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Should the identities of police officers be protected in Florida pursuant to Marcy’s Law?

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Op-ed views and opinions expressed are solely those of the author.

In the state of Florida, Marcy’s Law provides crime victims a slate of rights. For example, the law protects victims and their families from harassment by their attackers, and entitles them to privacy. Recently, the First District Court of Appeals in Florida overruled a trial court and ruled that Marcy’s Law protects police officers while they are performing their public duties. There are some compelling reasons why it is important to protect the identity of the state’s police officers. There is also a need to protect the rights of Floridians to hold government accountable. Ultimately, the Florida Supreme Court could weigh in on this important issue. 

The suit stemmed from two officer-related shootings that resulted in fatalities. Following the shootings, the City of Tallahassee sought to disclose the identities of the police officers to the public. The officers and the Florida Police Benevolent Association objected to such disclosure and subsequently asked a court to prevent such disclosure and to declare that the officers involved in the shooting were crime victims entitled to the protections granted under article I, section 16 of the Florida Constitution. Section 16 (e) defines the term victim as follows:

(e) As used in this section, a “victim” is 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 delinquent act or against whom the crime or delinquent act is committed. The term “victim” includes the victim’s lawful representative, the parent or guardian of a minor, or the next of kin of a homicide victim, except upon a showing that the interest of such individual would be in actual or potential conflict with the interests of the victim. The term “victim” does not include the accused. The terms “crime” and “criminal” include delinquent acts and conduct.

The trial court did not dispute that the suspects in both instances threatened the officers with deadly force and that the officers had a well-founded fear that violence against them was imminent. Notwithstanding, the trial court did not believe that an officer acting in his official capacity could be a crime victim pursuant to article I, section 16. According to the trial judge, since the suspects were killed, “the officers were not seeking protection from the ‘would-be accuseds,’ but rather from ‘possible retribution for their on-duty actions from unknown persons in the community.’” This, according to the trial judge, was outside the scope of Marcy’s Law, which should not be used to “shield police officers from public scrutiny of their official actions.” 

The First District Court of Appeals disagreed. As reported by WCTV, in overturning the trial court, the First District Court of Appeals ruled that a police officer “meets the definition of a crime victim under Marsy’s Law ‘when a crime suspect threatens the officer with deadly force, placing the officer in fear for his life. That the officer acts in self-defense to that threat does not defeat the officer’s status as a crime victim.’” As such, the appellate court “reversed the trial court’s order directing the City of Tallahassee to disclose public records that would reveal the identities of the two officers.”

This ruling is significant in that it provides police officers with certain rights, including the right to confidentiality, even in officer-related shootings. Specifically, section (b)(5) gives crime victims the “right to prevent the disclosure of information or records that could be used to locate or harass the victim or the victim’s family, or which could disclose confidential or privileged information of the victim.” Such protections can be pivotal for officers under certain circumstances. 

By way of example, after the tragic shooting of a 16-year-old girl in Columbus, Ohio, LeBron James tweeted a picture of the officer involved in the shooting with a message warning the officer that he was “next.” 

While James subsequently deleted the tweet due to tremendous backlash, the effects of his irresponsible tweet could not be undone. James had endangered the officer and/or his family by way of his tweet, and his decision to delete the tweet could not serve to remedy his terrible and irresponsible decision. Deon Joseph, a Los Angeles Police Department officer, recently wrote a letter to James. In it, he stated:

“Your current stance on policing is so off base and extreme. Your tweet that targeted a police officer in Ohio who saved a young woman’s life was irresponsible and disturbing. It showed a complete lack of understanding of the challenge of our job in the heat of a moment,” Joseph said. “You basically put a target on the back of a human being who had to make a split-second decision to save a life from a deadly attack … a decision I know he and many others wish they never had to make. Especially when it involves someone so young.”

While there are some compelling reasons to protect the identity of police officers under Marcy’s Law, there are also some potential risks/concerns. For example, some police officers could abuse this right. If a police officer engaged in wrongdoing, for example, should the identity of the officer be protected? If a police officer used unreasonable force against an assailant who was attacking him/her, should the identity of the officer be protected even if he/she was acting in self-defense? In response, the appellate court pointed out that, even with such protections, officers could still be held accountable by way of internal affairs investigations, grand jury proceedings, or prosecution (if it turns out that the officer was not a crime victim). 

There are other potential legal and/or constitutional concerns. For example, are the names/identities of the police officers subject to disclosure as public records pursuant to article I, section 24(a) of the Florida Constitution, which provides:

(a) Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except with respect to records exempted pursuant to this section or specifically made confidential by this Constitution. This section specifically includes the legislative, executive, and judicial branches of government and each agency or department created thereunder; counties, municipalities, and districts; and each constitutional officer, board, and commission, or entity created pursuant to law or this Constitution.

On the one hand, if the rights afforded by Marcy’s Law (article I, section 16) apply to officers while they are performing their public duties, this could constitute an “exception” to the rights to inspect or copy public records, as set forth in article I, section 24(a). 

On the other hand, the public has the right to hold government accountable, which is one of the primary purposes behind Florida’s public records law(s).

The City of Tallahassee intends to ask the Supreme Court to review the case. As reported by WCTV, Richard Murphy, President of the Big Bend Police Benevolent Association, was quoted as saying:

“The judges in the First DCA I believe strongly ruled in our favor, and they explained it great. We are part of this community, and we deserve the same protections as everybody else.”

“We’re confident we’re going to be victorious at the Supreme Court level also, but it’s just another hurdle that we have to jump through, and it’s unfortunate. Obviously I disagree with them filing the appeal, but that’s their right to do. And we’re looking forward to finally putting this issue to rest. We’re going to stand up and protect our members and continue to do that.” 

If the Florida Supreme Court accepts the case, its eventual ruling could have far-reaching implications in the Sunshine State.  

Mr. Hakim is a political writer and commentator and an attorney.  His articles have been published in The Washington Examiner, The Daily Caller, The Federalist, The Algemeiner, The Western Journal, American Thinker and other online publications.

Elad Hakim

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