A consequence of Marsy’s Law secrecy: Less accountability for police who use force
Given the protests and calls for police accountability that have engulfed America, the last thing the criminal and judicial system needs is less transparency.
But that’s what’s been playing out in a Tallahassee courtroom, where the city’s police department is trying to shield the identity of two officers involved in recent shootings.
For now, they are known as “John Doe 1” and “John Doe 2.” They might remain that way thanks to Marsy’s Law, which should be renamed “The Law of Unintended Consequences.”
It was designed to protect the rights of crime victims. That sounded good to 62% of Florida voters, who passed it as a constitutional amendment in 2018.
It hasn’t turned so good for open government, and the state Legislature needs to clarify the law the next chance it gets.
What cries out for clarity is a provision that promises privacy to crime victims. That has warped into a catch-all for law enforcement to withhold information from the public and further erode Florida’s open-government laws. Among the excesses:
■ Jacksonville police stopped reporting where some crimes were committed. Tallahassee police release only general information about murders and other serious crimes with scant details. Such information is often crucial in generating tips that might actually solve the crime.
■ A Sarasota woman was charged with child abuse, but authorities refused to name the daycare center where she worked.
■ Tampa police refused to identify a pedestrian killed by a motorists even after dozens of people gathered to publicly eulogize him at the scene of the accident.
■ After a man broke into a woman’s house and attacked a sleeping woman, Fort Myers police refused to reveal key details or release a sketch of the suspect.
Such maneuverings became routine after Amendment 6 went into effect last January. But two police shootings in Tallahassee have again raised the alarm over Marsy’s Law.
On May 19, Officer John Doe 1 killed a suspect who charged at him with a knife. On May 27, Officer John Doe 2 killed a Natosha “Tony” McDade, a Black transgender man who was a suspect in a murder and allegedly pulled a gun on police.
The Tallahassee Police Department claims the officers are victims of crimes, no different than a 7-Eleven clerk who gets held up. And under the ambiguous language of Marsy’s Law, their identities can be kept private.
Law enforcement officers are indeed private citizens — up until they put on their badges and report for work.
Then they become agents of the state, acting in a public capacity to enforce society’s laws. The public should be able to fully evaluate those actions.
The Florida Police Benevolent Association begs to differ. It says redacting names doesn’t hamper public oversight.
Without names, however, it’s impossible to know the officer’s work record and whether there’s a history of complaints. Under the PBA’s interpretation, officers could claim to be crime victims in every use-of-force case.
If Minnesota had a Marsy’s Law, the public in theory might still not know the identity of the policeman who knelt on George Floyd’s neck, much less the fact that Derek Chauvin had nearly 20 complaints and two letters of reprimand filed against him during his 19-year career. Countless other instances where police clearly were in the wrong might have been covered up under the guise of a Marsy’s Law.
We trust that most officers aren’t given to such brutality. But concealing all their names only makes it harder to root out the ones who are.
“My question in this environment today is, why would you do that?” asked Pinellas County Sheriff Bob Gualtieri, who’s also president of the Florida Sheriff ’s Association. “You signed up to do this job. You live in a fishbowl. You need to be transparent and you can’t be afraid of identifying yourself.”
The rub is that Marsy’s Law is firmly in constitution and statutes, where it often contradicts the constitutional and statutory guarantees of open government.
Balancing victims’ rights with the public’s right to know is the crux of the case in Tallahassee.
“I don’t think I can say that one outweighs the other,” Judge Charles Dodson said. “They need to be read so that they both make sense.”
Constitutional amendments aren’t hashed out through the usual lawmaking process, leaving it up to legislators to clarify the abstractions. When Amendment 4 restored voting rights to ex-felons in 2018, lawmakers could hardly wait to weigh in and define exacting terms.
They’ve felt far less imperative about Amendment 6. Sen. Lauren Book, D-Plantation, filed a bill in 2019 that would have clarified the law and excluded police from the privacy provision. It died without getting a hearing.
If we didn’t know better — and we don’t — we’d think lawmakers welcome all the unintended consequences of Amendment 6.
They might, but good governance requires trust. And trust requires being as open and honest as possible.
There’s a severe deficit of that right now. It will never be restored if every law enforcement officer becomes a John Doe.
Editorials are the opinion of the Orlando Sentinel Editorial Board and are written by one of its members or a designee. The editorial board consists of Opinion Editor Mike Lafferty, Jennifer A. Marcial Ocasio, Jay Reddick, David Whitley and Editor-in-Chief Julie Anderson. Send emails to insight@orlandosentinel.com.