A Florida appeals court panel ruled Tuesday that a state law intended to protect victims of crime can also be invoked by police officers to keep their names from being released to the public when they use deadly force on the job.
The ruling is part of a recent trend in which some police officers and their unions use "Marsy's Law" to conceal information from the public, particularly when there are questions or criticisms about whether the use of force was justified. Marsy's Laws, which are voter-passed initiatives that began in California and have spread to nine other states, aim to give crime victims more say in court proceedings and shield their identities from public disclosure.
The laws, as written, are vague and have been subjected to significant criticism by organizations like the American Civil Liberties Union for undermining the constitutional rights of defendants and treating them with the presumption of guilt in criminal court cases.
Then there's the matter of who actually counts as a "victim," and that's where the police secrecy comes in. Police officers are declaring themselves to be victims of crimes when they are involved in violent incidents on the job. They then claim that Marsy's Law allows them to keep their identities secret.
In Tallahassee in May, a police officer shot and killed Tony McDade, 38, in a confrontation at an apartment complex. McDade was a suspect in the fatal stabbing of Malik Jackson, 21. McDade was also a trans man, and very early coverage centered around confusion about the proper way to identify him and whether this was an example of police quickly turning to force when dealing with minorities. Tallahassee police had fatally shot three men in two months, and McDade was killed just days after George Floyd died in Minneapolis.
Subsequent investigation and reporting would show that McDade had recorded a video the day before the incident and posted on Facebook that he planned to pull out a gun if confronted by cops, knowing that they would shoot him. Police said that McDade did indeed pull a gun on them during the encounter and that they found a bloody knife on the scene. A grand jury in September ruled that the use of force against McDade was justified. The City of Tallahassee then released body camera footage showing McDade pulling out and pointing a gun before police killed him.
Media outlets requested the name of the officer who shot McDade. This is a normal request—police officers are public officials and their actions as law enforcement officers should be public. But the officer, represented by the Florida Police Benevolent Association, argued that the officer is a victim of a crime and therefore can demand under Marsy's Law that his name be withheld as confidential or privileged information.
The original Marsy's Law was not meant to hide police names, but its vague categorization of who counts as a "victim" may just allow for it. A Florida circuit court judge in July rejected the argument, ruling that Marsy's Law does not apply to police officers who are on duty and that Florida's open records laws require the release of the officer's name. But on Tuesday, a three-judge panel from Florida's First District Court of Appeal unanimously overruled him. The 13-page decision, written by Judge Lori Rowe, reads in part:
A police officer meets the definition of a crime victim under article I, section 16 when a crime suspect threatens the officer with deadly force, placing the officer in fear for his life. That the officer acts in self-defense to that threat does not defeat the officer's status as a crime victim. And thus as a crime victim, such an officer has the right to keep confidential "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."
Later in the ruling, Rowe notes that judges are not supposed to adjust what the law should say, but rather what the plain text actually means. She even references the Supreme Court's Bostock v. Clayton decision from last year that determined that the federal Civil Rights Act's ban on discrimination on the basis of "sex" also includes discrimination on the basis of sexual orientation and gender identity. She adds, "[I]f the people of Florida wish to exclude law enforcement officers or other government employees from the protections of article I, section 16, multiple avenues for amending or revising the constitution are available."
She's not wrong there, and that's why civil rights groups have warned against the passage of these vague laws in the first place. It seems likely that the officer in question here acted appropriately when he shot McDade. But by making it possible to legally conceal information about police shootings, there is increased potential for law enforcement agencies to hide evidence of misconduct.