Experts: Lack of details in Osceola shooting unusual

More than a week after Osceola County deputies in unmarked cars killed 20-year-old Jayden Baez as he and three friends were leaving a Target parking lot, experts in public records law described the lack of details released by the agency as unusual and disturbing.

So far, almost everything publicly known about the shooting came through court records and a Wednesday afternoon press conference by lawyers representing Baez’s family and 19-year-old Joseph Lowe, who lost a finger after his hands were riddled with bullets.

The Osceola County Sheriff’s Office initially refused to release basic details related to the shooting, including the identities of anyone involved, and has denied requests for normally public records, citing an “active and ongoing investigation” by the Florida Department of Law Enforcement.

It wasn’t until Wednesday, a week after the shooting, that Sheriff Marcos López confirmed his deputies were conducting training exercises when they tried to arrest two teenagers in Baez’s vehicle, who were suspected of stealing a pizza and Pokémon cards from Target.

The victims’ lawyers, Mark NeJame and Albert Yonfa, have said López’s agency used the four men in the car as “human guinea pigs” when an unmarked car slammed into Baez’s

black Audi and deputies opened fire. They also called on López to release more information on what led to the shooting.

“Transparency is not saying, ‘We can’t talk about it,’ ” NeJame said at the press conference. “If the Sheriff ’s Office is being transparent, then show us what you got, as we are.”

López: ‘I believe in transparency’

In an initial statement the day after of the shooting, the Sheriff ’s Office said only that “deputies were involved in an officer-involved shooting near the Target” with two deputies firing their weapons “[d] uring the apprehension of four suspects,” one of whom was killed and two others hospitalized.

The statement left out what crime they were suspected of and said nothing about what prompted deputies to fire.

López in his statement a week later — which began, “I believe in transparency and facts” — also gave no indication of why deputies used lethal force, but revealed that none were wearing body worn cameras because they had been “performing training exercises” prior to attempting to arrest Baez and his friends.

An arrest report for Lowe and 18-year-old Michael Gomez, obtained from court records by the Orlando Sentinel the day after the shooting, indicated deputies initially responded because the Audi had a covered or obscured tag, then contacted loss prevention staff at Target, who reported that Lowe and Gomez had been seen stealing.

In a videotaped statement recorded from his hospital bed and released by his attorneys Friday, Lowe described the car being swarmed by unmarked vehicles as soon as he and Gomez returned to it.

“They didn’t say, ‘Hey, freeze,’ they didn’t do any of that,” Lowe said. “... Not even half a second, they start shooting into the car.”

Central Florida law enforcement agencies — most of which, like López’s agency, ask the FDLE to review all shootings by officers or deputies — routinely release body camera footage, 911 calls and reports related to police shootings while the state agency is still investigating.

Last year, the Orange County Sheriff’s Office changed its policy to release videos of police shootings and in-custody deaths within a month, after months of pressure by activists following the August 2020 killing of Salaythis Melvin by Deputy James Montiel.

Some agencies release body camera footage soon after shootings take place. For instance, Volusia County Sheriff Mike Chitwood sent video, 911 calls, and initial reports to news outlets less than 24 hours after deputies shot a suicidal man armed with a rifle in DeBary last June.

Last month, the Lake County Sheriff’s Office released affidavits and 911 calls about a shooting that happened a day before. And last year, the agency released body camera footage about a week after a deputy shot a man apparently going through a psychotic episode.

Florida’s public records law exempts active criminal intelligence and investigative information from disclosure, but according to the statute, that specifically does not include the name of the arrested person, said Virginia Hamrick, an attorney for the First Amendment Foundation.

“You can’t withhold that as active criminal intelligence investigative information,” she said.

Hamrick pointed to an advisory opinion from the Attorney General’s Office, which says the exemption only applies to records obtained during the course of investigating a complaint against a law enforcement officer. It does not “transform” otherwise public records — including crime or incident reports — into confidential records just because the details described in the reports later form the basis of a complaint, she said.

