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In Florida, Police Shootings Could Be Shrouded In Secrecy For Years To Come

Gerard Albert III

A well-funded, and mostly misunderstood, 2018 ballot amendment could roll back public oversight of the police for the foreseeable future. How did we get here?

As many parts of the country move towards increased police accountability, after the murder of George Floyd by a police officer in Minneapolis, Florida is quickly moving in the opposite direction.

It wasn’t a direct decision by lawmakers or the governor that made this reality but a long-term consequence for a poorly-understood, and well-funded, ballot amendment that was overwhelmingly approved by voters in 2018.

Michael Liles speaks on behalf of Marsy's Law in Florida at an event with Governor Rick Scott in March.
Brittany Clark
Florida Governor Rick Scott's Office
Michael Liles speaks on behalf of Marsy's Law in Florida at an event with Governor Rick Scott in March.

That amendment, known as "Marsy’s Law," created a broad "right to prevent disclosure of information" for anyone considered a victim of crime.

In a high-profile court case, that could soon end up before the Florida Supreme Court, the names of officers involved in two separate fatal police shootings in Tallahassee have been blocked from release thanks to that provision. The two men shot and killed by police were Tony McDade, a Black trans man who was a suspect in a murder that took place just before the shooting, and Wilbon Cleveland Woodard, a Black man.

Officers in both cases assert they were threatened with deadly force before the fatal shootings, making them victims.

Under Marsy’s Law, the police union successfully prevented the officers’ names from being released.

“It just allows law enforcement officers to go around without any accountability. And it just makes it harder for public oversight of policing and specifically deadly force,” said Virginia Hamrick, a staff attorney at the First Amendment Foundation of Florida, which is a party in the lawsuit.

The decision to block the names of officers from being released was made in April, by a unanimous three-judge panel in the First District Court of Appeals. Judge Lori Rowe found the officers were victims, writing in the opinion: "That the officer acts in self-defense to that threat does not defeat the officer’s status as a crime victim.”

Previously, the Circuit Court for Leon County ruled that the names should be released, since Marsy’s Law “was not intended to apply to law enforcement officers when acting in their official capacity.”

The appeals court ruling alarms government transparency advocates, activists and some members of the law enforcement community alike.

That’s because police are increasingly claiming to be crime victims for routine things that take place when they are on duty. An investigation by ProPublica and USA Today, into how Marsy’s Law has been applied in Florida and South Dakota, showed officers are routinely using perceived threats like someone “walking aggressively or reaching into a pocket” to claim victimhood. The names of officers in those incidents are then being redacted in police reports.

In addition, many police departments are restricting information about where crimes happen, because businesses and buildings themselves can be considered victims of crime.

“It has been used to withhold information about banks, schools, buildings that have been vandalized,” said Hamrick. “If you can’t find where a burglary took place — like what if a neighborhood has had 20 burglaries in a week? And you can’t get information on those? It just makes reporting more difficult, it makes the public less aware of what’s going on in their community.”

The new reality impacts the ability of the public to track citizen complaints and use of force incidents from particular officers. In the long run, it means problematic officers could move to new jurisdictions without any oversight from citizens or potentially even fellow law enforcement agencies.

“If they did a record search, it would be withheld under Marsy’s Law, and an officer could continue to move around and continue to use force and continue to claim that they’re a victim,” said Hamrick.

The city of Tallahassee wanted to release the officers' names, but the Florida Police Benevolent Association, a statewide police union, sued to block their names from release, citing new victim rights under Marsy’s Law.

In legal filings, the group argues that the officers were legitimately victims of a crime before the fatal shootings, not that Marsy’s Law is being used as a loophole for police accountability.

The city, the First Amendment Foundation and different news organizations have started the process of appealing the case to the Florida Supreme Court. The court has not yet formally taken the case.

Multiple attempts to conduct a formal interview with officials at the Florida Police Benevolent Association were unsuccessful.

However, in a quick phone call with WLRN, union president John Kazanjian said he is keeping his fingers crossed that the Florida Supreme Court does not take up the case.

“I hope not,” he said. “You had a three-judge panel unanimously agree that the officers were victims. I don’t think there’s much to talk about there."

