Marsy’s Law becomes a monstrosity

Had George Floyd died in Florida, we might never know the name of the cop who killed him with a knee on his neck for nine minutes and 29 seconds.

That’s the incredible but logical consequence of an iron curtain of idiocy that a Florida court has constructed for the benefit of police officers accused of excessive force.

They need only to claim to be crime victims themselves to have their identities kept secret under Marsy’s Law, the victims’ rights Amendment 6 that was expensively sold to Florida voters in 2018.

Has there ever been a killer cop who didn’t claim the victim was resisting or committing some other crime against the officer? Not that we’ve heard.

The April 6 decision of the First District Court of Appeal forbids the city of Tallahassee from releasing the names, as it had intended, of two police officers involved in possible excessive force cases.

One was the shooting death of Tony McDade, a Black transgender man, whom police shot and killed after he had fatally stabbed someone else. Details of the other fatal incident are not as well-known.

The Police Benevolent Association sued the city on behalf of two officers, identified only as John Doe 1 and John Doe 2, to keep their identities secret.

Circuit Judge Charles Dodson ruled in effect that the privacy provisions of Marsy’s Law were intended to protect crime victims from retribution by their attackers, not “law enforcement officers when acting in their official capacity.” Furthermore, in the two cases, “the would-be abused are dead, killed by the officers in the line of duty.”

“This court cannot interpret Marsy’s Law to shield police officers from public scrutiny of their official actions,” Dodson ruled.

But that common-sense victory for public accountability in a state whose Constitution extols the public’s right to know was lost on a three-judge panel of the First District Court of Appeal.

All three judges came to the court from positions in government, where far fewer officials actually believe in public scrutiny than profess to respect it.

One of the three, Robert E. Long Jr., a recent appointee of Gov. Ron DeSantis, was a Leon County deputy sheriff before getting his law degree and returning to work for the sheriff as his general counsel. Something is just not right when a judge with a recent background in law enforcement votes to shield police from public scrutiny.

The decision, written by Judge Stephanie Rowe, accepted as fact that “crime suspects threatened Tallahassee police officers with deadly force.” That may be true, but it begs the question of whether a provision meant to shield the identity of private citizens should be stretched so far as to hide the identities of the officers. Whether they serve in the White House, in Congress, or in blue uniforms, people employed by the public should be accountable to the public. When former Gov. Charlie Crist appointed Rowe, she was his deputy general counsel. Former Gov. Rick Scott appointed the third judge, Timothy Osterhaus.

In its hyperliteral interpretation of Marsy’s Law, the district court didn’t even attempt to balance the public’s interest against the wishes of police to act anonymously. And, as the court noted, its blanket protection would apply also to “correctional officers (who) often encounter violence while performing their duties.” In a cringeworthy rationale reminiscent of Marie Antoinette’s apocryphal “Let them eat cake,” Rowe’s opinion said Marsy’s Law does not mean “that the public cannot hold law enforcement officers accountable for any misconduct.”

“Maintaining confidential information about a law enforcement officer who is a crime victim would not halt an internal affairs investigation nor impede any grand jury proceedings,” she wrote. “Not would it prevent a state attorney from reviewing the facts and considering whether the officer was a victim. If the prosecutor determines that the officer was not a victim and instead charges the officer for his conduct, then the officer would forfeit the protection.”

What’s wrong with that? The better question is, “What isn’t?” What the court envisioned isn’t how the world works.

First, it assumes that all police agencies have aggressive internal affairs units.

Second, it leaves it to prosecutors or grand juries to decide in effect what the public is entitled to know.

Worst, it makes it impossible for the public to gauge whether any of those agencies are protecting the public interest or protecting bad cops — grand jury proceedings and police investigations are, after all, secret.

The Tallahassee case is the first judicial interpretation of Marsy’s Law and needs to be appealed to the Florida Supreme Court. The city hasn’t decided whether it will. Neither has a media coalition, including the First Amendment Foundation, that entered the case as intervenors. They all should appeal because the consequences are so serious.

Marsy’s Law sorely needs to be fixed. In a perverse stretch, the Florida Highway Patrol has stopped releasing the names of people involved in traffic accidents, regardless of whether or not they request protection or whether crimes actually were involved. In Sarasota County, a bank that had been robbed invoked Marsy’s Law to keep its identity secret. So did a school, perhaps a public school, that had been vandalized in Pasco County.

For institutions and banks to claim privacy protections intended for flesh-andblood people is a grotesque perversion of the amendment.

Amendment 6 was successfully lobbied to the Florida Constitution Revision Commission and then to the voters by a California billionaire whose sister had been murdered and who employed the popular actor Kelsey Grammer to help sell it. In adopting it almost whole, the Constitution Revision Commission did not seem to care that an extensively detailed law inspired by circumstances in California might not be appropriate for Florida, which already had many victims’ rights provisions resulting from a 1988 amendment. Little thought was given to how it might affect criminal trials or subvert Florida’s long-standing commitment to open government. The summary was deficient, but the Florida Supreme Court voted 4-3 to leave it on the ballot.

Sen. Lauren Book, D-Plantation, was an ardent advocate of Amendment 6 and defended it against our editorial criticism. She had a pertinent perspective as a victim of child sexual abuse. Victims, she wrote, had not been treated with “fairness, dignity and respect.” But now, it is the public that is not being treated with dignity and respect. We call on her for legislation to correct that.