Right of Access

Names of Police Officers Involved in Defensive Shooting of Suspects Aren't Public Records

So holds the Florida Court of Appeal, interpreting the Florida Constitution's crime victims' rights provision. ("If a prosecutor determines that the officer was  not a victim and instead charges the officer for his conduct," the names would be released, but no such determination was made here.)

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From Florida Police Benevolent Ass'n, Inc. v. City of Tallahassee, decided yesterday by the Florida First District Court of Appeal (in an opinion by Judge Lori Rowe, joined by Judges Timothy Osterhaus and Robert Long, Jr.) (emphasis in original) [UPDATE: Scott Shackford (Reason) also has thoughts on this]:

In two separate encounters, crime suspects threatened Tallahassee police officers with deadly force. Faced with the imminent threat of harm, the officers responded in kind, resulting in fatalities. Following the encounters, the City of Tallahassee revealed its intent to disclose the identities of the police officers to the public.

The officers and their registered bargaining representative, the Florida Police Benevolent Association, Inc. (collectively, Appellants), opposed public disclosure of the officers' identities and sought a declaration from the trial court that the officers were entitled to the protections granted crime victims under article I, section 16 of the Florida Constitution. Appellants also asked the court to enjoin the City from disclosing any personal information that could be used to identify or locate the officers.

But the trial court determined that the protections afforded crime victims under article I, section 16 were unavailable to law enforcement officers even when a crime suspect threatened an officer with deadly force. And the court found that even if the officers were crime victims, their names were not entitled to confidential treatment. Appellants challenge the trial court's ruling. We reverse.

[I.] Background

The Tallahassee Police Department employs two police officers who were involved in separate encounters with crime suspects that ended with fatalities. The first encounter occurred after the police officer responded to a report of an aggravated battery. The battery victim reported that the suspect was armed with knives, which he brandished during the attack on the victim. When the officer arrived on the scene, he saw the suspect hiding behind bushes. The suspect, who was standing between ten and fifteen feet away from the officer, threatened to kill the officer, waved a large hunting-style knife at the officer, and then rushed toward him. In response to the imminent threat, the officer shot the suspect while trying to retreat. The suspect died from the gunshot wounds.

The second encounter occurred when the police officer responded to a report of a stabbing in which the suspect fled the scene with a gun and a knife. The officer encountered the suspect leaning into the passenger window of a parked SUV. A woman then leapt from the SUV toward another police vehicle, pleading for help. Next, the suspect moved toward the officer, assumed a shooting stance, and pointed a gun at the officer. Fearing for his life, the officer exited his vehicle and shot the suspect. The suspect continued to reach for his gun. Right after the shooting, bystanders began threatening the officer, causing him to fear for his safety. The suspect later died from the gunshot wounds….

[II.] Analysis …

Article I, section 24(a) [of the Florida Constitution] describes the broad right to inspect or copy public records in Florida:

Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except with respect to records exempted under this section or specifically made confidential by this Constitution.

By its express terms, article I, section 24(a) does not provide that all public records are subject to disclosure. Rather, the text acknowledges the right of the people of Florida to amend their constitution to grant confidentiality for public records ordinarily subject to disclosure. And article I, section 24(c) allows the Legislature, by a two-thirds vote of each house, to exempt public records from the disclosure requirements under article I, section 24(a).

The express purpose of Article I, section 16 is "to preserve and protect" certain rights of crime victims. A crime victim is "a person who suffers direct or threatened physical, psychological, or financial harm as a result of the commission or attempted commission of a crime or delinquent act or against whom the crime or delinquent act is committed." 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."

Even so, the trial court determined that extending the protections for crime victims under article I, section 16 to law enforcement officers threatened with harm by crime suspects would thwart the purpose of article I, section 24(a) by shielding law enforcement officers from public scrutiny of their official actions. The trial court found that public records related to the actions of a law enforcement officer acting in his official capacity could not be treated as confidential under article I, section 16 when the officer is a crime victim. But in reaching this conclusion, the trial court carved out an exception from article I, section 16 for law enforcement officers—one that would apply equally to all of Florida's state and local government employees, numbering over one million….

