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Marsy's Law Ruling Makes Police 'Accountability Nearly Impossible' In Florida, Says First Amendment

Gerard Albert III / WLRN
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Black Lives Matter protesters gather in Weston in June, 2020.

The court ruling marks the first major test of the new Marsy’s Law protections for crime victims — even when the victims are police officers.

A state appeals court in Tallahassee this week ruled for the first time that the names of two police officers involved in two separate deadly shootings should not have their names released to the public.

That’s because under Marsy’s Law, which voters passed as a ballot amendment in 2018, the officers are considered victims of crime — since they both say they were threatened with deadly force before the shootings.

The ruling marks the first major test of the new Marsy’s Law protections for crime victims — even when the victims are police officers.

The ruling is directly at odds with increasing calls for police accountability, following widespread anti-police violence protests last summer after the killings of George Floyd in Minneapolis and Breonna Taylor in Louisville.

“The bigger implication is it makes public accountability nearly impossible and it depends on a state attorney pressing charges for that information to become public,” said Virginia Hamrick, a staff attorney with the First Amendment Foundation. “It just makes it harder for public oversight of policing and specifically deadly force.”

The group joined the city of Tallahassee and various news organizations suing for the release of the names in the lawsuit.

The case was brought about by the Florida Police Benevolent Association, which sued Tallahassee to prevent the city from releasing the officers’ names.

The Circuit Court for Leon County ruled that the officers’ names should be released, since Marsy’s Law “was not intended to apply to law enforcement officers when acting in their official capacity.”

A unanimous three-judge panel in the First District Court of Appeals reversed that ruling on Tuesday. Judge Lori Rowe wrote in the opinion: "That the officer acts in self-defense to that threat does not defeat the officer’s status as a crime victim.”

Steve Zona, president of the Fraternal Order of Police in Jacksonville, responded to the ruling and told the News Service of Florida that "everybody should be happy.”

“Whether you’re against us or not you should be happy that the Constitution is being upheld,” he said

Marsy’s Law completely revamped the state of victims’ rights in Florida. The state was the first in the nation to codify victims’ rights in the state constitution in 1988, in what became a standard for the nation. That original set of rights was effectively repealed and replaced by something entirely different with the passage of Marsy’s Law, in a way that has directly clashed with Florida’s famously broad public records laws.

A ProPublica and USA Today investigation into how Marsy’s Law has been applied in Florida and South Dakota, since it was approved by voters, showed that police departments are regularly refusing to name officers in routine incidents, claiming they are victims of crimes.

Michael Liles speaks on behalf of Marsy's Law in Florida at an event with Governor Rick Scott in March.
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Michael Liles speaks on behalf of Marsy's Law in Florida at an event with Governor Rick Scott in March.

Things as minor as a suspect “walking aggressively or reaching into a pocket” have been considered battery on the officer, triggered victims’ protections and prevented their name from being made public, the investigation found.

"It's not just incidents of force. It can be almost any incident of where an officer is on duty and says that they were fearing for their life and safety," said Hamrick. "That can mean many different kinds of situations."

Since going into effect, some police departments have also used Marsy’s Law to block the release of addresses where some crimes like robbery and vandalism take place.

"It has been used to withhold information about banks, schools, buildings that have been vandalized, like making the victim a physical entity that has been graffitied," said Hamrick. “This broad application of it and not being able to find area information really just makes it harder for the public to know what’s going on in their community."

Nearly all state attorneys in Florida were opposed to Marsy’s Law before it passed, with the exceptions of Miami-Dade State Attorney Katherine Fernandez Rundle and Hillsborough State Attorney Andrew Warren — both Democrats.

The campaign to persuade Florida voters to pass the new version of victims’ rights was almost singlehandedly pushed and funded by California billionaire Henry Nicholas, whose sister Marsalee “Marsy” Nicholas was murdered by an ex-boyfriend in 1983. Since striking it rich in the tech industry, Henry Nicholas has spent tens of millions pushing states to adopt the provisions.

To make it even more complicated, the provision was sandwiched together with two other subjects in a single ballot item by the Florida Constitution Review Commission, a state commission that meets every 20 years to suggest changes to the state constitution. Other questions on the same ballot item related to judicial retirement ages and how courts should interpret laws and rules of state agencies.

Unlike citizen grassroots initiatives, the commission can add multiple questions into one single ballot item, something which remains a very controversial practice.

Groups like the American Civil Liberties Union were staunchly against the proposal, saying that it “pits victims’ rights against defendants’ rights” in a court setting, and could “potentially increase” the chances of an innocent person going to prison. That’s because Marsy’s Law removed the provision of victims’ rights that made it so that a victim had a right to beard in a court setting “to the extent that these rights do not interfere with the constitutional rights to the accused.”

For that reason the ballot item was originally tossed off the ballot by a Leon County Circuit Judge in the lead up to the 2018 election. Leon County circuit court judge Karen Gievers worried that Florida voters did not know they were decreasing the rights of the accused at the same time they increased the rights of victims.

“The problem lies not in what is said but what is not said,” wrote Gievers. “[The language] does not disclose that the chief purpose of revision 6 is to take away or reduce the protection the present Florida system provides an accused in criminal proceedings.”

The Florida Supreme Court overruled Gievers and allowed it to be placed on the ballot. Florida voters passed it with nearly 62% support.

Hamrick said the First Amendment Foundation is now considering next steps. If taken up to the Florida Supreme Court, with the appeal's court decision standing, the ruling would be in effect across the entire state.

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