Benjamin Ashford|Florida Supreme Court rules police using deadly force not protected by Marsy’s Law

TALLAHASSEE,Benjamin Ashford Fla. -- In a sweeping decision with major ramifications for police accountability across Florida that could be influential in other states, the Florida Supreme Court ruled Thursday that Marsy's Law can't be used to shield the identities of police officers who use deadly force.

The conservative high court, in a 6-0 decision, opined Marsy’s Law, an amendment to the state constitution approved by voters in 2018 that granted a number of rights to crime victims, doesn't guarantee anonymity for police officers — or any victim of crime.

"Marsy’s Law guarantees to no victim — police officer or otherwise — the categorical right to withhold his or her name from disclosure," the court opined.

The ruling marked a major victory for First Amendment advocates, who argued police officers aren’t entitled to confidentiality for their on-duty conduct.

Mark Caramanica, a Tampa attorney representing media outlets, called the decision "a win for government transparency."

“The court applied a commonsense approach to interpreting Marsy’s Law that reins in overzealous applications that hide newsworthy information from the public," he said. "In this case, the issues could not have been weightier and the court’s ruling prevents police officers from shielding their names when on-duty shootings occur.”

The dispute grew out of two separate incidents in 2020 involving Tallahassee, Florida, police officers who fatally shot armed suspects who were threatening them. The officers were later cleared by a grand jury.

"Marsy’s Law does not preclude the city from releasing the names of the two police officers whose conduct is at issue in this case," the court wrote. "We quash the decision of the First District Court of Appeal and remand for further proceedings consistent with our decision."

The legal battle began after the city of Tallahassee announced plans to publicly release the officers’ names. The Police Benevolent Association sued, arguing that the officers were victims of a crime and thus were entitled to Marsy’s Law protections.

The city, which was joined by a coalition of media outlets including the USA TODAY NETWORK - Florida and the Tallahassee Democrat, prevailed initially, with then-Circuit Judge Charles Dodson ruling in 2020 that the public had a “vital right” to evaluate the conduct of law enforcement and that Marsy’s Law was never intended to grant officers confidentiality.

However, the 1st District Court of Appeal reversed Dodson’s decision, putting the case before the state Supreme Court, which heard oral arguments nearly a year ago on Dec. 7, 2022.

Luke Newman, an attorney for the PBA, said the police union was in touch with the two officers, currently known as John Doe 1 and 2, to prepare them for the public release of their names.

"I'm disappointed, and I feel like it was wrongly decided," Newman said of the decision.

Marsy’s Law, which won with 61% approval of the voters, was sold to the public as the Florida Crime Victims Bill of Rights. It gave crime victims numerous new rights, including notification of upcoming court proceedings and the ability to speak out during hearings. It also granted victims “the right to prevent the disclosure of information or records that could be used to locate or harass the victim” or their family.

The Supreme Court addressed that issue directly, writing, "We conclude that Marsy’s Law does not guarantee to a victim the categorical right to withhold his or her name from disclosure. In their ordinary and plain usage, the relevant words of our Constitution, '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' ... do not encompass the victim’s identity."

The opinion was authored by Justice John Couriel, with Chief Justice Carlos Muniz and Justices Charles Canady, Jamie Grosshans and Renatha Francis concurring. Justice Jorge Labarga concurred in the result only, and Justice Meredith Sasso didn't participate in the ruling.

After its passage, law enforcement agencies across Florida began redacting the names of crime victims and in some cases the places where crimes occurred. They also stopped providing names of officers involved in deadly encounters with suspects and in some cases took down videos involving police use of force.

The PBA argued both of the Tallahassee police officers were victims of aggravated assault when they encountered the two suspects, Tony McDade and Wilbon Woodard. McDade, a Black transgender man who fatally stabbed a neighbor's son before raising a gun at an officer, became a rallying cry by some in the Black Lives Matter movement after he was killed May 27, 2020, two days after George Floyd’s killing by Minneapolis police.

Lawyers for the media outlets argued what Marsy’s Law was designed to protect “simply falls away” because the victims in the case killed their victimizers. The media coalition includes the First Amendment Foundation, the Florida Press Association, the McClatchy Company, the New York Times and Gannett, which owns the Tallahassee Democrat.

Mutaqee Akbar, the attorney for McDade's family, said they still don't know the identities of the officers who shot McDade, but Thursday's ruling should clear the way for that.

"It shows what we said three years ago, as far as law enforcement should not be shielded by Marsy's Law, and that they should not have been trying to use that law to stop the community from knowing who those officers are when they're involved in in police shootings or other conduct," he said.

How Marsy's Law is used to shield police in other states

Marsy’s Law was first enacted in a 2008 voter referendum in California. It has since passed in 16 other states.

Whereas California and others states’ provisions prohibit “the disclosure of confidential information to the defendant,” North Dakota’s version passed in November 2016 deleted the words “confidential” and “to the defendant” – leaving a provision that simply prohibits the disclosure of victim “information” to anyone. Florida and South Dakota followed suit in 2018.

USA TODAY and ProPublica investigation:Marsy’s Law was meant to protect crime victims. It now hides the identities of cops who use force.

Although North Dakota's attorney general tried to clarify in 2017 that Marsy's Law does not protect victims' names, police ignored that guidance. Later that year, a Bismarck police officer invoked Marsy’s Law after shooting and wounding a man who he said punched him and gouged his eyes. The agency declined to identify the officer, but The Bismarck Tribune uncovered his name and published it – prompting protesters to gather outside the newsroom in support of police.

In the months after, more North Dakota officers invoked the law, with support from Marsy’s Law for All, a national organization. This year, police in Wisconsin and Ohio have also cited Marsy's Law to justify withholding the names of officers involved in shootings from the public.

Marsy's Law for All reversed its previous position and announced in October it didn't believe Marsy's Law should shield the identities of on-duty officers who use physical force, saying "the right to privacy of their name must quickly yield to the public’s right to know."

Florida's decision could be 'persuasive' in other cases

Paul Cassell, a professor at the University of Utah's College of Law, said the decision is the first of its kind that he's aware of and that the case was being closely watched in other states. As similar issues around the use of Marsy's Law brew elsewhere, he said he expects more litigation, which could be influenced by Florida's decision.

"The Florida Supreme Court has written a detailed and carefully reasoned decision that could very well prove persuasive in some of the other states where the language is similar to what's found in Florida," said Cassell, a member of the board of advisors for Marsy's Law for All.

In October, The Columbus Dispatch, part of the USA TODAY Network, filed a complaint with the Ohio Supreme Court against the Columbus Division of Police for failing to identify officers involved in deadly shootings or other use of force incidents. An attorney for the news outlet, Jack Greiner, told USA TODAY Thursday's decision could help his case, but the impact of the decision beyond Florida will depend on the language of the laws in each state.

"It's a factor in our favor, and we'll use it as best we can," he said. "But it doesn't really go to the specific statutory language that we've got to deal with in Ohio."

Akbar also said Florida's decision doesn't necessarily have ramifications for other states because it's not a binding decision and other states could reach different conclusions. But, he said, the Florida decision could be used in arguments and could be considered "persuasive." And if another state comes down a different way, the issue could go to the U.S. Supreme Court.

Akbar said the decision could be a deterrent for police violence and misconduct and called it a "huge win for transparency."

Contributing: Eric Lagatta, USA TODAY and Jordan Laird, Columbus Dispatch