Nothing in article I, section 16 excludes law enforcement officers—or other government employees—from the protections granted crime victims. And no language in either article I, section 16 or article I, section 24(a) suggests that public records related to government employees ordinarily subject to disclosure are not entitled to confidential treatment under article I, section 16 when a government employee becomes a crime victim.

This does not mean that the public cannot hold law enforcement officers accountable for any misconduct. Maintaining confidential information about a law enforcement officer who is a crime victim would not halt an internal affairs investigation nor impede any grand jury proceedings. Nor would it prevent a state attorney from reviewing the facts and considering whether the officer was a victim. If a prosecutor determines that the officer was not a victim and instead charges the officer for his conduct, then the officer would forfeit the protections under article I, section 16. See Art. I, § 16(e), Fla. Const. (excluding an accused from the definition of a victim)….

[H]owever compelling the public policy considerations may be in favoring broad public records disclosure and the ability of the public to access records of the machinery of government, it is not the province of the judiciary to read into the language of the constitutional text anything not included or to limit the text in a manner not supported by its plain language. "Our role is not to make or amend the law." Rather, if 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….

The trial court found that even if the law enforcement officers were crime victims, they were not entitled to the protections under article I, section 16 for two reasons. First, a criminal proceeding is required before the protections of article I, section 16 apply…. [But] article I, section 16(b) provid[es] that "every victim is entitled to the enumerated rights, beginning at the time of his or her victimization." See also L.T. v. State (Fla. 1st DCA 2020). And nothing in article I, section 16 says that a criminal proceeding needs to commence before a crime victim is entitled to the protections offered under the law….

Second, the trial court determined that the officers' names were not entitled to confidential treatment under article I, section 16(b)(5)[, which states,] … "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."

Contrary to the trial court's conclusion, "information … that could be used to locate or harass the victim or the victim's family" includes records that could reveal the victim's name or identity. This construction of article I, section 16 aligns with other provisions of Florida law that treat as confidential records that could reveal a victim's identity. For example, the Florida Legislature exempted from disclosure public records that could reveal the names of certain crime victims…. With multiple online search resources available to seek out information about individuals when the person's name is known, a crime victim's name is the key that opens the door to locating the victim.

Thanks to Prof. Eric Freedman (Hofstra) for the pointer.

 

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  1. What utter nonsense.

    These are the kinds of bullshit rulings that a state uses to avoid any accountability by the public servants.

    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.

    So every time the betwetting cops shoot someone they automatically become crime victims? Since every cop who has shot a suspect repeat the same standard line “I was in fear of my life” to justify it — and obviously we can’t know up-front if that is a lie or not, every police shooting automatically assumes the cop was a victim.

    What a great fucking system.
    There will never be any real reform of the police until we start holding the cops to HIGHER standards then the general public rather then looking for more ridiculous way to shield them from any consequences of their actions.

    Because the only reason a cop is supposed to be using deadly force is because of a perceived threat ? I

  2. This kind of annoys me because I had a case in Florida where some really private stuff was in the court records, and the Court of Appeal unsealed it all peremptorily. I accepted it, and Florida practitioners told me that it was consistent with Florida’s public records laws which are so broad that almost everything is available to the public.

    But here we find out that cops who shoot people get their names kept private?

    1. This blog’s censorship practices prevent me from describing with precision people who provide slobbering succor to police officers, but I believe I am still permitted to observe that these substandard people can’t be replaced — by their betters — fast enough.

    2. Dilan Esper: To be precise, all people who shoot people in self-defense (or do other things in self-defense) get their names kept private.

      1. Professor Volokh, your answer begs Esper’s question. I think he wants to know why under that policy cops aren’t exceptions. Cops killing people on duty seem like important instances of public business.

        You are such an insistent advocate for openness in public affairs, why not explain why you think otherwise in the cases of cops who kill people? Maybe confront the problem that of course every fatal shooting by every cop will be, “self-defense,” at least when the cop tells it.

