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A Law Intended to Protect Crime Victims Is Being Used to Shield the Identities of Police Officers

The vague wording of Marsy's Laws allows law enforcement to classify themselves as "victims" after shooting suspects.

Police pointing gunsWanida Tubtawee / Dreamstime.comA highway patrol officer in South Dakota is using a law intended to protect the identity of crime victims to keep his or her name from being publicly released after shooting a suspect.

So-called "Marsy's Laws" are victim's rights regulations that, among other things, allow a crime victim to prohibit the release of information or records that could used to "locate or harass the victim or the victim's family." The first Marsy's Law was passed in California and enshrined in its state constitution. It has since spread to Illinois, Ohio, Montana, North Dakota, and South Dakota.

What on earth does a victim's rights law have to do with a police officer demanding to conceal his identity from the public? According to the Rapid City Journal, the officer in question shot 21-year-old Kuong Gatlauk following a confrontation during a traffic stop. According to the police report, Gatlauk made statements intending some sort of self-harm and fled from a police vehicle. In a confrontation, he apparently threw a beer can at the trooper and then tackled the trooper and tried to steal the trooper's gun, according to this report. The trooper was able to keep his gun and shot the suspect twice.

Because Gatlauk was subsequent charged with assaulting the trooper, the trooper is claiming the right under Marsy's Law to have his or her name kept confidential, even though this action happened in the course of public police work and much of the records involved are public records. The state's attorney general has agreed. South Dakota's Marsy's Law does not have any sort of exceptions for law enforcement.

As the Rapid City Journal notes, this is not the first time police officers have used the law to try to shield their names from disclosure. Several officers in North Dakota also used their version of Marsy's Law to conceal their names during the investigation of a police shooting.

The American Civil Liberties Union has been critical of Marsy's Laws, partly because of their vagueness and partly because they can jeopardize defendants' due process rights. In May, Jeanne Hruska, the policy director of the ACLU's New Hampshire chapter, warned:

Would it prevent the release of names or crime reports? Would it reduce the amount of information that press outlets are allowed to provide to the public regarding crimes? Could it give a victim and their attorney control over the limits of a victim's testimony at trial?

Too much of the Marsy's Law narrative is abstract, obscuring what the implications would be for our legal system. The multi-million dollar campaign that comes with Marsy's Law focuses on the intent of the law. But, well-meaning intent does not cure bad language. The concern over ambiguous language and unintended consequences are particularly acute because, unlike a statute, if problems arise with a constitutional experiment, legislators' hands are effectively tied. To change even a few words requires another constitutional amendment.

In South Dakota, they had to do exactly that, to clarify the law to make it clear that police could disclose important information to get help from the public and to limit who was actually covered by the definition of a "crime victim."

In California, media outlets had to take a lawsuit all the way up to the state Supreme Court just to establish that law enforcement agencies couldn't simply conceal the names of officers who had been involved in shootings. And they recently passed a law making public the records of police officers in situtations involving deadly force and certain crimes.

Voters in six states—Florida, Kentucky, Georgia, Nevada, North Carolina, and Oklahoma—will be considering Marsy's Law amendments to their states' constitutions in November. They should keep these (likely) unintended outcomes in mind.

Photo Credit: Wanida Tubtawee / Dreamstime.com

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  • Just Say'n||

    "Treat police like any criminal defendant", but also "don't treat police like any criminal defendant".

    Pretty dumb.

    This law is the problem, not that the law is being equally enforced.

  • Just Say'n||

    Oh, I misunderstood this whole issue

  • hpearce||

    So when is Reason and Nick Gillespie going to write an article on open borders ?
    Is his policy to let these caravans in by SOCIALIZING public property for U.S. citizens to be public for the world ?

  • Juice||

    Is his policy to let these caravans in by SOCIALIZING public property for U.S. citizens to be public for the world ?

    It appears that you prefer national socialism to international socialism?

