Judge Weighs How Far Marcy’s Law Protecting Victims May Go to Shield Cops’ Identities

The arguments came in a lawsuit filed by the Florida Police Benevolent Association asserting that the constitutional amendment known as “Marsy’s Law” applies to Tallahassee police officers “John Doe 1” and “John Doe 2.”

While the case was filed on behalf of the two officers against the city, it has exposed a broader conflict between two Florida constitutional amendments: Marsy’s Law and a decades-old government-in-the-sunshine amendment that established one of the nation’s broadest public-records laws.

Leon County Circuit Judge Charles Dodson repeatedly referred to the potential conflict as he questioned lawyers on both sides during Monday’s hearing.

“I’m trying to balance public-records law with Marsy’s Law and protections,” Dodson told Stephen Webster, who represents the PBA. “How do I balance, apply Marsy’s Law to law enforcement officers with the public’s right to access public records to make sure that we’ve got governmental transparency and public accountability?”

Webster pointed out that Florida’s public-records laws contain numerous exemptions, including one for racehorses.

Redacting the name of police officers “is not going to in any way or any material fashion inhibit the public’s ability to evaluate … these uses of force and to determine whether or not they were appropriate in the public’s mind,” the police union’s lawyer said.

Grand juries and police departments’ internal-affairs units still will scrutinize officers’ actions, Webster said.

The PBA contends that Officer “John Doe 2” shot a black transgender suspect in self-defense on May 27. Because the police officer was the victim of an aggravated assault with a deadly weapon in the incident involving Natosha “Tony” McDade, the union says the officer has the right to invoke the privacy privilege provided by Marsy’s Law.

The union also alleged that the city changed its policy for shielding police officers’ identities following the death of George Floyd, a 46-year old black man who died while former Minneapolis police officer Derek Chauvin kneeled on his neck for nearly nine minutes. Floyd’s death has sparked protests against police brutality and racial inequality throughout the country.

The PBA’s challenge pointed to a May 19 incident where another Tallahassee police officer, identified as Officer “John Doe 1,” used deadly force against a suspect who charged at him with a knife. The union alleged the officer was allowed to invoke Marsy’s Law without a problem.

The city, however, denies that it changed its policy and maintains that the Tallahassee Police Department had developed its own procedure without city officials’ approval.

On Monday, Assistant City Attorney Hannah Monroe told Dodson that Marsy’s Law was designed to protect “citizen victims,” especially during prosecutorial proceedings.

The judge pressed her about whether “Officer John Doe 2” would have been the victim of a crime if McDade, who allegedly pointed a gun at the officer, had shot the Tallahassee policeman.

Doe “was met with deadly force and thus justified in his use of deadly force,” Monroe said.

“We would not assert that that makes him a victim of a crime,” she added. “The city’s position is that that officer would still not fall under Marsy’s Law because he’s not a private citizen. He’s a public official acting in a public capacity.”

Allowing Marsy’s Law to apply to law enforcement officers “does create a problematic effect” because “there can be no public oversight of that officer’s conduct,” Monroe said.

The First Amendment Foundation, the Florida Press Association and a number of media outlets have intervened in the lawsuit, siding with the city. (Disclosure: The News Service of Florida is a member of the First Amendment Foundation and the Florida Press Association but has not been involved in the lawsuit.)

The victims’ rights enshrined in Marsy’s Law “were enacted with a backdrop of case law that understands that the public has a First Amendment right to observe and report on the actions of police officers,” Mark Caramanica, who represents the media organizations, argued Monday.

Keeping police officers’ names — which are displayed on their badges and uniforms and through the use of body cameras — hidden would “undercut” Florida’s public-records laws, he said.

“Officers are qualitatively different,” Caramanica told the judge. “There’s simply no societal expectation that the identity of an officer is shielded from the public.”

The lawsuit, which arose over the death of a citizen, is “a core case” illustrating Florida’s Sunshine laws, the lawyer said.

“What we’re talking about here is oversight of the police actions in using deadly force and the ability of the public to assert oversight there. Marsy’s Law is not a mechanism to secrete that information away and stifle public debate,” Caramanica argued.

Dodson appeared unconvinced by either side that one constitutional right trumped the other. Both Marsy’s Law and the Sunshine Law are in the state Constitution, the judge noted.

“And I don’t think that I can say that one outweighs the other. They need to be read so that they both make sense,” he said. “I think all of us here today are attempting to make sure that the Constitution makes sense and that these constitution revisions are read so that they’re consistent with each other. That’s the great difficulty I have in this case.”

Dodson did not say how he would rule but said he intends to issue an opinion quickly. He asked lawyers to submit proposed orders to the court by 5 p.m. Friday, adding that he intends to write his own.

The judge also noted that Marsy’s Law does not specifically prohibit the release of victims’ names, but gives victims “the right to prevent 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.”

Florida law shields law enforcement officers’ addresses and phone numbers from the public, the judge pointed out.

But in “an age where data mining is rampant,” the public-records exemption is “in many respects … illusory,” Webster said.

“Their information is still easily attainable in this modern age,” he said.

–Dara Kam, News Service of Florida