One of the most prominent law enforcement officers in the state is concerned about the appeals court’s ruling that officers’ names should be blocked from release. Hillsborough County Sheriff Bob Gualtieri argued in a legal filing to the Florida Supreme Court that officers in these cases should not be considered victims.

“A police officer who shoots and kills another is not a ‘victim’ of that shooting and cannot invoke Marsy’s Law to shroud his shooting in secrecy,” wrote Gualtieri, through his attorneys.

Gualtieri grew to statewide prominence as the head of the commission that probed the murder of seventeen students at Marjory Stoneman Douglas High School in Parkland, and as a past president of the Florida Sheriff’s Association. In the filing to the Florida Supreme Court, he gave notice that he plans to intervene if the court accepts an appeal from Tallahassee in the case.

“That a use of force is justified does not shield the identity of the person using it from public view,” wrote Gualtieri.

How Florida Got Here

The road to this point has been long and winding. Marsy’s Law got on the ballot not through a typical ballot initiative process, but through the 2018 Florida Constitution Revision Commission, a statewide group that meets every 20 years to suggest changes to the Florida Constitution. Members of the commission are appointed by Florida lawmakers, Florida's Attorney General and the Chief Justice of the Florida Supreme Court.

The members vote on proposed changes and then place them on the ballot for voters to approve.

In early 2018, the question of Marsy’s Law arose in the commission.

Out of the 37 members of the commission, only three voted against putting it on the ballot.

One of them was Hank Coxe, a Jacksonville attorney appointed by Chief Justice Charles Canady. He argued before the group that the Florida Constitution already had more than adequate protections for victims’ rights, alongside existing statutes, and any change was not just unnecessary but flirting with disaster.

“If we do this and something runs afoul — a serious problem — we have to amend the Constitution,” Coxe warned.

His concerns were echoed by Arthenia Joyner, an attorney and former Democratic state representative from Tampa.

“I’m concerned about the unintended consequences that may arise,” she said.

Coxe and Joyner voted against putting it on the ballot, alongside Rich Newsome, an Orlando-based attorney.

Florida was the first state to incorporate victims’ rights into its constitution, a move voters approved in 1988, in what became a standard for the nation. Marsy’s Law would totally rewrite that section of the constitution.

“The way I was thinking of it at the time was I couldn’t imagine what was going to go right if we passed it,” Coxe told WLRN. “We had already in place the strongest language in our constitution compared to other states in the country that protected victims’ rights. So we weren’t going to improve on it at all.”

Asked about the potential of Marsy’s Law to block the names of police officers involved with use of force incidents or deadly shootings, he said: “I do not recall this particular issue ever, ever being discussed.”

The bulk of the discussion around Marsy’s Law involved its other aspects. It would mandate that victims of crime are informed and able to express themselves in every step of the legal process, and controversially, allow victims to refuse depositions in court cases. Defense attorneys were strongly against that provision, since some criminal cases are won when attorneys unearth inconsistencies or falsehoods in victim statements. Supporters argued that depositions were sometimes used to re-victimize victims.

The rewrite of the section of the state constitution was detailed and thorough. The member of the Constitution Revision Commission who shepherded through Marsy's Law was Timothy Cerio, the chief legal advisor for then-Gov. Rick Scott. At the time he explained that the level of detail was intended “to provide narrow, specific rights to avoid confusion, to hopefully also avoid the need for a whole lot of judicial interpretation, but to make it clear and concise.”

Many of the provisions were already written into state statutes and already in the state constitution, but it went above and beyond.

“Marsy's Law is about ensuring the victims' of crime, who are frankly thrust into the criminal justice process through no fault of their own and certainly having no desire on their own, are treated with respect and with dignity and equity,” said Cerio in a public meeting in early 2018.

Cerio did not respond to requests for comment for this story.

After it was placed on the ballot, the campaign to pass Marsy’s Law in Florida was almost single handedly pushed and funded by California billionaire Henry Nicholas, whose sister Marsalee “Marsy” Nicholas was murdered by an ex-boyfriend in 1983. Since striking it rich in the tech industry, Henry Nicholas has spent tens of millions of dollars getting it onto the ballot in states across the nation. In Florida he — and a non-profit founded by him — donated more than $37 million towards convincing Floridians to pass it, according to state campaign finance records.