  • Remember to keep it all polit||

    Now we know how California cops will get around the new laws you mentioned which were intended (and I use that word loosely!) to make sure cop cam videos are released to the public.

  • Remember to keep it all polit||

    well-meaning intent does not cure bad language

    This is rich, coming from a political pucker-up organization like the ACLU.

  • John||

    As long as the department is open about what happened, why does the public necessarily need to know the person's name? What is the point of know that other than so mobs can go harass the guy? If they are withholding the name as a means of keeping the public from knowing what happened, then that is a problem. But I don't think you have to know the name to know what happened. Sure, the defendent has to know the name. but that doesn't mean the public at large does.

  • Exsqueezeyou||

    "...why does the public necessarily need to know the person's name?

    Answer: Because We the People are the officer's master and the officer is the servant.

    "....But I don't think you have to know the name to know what happened."

    We the People mostly surely do and should.

    It is incumbent upon We the People to watch the watchers as a moral people who should be concerned about how our fellow citizens' (emphasis on citizen) liberty and rights are being respected. And, yes, I do "...have to know the name to know what happened." Was it well-known "Officer Douchebag" who has a reputation for violating the rights of citizens or an officer who does not? We need to know who, by name, "to know what happened." By extension of your rationale, the cops should just wear masks like they do in 3rd world shit holes.

    I would argue that is true for sex victims as well. What if it is a supposed victim that has a history of falsely accusing people? If the name is made public, it provides greater opportunity for witnesses to come forward to speak to the integrity/history of the victim. Are we just supposed to believe that no one lies about sex crimes or the risk to an alleged victim outweighs an accused person's right to due process to keep their liberty?

  • John||

    When we the people start murdering cops whenever there is any controversy and then no one is a cop anymore, where will we be then? In a world of trouble.

  • Remember to keep it all polit||

    Right, so the world can go to hell in a cop handbasket and you're all up with that. But if a civilian turns the tables and murders a criminal cop, we're doomed?

  • Sometimes a Great Notion||

    but that doesn't mean the public at large does.

    What if within the public at large there is an individual with some information about the victim/officer that could be beneficial to the defense but doesn't make that connection because the victim/officer's name was withheld?

  • markm23||

    The public needs to know the cop's name because, while half of cops never use their gun in their entire career, a few cops are involved in shootings more than once, and also an unusual number of alleged excessive force incidents. It seems like some of them are either quite poor at conflict resolution or have anger management issues. By hiding their names, the department also hides whether they are keeping bad cops on the payroll.

  • darkflame||

    So, is it just the officer's word that the situation went down how it did? Cause if no bodycams/surveillance cameras/other cops can back him on this, then I'm not sure victim is the right word... maybe suspect

  • Robert||

    Victim or victor?

  • Eddy||

    "Voters in six states—Florida, Kentucky, Georgia, Nevada, North Carolina, and Oklahoma—will be considering Marsy's Law amendments to their states' constitutions in November. They should keep these (likely) unintended outcomes in mind."

    Which of these amendments has language relevant to the concerns raised in the post?

  • Diane Reynolds (Paul.)||

    I'm honestly curious-- this isn't snark, is this one of these laws or types of laws we libertarians applauded? Because if it is/was, there's a lesson to be learned here.

  • Fist of Etiquette||

    South Dakota's Marsy's Law does not have any sort of exceptions for law enforcement.

    Usually that's a positive.

  • Utility Maximizer||

    Yet another example of "laws named after victims are bad".

  • Eddy||

    You're definitely not going to like my "Betty and Her Doe-Eyed Puppy Antiterrorism Law."

  • cravinbob||

    If the officer has nothing to hide then the officer has nothing to worry about.

    Does that sound familiar to anyone? One of the ways officers are taught to trick a citizen out of their Constitutional Rights.

    Police really do not make me feel safer especially when they fear the law and the lawyers who also know all the tricks OR that they seem to enjoy immunity, anonymity and are given a pass in every situation they control.

  • AD-RtR/OS!||

    Aren't we all victims now?

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