In a ruling that could have far-reaching implications for police use of force, a Florida appeals court ruled that officers who kill citizens can hide their identities as part of a measure designed to protect crime victims from violence and harassment.
A three-judge panel of the First District Court of Appeals unanimously overturned a lower court ruling on Tuesday denying protection to duty officers under Marsy’s Law, a provision passed in at least 12 states, including Florida.
In October, an investigation by USA TODAY / ProPublica found that law enforcement agencies – particularly in Florida – were increasingly being brought to justice as police across the country came under scrutiny on allegations of brutality and systemic racism Marsy’s Law co-opted to protect the identities of officials accused of violence.
Florida authorities used it to hide the names of officers who sent a 15-year-old boy to hospital, officers who fired bullets into moving cars, and officers who unleashed their K9 dogs on drunk and mentally ill people to have.
Marsy’s law was first passed in California in 2008. In November, voters approved the move in Kentucky, a state still affected by the botched raid that killed Breonna Taylor, a 26-year-old black medical worker in Louisville. Had it happened in March 2020, the public may not have known the identities of the three white officers who opened fire.
Marsy’s Law was elected in Florida in 2018 after it was introduced as a constitutional amendment by a sheriff and revised with the help of two statewide law enforcement agencies. USA TODAY and ProPublica gathered information from dozens of Florida law enforcement agencies and checked thousands of pages of police reports to find that at least half of Florida’s 30 largest law enforcement agencies were applying the law to officers on duty.
Authorities said the officers were victims of crime and were hiding their names when the officers said someone physically opposed the arrest or attacked them, prompting the officers to use force against them. Authorities seldom edited the names of suspects against whom they had used violence, including teenagers and mentally ill people in the midst of a crisis.
Officers were not injured in at least half of the incidents for which they claimed victim rights, records show. Even minor movements that officials perceived as threatening, such as B. Aggressive walking or reaching into a pocket, were classified as batteries for civil servants – which, according to the authorities, triggered the protection of the law.
In July 2020, the Leon Circuit Judge Charles Dodson decided this officers on duty receive no protection under Marsy’s law. The verdict arose from the explosive case of Tony McDade, a black transgender man who was shot dead by a Tallahassee Police Department officer on May 27th. McDade was killed after fatally stabbing a neighbor’s son.
Tuesday’s decision was a legal defeat for the city planned to publicly identify the officer who killed McDade, and the Tallahassee Democrat and other news organizations that intervened to force the officer’s name to be published.
“Today’s decision was an unfortunate setback to police accountability,” said Mark Caramanica, a Tampa attorney who represents news organizations.
After McDade’s death, the Florida Police Benevolent Association sued the city of Tallahassee for blocking the publication of the officer’s name and the name of another officer involved in a separate case.
The police union argued that the officers themselves were victims of severe attacks by the armed suspects they killed and therefore qualified for anonymity under Marsy’s law. The appeals court approved his 13-page decision.
“We are reversing the court order that ordered the city to publish public records showing the identity of the two officers,” said Judges Robert Long, Timothy Osterhaus and Lori Rowe.
“And we are overturning the court ruling that law enforcement agencies who are victims of crimes under (Marsy’s Law) are not protected.”
City undecided whether to appeal
Prosecutor Cassandra Jackson said the city respected the deliberations and decisions of the appeals court.
“The court has found that police officers, while acting in the context of their public duties, receive the protection of Marsy’s law as victims of crime,” she wrote. “The city will carefully review the court’s decision to determine whether to appeal.”
Mutaqee Akbar, an attorney representing McDade’s family, said the decision contradicts his own position. He encouraged citizens to work with lawmakers to change the Marsy Act to cut the police out of their protection.
“Transparency is so important,” he said. “I think the PBA is hiding behind Marsy’s law so as not to be transparent.”
Stephen Webster, lawyer for the Police Benevolent Association, praised the decision, saying the police should not be excluded from Marsy’s law “just because they choose to patrol our streets and protect us”.
“Both officers were threatened with deadly force,” he said, “and they had to make the terrible decision to use lethal force in defense of themselves.”
“Transparency is everything”
Dodson, who resigned from the bank in January, wrote in his July decision that the police had a “very difficult and important job” but were not outside the public control of their on-duty actions. He ordered the city to release the names of the officers, but maintained his own decision in anticipation of the police union’s appeal.
“The public has a vital right to evaluate the behavior of our law enforcement officers, who are empowered to arrest people and use lethal force,” Dodson wrote. “If this court finds that law enforcement officers on duty can use Marsy Act to prevent their names from being disclosed, they will receive protection that is not intended by the express purpose of that act.”
The Appellate Body wrote that reading the Marsy Act does not mean the public cannot hold law enforcement accountable. The judges found that officials charged with their conduct would lose the rights of their Marsy Act.
“Maintaining confidential information about a law enforcement officer who is a victim of a crime would not stop an internal affair investigation or interfere with grand jury proceedings,” they wrote. “Nor would it prevent a prosecutor from checking the facts and checking whether the officer was a victim.”
Pamela Marsh, executive director of the First Amendment Foundation in Tallahassee, expressed disappointment with the decision, noting in a press release that other states are demanding disclosure of records of police shootings and excessive violence.
“But Florida is moving in the opposite direction,” she said. “This decision can only undermine public belief that law enforcement will ever be held accountable for serious wrongdoing. Transparency is everything when it comes to trust.”
Contact Jeff Burlew at [email protected] or follow @JeffBurlew on Twitter.
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