        What about a bystander who sees an incident in question? If he saw what happened differently than the cop did, how could he even report it, if the cop’s name isn’t available, and publicly associated with the case? How could anyone follow up on the quality of the investigation, or even be certain an investigation was conducted? If such shooting are frequent, what would keep the public from conflating them, with every attempt at accountability falling into a hopeless muddle? How could journalists report which cops have records of on-duty shootings, whether justified or not? How could journalists begin to discover whether authorities charged with investigating cop killings were instead sweeping them under the rug?

        Seems like a policy of non-disclosure of cop’s names makes potential cover-up problems way harder to deal with, but you have nothing to say? What do you say to this, from the Tampa Bay Times?:

        No one was keeping track of police shootings in the country’s third-largest state. So in 2014, the Tampa Bay Times set out to count every officer-involved shooting in Florida during a six-year period. We learned that at least 827 people were shot by police — one every 2½ days.

        As a firearms advocate, and an open public policy advocate, why wouldn’t those astonishing reports get your full attention and interest?

        Now broaden the question to civilians. They too know how to claim self defense. Aren’t their shootings actually as important publicly as those done by the cops? How can you have a system of justice which lets unidentified authorities exonerate homicide perpetrators without any requirement for open public oversight?

        I hope you aren’t a defender of that. It’s a big part of why urban riots are a thing, and why potential killers get encouraged to believe they can shoot with impunity, so long as the person targeted doesn’t live to be a witness against them. Is that what the law should encourage? Is that what you want?

        1. “You are such an insistent advocate for openness in public affairs, why not explain why you think otherwise in the cases of cops who kill people? ”

          I have not seen Prof. Volokh state that he favors state secrecy in that context.

          He often seems reluctant to expressly endorse positions that might rile right-wingers (gun absolutists especially), and perhaps he has been customarily fuzzy on this one, but I would expect to observe that if pushed he would acknowledge that the information you describe should be public.

        2. Professor Volokh, your answer begs Esper’s question. I think he wants to know why under that policy cops aren’t exceptions. Cops killing people on duty seem like important instances of public business.

          That is certainly a defensible position that might be worth developing in order to encourage the people of Florida to amend their constitution. But it has no place in a legal opinion interpreting that constitution: sometimes the law takes some policy options off the table, however desirable they might be, and I don’t see much argument that that’s not the case here.

        3. I can’t speak for the professor, but it seems to me that the issue here is that victim’s rights were placed in the state constitution. So they’re more or less on equal footing with any other basic right.

          I personally would agree that these kinds of records should be public, but you’d probably need to re-amend the state constitution to remove these rights if you want to make that happen. I’d encourage Florida to do so.

      2. “all people who shoot people in self-defense (or do other things in self-defense) get their names kept private.”

        Hmm. On the one hand, do I want my name out there if it happens to me. On the other hand, the public has a right to know how “self defense” law is being applied.

        1. dwb68: Your last sentence offers a good argument against the victim privacy rights provision, or at least in favor of revising it to exclude victims who are government officials (or specifically police officers). But, as Florida law now stands, the victim privacy rights provision seems to broadly cover this.

  3. Knowledge is Good
    — Emil Faber, Founder

  4. Massachusetts passed a law to make domestic violence arrest records secret, which had the side effect of keeping a lot of police officers’ names out of public view.

  5. I am a little skeptical but I don’t know FL.

    Seems to me… these events happened while the officers were performing their official duty.

    How is the public to know that “self defense” was a valid conclusion without reviewing the record? I am not saying this is or is not a correct interpretation of FL Constitution, but I find it hard to believe. In FL, if someone invades my house and I shoot them, I can keep my name out of the record, if it is self defense? Given that there would be a massive investigation, followed my a prosecutors memo confirming self defense (or maybe worse a trial), seems unlikely.

    1. Yes, the logic of this opinion would indicate that before you were charged, the government would not be able to release your name through a public records request.

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