Justices weigh whether Marsy’s Law shields police

TALLAHASSEE — In a case that could upend public access to information about policing, the Florida Supreme Court heard arguments Wednesday about whether the identities of law enforcement officers are shielded by a 2018 constitutional amendment designed to bolster crime victims’ rights.

An appeals court in April sided with two Tallahassee police officers who invoked the “Marsy’s Law” constitutional amendment to prevent their names from being released after use-offorce shooting incidents in which they were threatened. The Florida Police Benevolent Association, a union representing the officers, argued that they were victims.

But the city of Tallahassee and news organizations asked the Supreme Court to hear the case, arguing in part that Marsy’s Law conflicts with a decades-old government-in-the-sunshine amendment that enshrined in the Florida Constitution some of the nation’s broadest public-records laws.

Marsy’s Law defines a victim as 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 threat or against whom the crime or delinquent act is committed.”

Phil Padovano, an attorney who represents the city, told Supreme Court justices that the officers’ identities should not be shielded from the public because they were not acting as individual “persons” when the incidents occurred.

“An on-duty officer who uses force against a suspect is not acting as an individual but rather as an agent of the government,” Padovano, a former appellate judge, said. “They were not victims because they were not persons by any fair reading of Marsy’s Law.”

But Justice John Couriel pressed Padovano on the issue.

“Let’s say I grant you that he’s not acting on his own capacity, but does he cease to be a person?” Couriel asked. “For example, am I not a person at the moment because I’m wearing this robe?”

The officers are “human beings,” Padovano acknowledged. “But I think a better interpretation of the term ‘person’ in the context of this law is an individual.

“They were not acting as individuals; they were acting as agents of the government. They were, in fact, the government on that day, when they went out there with their weapons, the power to arrest people, the power to detain people [and] the power to use deadly force against people, if necessary.”

But Couriel appeared unconvinced.

“Isn’t your much stronger argument that, while this person is a person, the fact that he has his name on his lapel tells us something?” the justice said. “If I’m a person and I’ve disclosed my identity, haven’t I waived my rights?”

“I don’t think that’s a point anybody made in this case, but I think I would say that’s correct,” Padovano replied.

Luke Newman, who represents the union and the Tallahassee officers identified as “John Doe 1”and “John Doe 2,” argued that the law applies to all crime victims, including the officers who were threatened by people connected to those they ended up fatally shooting.

“The language says that it should apply to every victim,” Newman said, adding that the amendment doesn’t include a “carveout” for law enforcement.

“This is a request for an after-the-fact, ad hoc exception.”

Mark Caramanica, who represents the news organizations, told the justices a constitutional conflict exists between the policies in Marsy’s Law and the state’s open-records law.

The court “needs to … come down with a ruling that gives effect to both,” Caramanica argued.

“And our position here is any ruling that really sort of cuts to the core of the true public accountability type of information that is at issue here — we’ve cited a wealth of case law that recognizes the importance of being able to hold government and police action accountable — that needs to be balanced against the Marsy’s Law provisions, which … are designed to provide rights during the course of a criminal proceeding.”

Couriel also questioned Newman about the “waiver” issue.

“Being anonymous seems anathema to policing as we understand it in a free, democratic republic,” Couriel said. “Help me understand how being a police officer doesn’t waive this claim of full anonymity.”

“There’s been this kind of, like, undercurrent in this case throughout that the finding for my clients John Doe 1 and John Doe 2 is kind of authorizing this KGB-style secret police force,” Newman said. “We’re not advocating for a secret police force. I think that is an unfair characterization.”

Questions from Justice Jamie Grosshans appeared to test just how far the law could reach.

“So, under your reasoning, every single police report that gets filed from this point on would exclude a victim’s name out?” she asked.

“If the victim requested, yes,” Newman said.

The case has drawn the attention of several Florida sheriffs, who are split on whether the law should apply to their officers.

Volusia County Sheriff Michael Chitwood and Pinellas County Sheriff Bob Gualtieri filed friendof-the-court briefs siding with the city.

“VSO (the Volusia Sheriff ’s Office) is interested in this appeal as it believes that the citizens should know the names of deputies who are involved in the use of deadly force while carrying out their official duties,” a motion filed by Chitwood said.

But the Palm Beach County Sheriff ’s Office took the opposite stance, in part citing an increase last year in law-enforcement officers being killed in the line of duty.

“Thus, the PBSO (Palm Beach sheriff ’s office) has an interest in ensuring that a law expressly designed to preserve the safety of crime victims equally applies to law enforcement officers who are victims of a crime and, therefore, limit at least one source of peril to which law enforcement officers may be exposed,” the motion said.

Speaking to reporters after Wednesday morning’s arguments, Newman said it was “demeaning” and degrading to argue that police officers aren’t persons.

But Padovano warned the court’s decision could set a dangerous precedent. The Supreme Court often takes months to decide cases.

“One of the biggest fears I have about this case is that, depending on how it comes out, we could have a situation in which police encounters essentially escape media attention,” he said. “Transparency helps their cause. If they can say, ‘We did this and here’s why,’ they’re better off than [if ] they are saying, ‘This happened over here and I am not going to tell you who it was.’ ”