“I don’t see how an FDLE investigation would make all records related to the shooting exempt,” Hamrick said.

The Osceola County Sheriff ’s Office has referred all questions about the shooting to FDLE, which through a spokesperson referred them back to the Sheriff’s Office. Tim Hegerty, who has decades of experience in criminal investigations at agencies in Kansas and Hawaii, called that “disconcerting.”

“That just creates an image of secrecy or of one hand not knowing what the other hand is doing,” he said. “... That’s not particularly a best practice.”

‘Who are they the victim of ?’

In his statement a week after the Target shooting, López said he had not released the names of the deputies involved or the four men, who his agency had described as suspects, under Marsy’s Law, the crime victims’ rights amendment to the state Constitution approved by voters in 2018.

A state appeals court ruled last year that Marsy’s Law, which is meant to protect the privacy of crime victims, can extend to shield the identities of law enforcement officers who kill civilians if the deputies are themselves considered to be victims of a crime.

The Florida Supreme Court is currently considering the issue. Chitwood in February filed a brief arguing Marsy’s Law should not shield officers’ names, saying at the time that releasing them “not only promotes transparency and accountability but helps to rebuild the eroding public trust in law enforcement.”

While law enforcement agencies routinely use Marsy’s Law to avoid disclosing the names of their officers, it is not as common for them to use the constitutional amendment to shield the names of suspects, Hamrick said.

“Basically, it’s been invoked in instances of self-defense,” she said.

Marsy’s Law does prevent the disclosure of information or records that could be used to “locate or harass” the victim or the victim’s family, but Hamrick said it’s not clear how the release of the suspects’ names would lead to harassment, especially because one of them is dead.

“How can you be harassed or located if you’re no longer alive?” she asked.

Marsy’s Law requires victims or their family members to invoke their rights, said Ken Paulson, director of the Free Speech Center at Middle Tennessee State University. Lawyers for Lowe and Baez’s family said neither has invoked that right, though the law likely wouldn’t have applied since they were considered suspects.

“If law enforcement is saying that the deceased suspect is a victim, are they saying that law enforcement committed a crime?” Paulson asked. “Who are they the victim of ?”

The ambiguous language of Marsy’s Law in Florida is “poorly written” and leaves “a lot of room for conflicting interpretations,” said Robert Jarvis, a law professor at Nova Southeastern University, who predicted it will “take years until we know exactly what the amendment means.”

The broad definition of who is considered a “victim” could include a suspected perpetrator, Jarvis said.

“It’s not as far-fetched as it sounds,” he said. “... Because of the way this thing is written, you could make the argument that you can’t disclose anybody’s information.”

Lawmakers can’t amend the ambiguous constitutional amendment — 60% of Florida voters have to agree to a change, Jarvis said. The law professor predicted the public will see more “creative uses” of Marsy’s Law by police departments.

“I think police are overusing it, so far, because they see it as another tool with which to obstruct the press and to prevent them from being put in a bad light,” he said.

Marsy’s Law has played a part in the “ever-weakening” public records law in Florida, Jarvis said.

“Florida was the pioneer of government in the sunshine,” he said. “... It’s really sad that the state that came up with the concept and first put it into practice now has taken such a meat cleaver to it.”

Paulson said it is “inexplicable” that Marsy’s Law is being used to shield the identities of officers or suspects.

“It could not be more clear that the intent was to protect victims of crime,” he said. “Marsy — the namesake of the law — was the victim of a murder. It is so obvious what this law was intended to do and it should not be used to hide any other information from public view. This is completely inconsistent with a state that was once highly regarded for its open records and open meetings laws. There’s just no justification for it.”

The public has a right to know when civilians have been shot or jailed, Paulson said.

“It’s a pretty dark society if the government is allowed to detain people without any of the rest of us knowing who they are,” he said.