Court Voids Injunction Blocking Newspaper from Publishing Erroneously Released Names of Police in Shooting

The Florida "Marsy's Law," which protects crime victims, doesn't affect the analysis, even if police officers are treated as victims of the person they shot (who they say was threatening them with a knife).

From Sarasota County Sheriff's Office v. Sarasota Herald-Tribune Co., decided June 27 by Judge Charles E. Williams (Fla. Cir. Ct.), the brief factual background (some periods between sentences added in these quotes, since the order apparently inadvertently omitted them):

On April 1, 2022, deputies of the Sarasota County Sheriff's Office …, including Deputy Doe #1 and Deputy Doe #2, arrived at an apartment to serve a court-ordered writ of possession for the removal of Jeremiah Evans from the apartment. After the deputies' non-forcible entry, Mr. Evans exhibited a knife and refused to leave. Deputies commanded Mr. Evans to drop the knife, but he refused to do so Deputies then "tased" Mr. Evans, but he stood and advanced toward the deputies while holding the knife in front of his body in a threatening manner. Mr. Evans approached to within eight feet of the deputies and Deputy Doe #2 discharged a firearm, striking him. Medical help was summoned, but Mr. Evans died from the gunshot wound.

On June 1, a Sarasota Herald Tribune reporter (Melissa Perez-Carrillo) made a public records request for a copy of a prosecutor's letter about the incident, and the prosecutor's office released the letter with the officers' last names unredacted. On June 7, Perez-Carrillo asked for the first name, and the Sheriff's office then concluded that the "last name was released in error because the deputy is a crime victim under Marsy's Law entitled to confidentiality." The Sheriff's Office then sought and got a temporary injunction (from Judge Charles E. Roberts), which was issued on June 10 and barred the newspaper and the reporter "from publishing and/or otherwise further disseminating the personal information of Deputy Doe #1 or Deputy Doe #2 including but not limited to their names."

Unconstitutional, holds Judge Williams:

For purposes of determining Respondents' motion to dissolve the temporary injunction, the Court need not determine the constitutionality of Marsy's Law nor whether Marsy's Law is applicable to Deputy Doe #1 and Deputy Doe #2. It is enough that Petitioners claim the deputies are crime victims and base their Petition on that claim. Instead, the central issue at this point of the case is the legal effect of the State Attorney's release of the unredacted Letter pursuant to a public records request by the Respondents. Through other public records information, and legal journalistic methods and deduction, the full names of both deputies were gleaned by the Respondents….

Following passage of Amendment 6 in November 2018, Marsy's Law became part of the Florida Constitution, creating a Bill of Rights for crime victims and their families…. Marsy's Law, in part, requires that the following rights be given to every victim beginning at the time of his or her victimization.

(2) The right to be free from intimidation, harassment, and abuse.

(5) 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.

Under the unique facts in this case, particularly the fact that the State Attorney, albeit mistakenly, divulged identifying information of Deputy Doe #1 and Deputy Doe #2 to [the newspaper and the reporter] who, by lawful journalistic means then ascertained the identities of the deputies, the Court finds that the temporary injunction entered in this case is an unconstitutional prior restraint that must be dissolved.

The Court's determination is controlled by Florida Star v. B.J.F. (1989) and Gawker Media v. Bollea (Fla. Ct. App. 2014). Under facts strikingly similar to the present case, the U.S. Supreme Court in Florida Star reversed a civil judgment against a newspaper for publishing the full name of a rape victim in violation of a statute. The court reasoned that the interest in protecting the privacy and safety of sexual assault victims and in encouraging them to report offenses without fear of exposure, although highly significant, did not outweigh the newspaper's First amendment right to publish truthful information about a matter of public concern that was not obtained through the newspaper's unlawful conduct. It is noteworthy that the court in Florida Star invalidated the less-intrusive, post-publication imposition of civil liability rather than a prior restraint on publication, which presents an even greater burden for the proponent of a temporary injunction. That is, if the state's interests are not compelling enough to justify an after-the-fact restraint, they are certainly not sufficient to justify a prior restraint.

In the present case, the fatal shooting of Mr. Evans in the course of the deputies' service of a writ of possession is unquestionably a matter of public concern. The last names of the deputies were mistakenly released in an unredacted version of the State Attorney's letter to the Sheriff. As in Florida Star and Gawker Media, there is no evidence that the Respondents obtained the information through any unlawful conduct of their own. Further, the record before the Court is insufficient to show that the confidentiality provision of Marsy's Law furthers a state interest "of the highest order" as required by Florida Star and cases cited therein.

The Colorado Supreme Court's decision in People v. Bryant (2004) does not alter the court's conclusion that the present temporary injunctive order is an unconstitutional prior restraint. Bryant involved the policy supporting Colorado's rape shield statute as compared to the First Amendment interest in publishing details of a rape victim's sexual history that mistakenly came into possession of the media. The court construed Florida Star as identifying the state's interest in protecting the identity of a victim of a sexual offense as "being of the highest order" and then analyzed how a court order redacting portions of the released transcripts could be narrowly tailored to render the prior restraint constitutional. But Florida Star did not identify the state's interest in protecting the identity of a victim of a sexual offense as an interest "of the highest order." Bryant depends upon aspects of Colorado law and a misinterpretation of Florida Star. It does not control the outcome of the present case.

Whether Marsy's Law generally protects police officers when they are victims of on-the-job assaults and threats (and thus prohibits government officials from releasing the officers' names in the first place) is now before the Florida Supreme Court, reviewing the appellate decision in Fla. Police Benevolent Ass'n, Inc. v. City of Tallahassee.