The Volokh Conspiracy
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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.
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.