from the flow-my-tears,-the-policeman-said dept
No one’s more willing to abuse a law than a cop. They pretend they don’t understand the complexities of laws when it suits them. But they’re always right on top of any law that might protect them from the consequences of their own actions.
Enter the somewhat infamous “Marsy’s Laws” that have been passed in several states around the nation. These laws give more rights to crime victims, including (in certain cases) forbidding the publication of the names of crime victims.
It’s that part of these laws that has been leveraged by law enforcement officers accused of misconduct or criminal activity of their own. As long as they can claim they were “victims” of crime, journalists (and others) are blocked from publishing their names.
It happened in Florida in 2021. Two officers who killed someone invoked the law (via their union reps) to shield their identities, claiming they were actually the victims here, even though both officers are still alive. According to these officers, they were victims of assault by the person they killed. As such — and according to Florida’s version of Marsy’s Law — they were allowed to shield their names from the public.
This resulted in an injunction being secured by the officers preventing the publication of their names. The Florida Court of Appeals reversed a lower court decision that said the law was not designed to shield officers acting in their official capacity, even if they were actually victims of actual crimes. Fortunately, that injunction was dissolved a week later by a judge less inclined to believe a victim’s rights law was designed to protect officers suspected of deploying excessive force.
Now, as CBS News reports (but without including a copy of the decision), law enforcement officers are no longer permitted to invoke the state’s victims’ rights law to shield their identities from the general public.
A 2018 constitutional amendment designed to bolster victims’ rights “does not explicitly” shield the identities of police officers – or any other people – from disclosure, the Florida Supreme Court ruled in a major decision on Thursday.
The unanimous opinion, authored by Justice John Couriel, came in a dispute over the identities of two Tallahassee police officers involved in separate use-of-force incidents in which they were threatened.
There is no categorical identity shield in the law, according to the state’s top court. So, this decision [PDF] will affect regular people, as well as the law enforcement officers hoping to retain their anonymity. In this case, it wasn’t reporters seeking the officers’ names (although they were) targeted by this lawsuit. The officers (who were involved in separate deadly force incidents) sought to block the City of Tallahassee from releasing their names.
The court notes it’s not here to decide whether or not such a right to anonymity should exist or who it should apply to. It’s here to determine what the law actually says. And the law cited by these officers doesn’t say what they think it does.
Marsy’s Law guarantees to no victim—police officer or otherwise— the categorical right to withhold his or her name from disclosure. No such right is enumerated in the text of article I, section 16(b) of the Florida Constitution. Nor, as a matter of structure, would such a right readily fit with two other guarantees contained in article I: the right expressed in section 16(a) of the criminally accused “to confront at trial adverse witnesses,” and the right found in section 24(a) of every person to inspect or copy public records.
That suggests sending the law back for a rewrite to create this categorical right (one that could be used by police officers who’ve killed someone) will only create more friction between the victims’ rights law and other rights established by the same state constitution.
The key here is what the constitutional amendment actually says. And what it says is nothing about a categorical protection for crime victims’ names.
Marsy’s Law speaks only to the right of victims to “prevent the disclosure of information or records that could be used to locate or harass” them or their families. Art. I, § 16(b)(5), Fla. Const. One’s name, standing alone, is not that kind of information or record; it communicates nothing about where the individual can be found and bothered.
To be sure, a name is a good starting point if someone wants to “locate or harass” someone. But publishing a name alone is not a violation of the victims’ rights law. Publishing other connective information would be. And there are other laws on the books that deal with harassment, so there’s no reason to interpret the amendment as superseding other rights already granted to Florida residents.
The court goes on to note laws can be established that shield people’s identities, pointing to various protections involving medical records. If the legislature meant to expressly prevent the publication of crime victims’ names alone, it certainly could have done so. (Not that it necessarily would have survived a constitutional challenge.) It didn’t do that here. And because it didn’t, these cops (along with crime victims who aren’t protected by the extra rights granted to law enforcement officers) cannot prevent the mere publication of their names.
The lower court’s ruling is reversed. Cops can’t use a law meant to protect the most vulnerable members of society to shield themselves from public accountability. If they want to keep their names out of the news, they should perhaps exercise a bit more discretion when deploying deadly force.