Association sued the city of Tallahassee to block release of the officer's name, along with the name of another officer involved in a separate case.
The police union argued that the officers were themselves victims of aggravated assaults by the armed suspects they killed and thus qualified for anonymity under Marsy’s Law. The appellate court agreed in its 13-page ruling.
“We reverse the trial court’s order directing the city to disclose public records that would reveal the identities of the two officers,” said the opinion by judges Robert Long, Timothy Osterhaus and Lori Rowe.
“And we reverse the trial court’s judgment declaring that protections afforded crime victims under (Marsy’s Law) are not available to law enforcement officers.”
City undecided on whether to appeal
City Attorney Cassandra Jackson said the city respects the appellate court's deliberations and decision.
"The court has determined that police officers, while acting within the scope of their public duties, are afforded the protections of Marsy's Law as crime victims," she wrote. "The city will carefully review the courts decision in evaluating whether to appeal."
Mutaqee Akbar, a lawyer representing McDade's family, said the decision runs contrary to his own position. He encouraged citizens to work with lawmakers to change Marsy's Law so that police are carved out from its protections.
"Transparency is so important," he said. "I believe the PBA is hiding behind Marsy's Law in order to not be transparent."
Stephen Webster, attorney for the Police Benevolent Association, praised the decision, saying police shouldn't be excluded from Marsy's Law "simply because they choose to patrol our streets and keep us safe."
"Both of these officers were threatened with deadly force," he said, "and they had to make the horrible decision to use deadly force in defense of themselves."
'Transparency is everything'
Dodson, who retired from the bench in January, wrote in his July ruling that police have a "very difficult and important job" but are not beyond public scrutiny of their on-duty actions. He ordered the city to release the officers' names but stayed his own decision in anticipation of the police union's appeal.
"The public has a vital right to evaluate the conduct of our law enforcement officers, who are empowered to arrest people and use deadly force," Dodson wrote. "For this court to hold that on-duty law enforcement officers may use Marsy's Law to prevent the disclosure of their names would provide them with a protection not intended by the express purpose of that law."
The appellate panel wrote that its reading of Marsy's Law does not mean that the public can't hold law enforcement accountable. The judges noted that officers who are criminally charged for their conduct would forfeit their Marsy's Law rights.
"Maintaining confidential information about a law enforcement officer who is a crime victim would not halt an internal affairs investigation nor impede any grand jury proceedings," they wrote. "Nor would it prevent a state attorney from reviewing the facts and considering whether the officer was a victim."
Pamela Marsh, executive director of the First Amendment Foundation in Tallahassee, expressed disappointment in the decision, noting in a news release that other states are requiring disclosure of records on police shootings and excessive force.
"But Florida is moving in the opposite direction," she said. "This ruling can only undermine the public's belief that law enforcement will ever be held accountable for serious misconduct. Transparency is everything when it comes to trust."
Contact Jeff Burlew at firstname.lastname@example.org or follow @JeffBurlew on Twitter.
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This article originally appeared on Tallahassee Democrat: Florida court rules Marsy's Law privacy also shields police officers