Debate Over The Merits Of Marsy's Law

No group ever registered with the state to oppose the measure but civil rights groups like the American Civil Liberties Union were staunchly opposed to it. They worried that it pitted “victims’ rights against defendants’ rights” in a way that would impact the constitutionally-protected rights of defendants in a criminal court setting.

The vast majority of sheriffs, state attorneys and public defenders in Florida were aligned against adding Marsy’s Law to the Florida Constitution for these reasons. The general consensus was that nothing was broken in the first place that required drastic changes. But along with then-Gov. Scott and former Republican Gov. Jeb Bush, a few prominent Democrats supported the measure.

Miami-Dade State Attorney Katherine Fernandez Rundle and Hillsborough State Attorney Andrew Warren — both Democrats — were supportive. And Democratic State Sen. Lauren Book, of Broward County, became one of the most prominent supporters.

Book was a victim of childhood sex abuse and has since made a name for herself by championing children’s welfare, sex abuse victims and women’s rights.

“Having to go through that process is a very very difficult, painful one, and one in which your rights are not the same as the perpetrator of the crime. And so I’ve always stood very strong with the victims of crime and making sure that it is an easier process and journey for them,” she told WLRN.

Book told WLRN that it is an “overbroad interpretation” that courts have taken by looping police officers, involved with deadly shootings, into the definition of a crime victim under the amendment she supported.

“That was not the intention, nor in my belief what the amendment said, and not what the voters voted on,” she said. “We want to stand with victims of crime, and I don’t know that that extends to law enforcement who are involved in shootings or things that happen in the course of their jobs.”

In 2019, Book introduced a bill that would have specified law enforcement officers were not able to shield their names from release for things that happen on the job. The bill never got a hearing, and she never reintroduced it in the 2020 or 2021 legislative sessions. Yet, she said, behind the scenes it is something she has pushed for. Book was recently made the leader of Democrats in the Florida Senate.

“This is something that we’ve continued to bring up and try to have multiple hearings on, workshops on,” said Book. “As a Democrat in the Legislature you don’t necessarily get to dictate the things.”

Coxe, who pushed against Marsy’s Law in the Florida Constitution Revision Commission, sees politics as the main motivation for why people supported Marsy’s Law, despite the red flags raised by himself and others.

Unlike Constitution Revision Commissions of the past, the 2018 commission included many elected officials who were still serving in public office. This created, he said, perverse incentives. There was simply no reason to make such drastic changes to the victims’ rights in the state constitution “unless you were trying to market yourself and others to the public for political reasons.”

“That’s all — that’s the only reason you would want to do it. It doesn’t help anything except make you look good,” Coxe said. “All you gotta do is say we need to protect victim’s rights, march a bunch of children in — like they did with their families — wear t-shirts saying ‘we’re victims’ and the party’s over. And you lose the analytical approach to the whole issue.”

A Warning From The Dakotas

By the time Floridians were getting ready to vote on it, Marsy’s Law was already impacting police accountability in another part of the nation.

In September 2018 a South Dakota Highway Patrol trooper shot and killed 21-year-old Kuong Gatluak during a roadside stop. The trooper claimed Gatluak was attacking them and going for their gun, classifying the trooper as a victim and preventing their name from being released. A similar situation happened that November in South Dakota, with the officer’s name being prevented from release under the protection of Marsy’s Law.

In neighboring North Dakota, the Grand Forks Herald reported in mid-2018 that at least eight officers had claimed privacy protections since voters approved the initiative in 2016, the same time South Dakota passed it.

“It passed pretty overwhelmingly because you know the idea of victims rights is something a lot of people can latch onto. Of course you don’t want victims to have to suffer any more,” said Janna Farley, the communications director of the American Civil Liberties Union of the Dakotas.

The unintended consequences of Marsy's Law quickly became apparent, and not just for police shootings or use-of-force incidents. In South Dakota, Marsy’s Law automatically granted privacy protections to victims of crime, without any opt-in mechanism. This meant that police had a harder time getting crime tips from the public, since basic information could not be shared about where crimes even took place.

It was bad enough that the Legislature flirted with entirely repealing Marsy’s Law from the South Dakota state constitution. In the end they opted to amend the constitution once again to address the problem.

As it stands now, police can still block their names from being released in officer-involved shootings, an interpretation Farley disagrees with.

“Public servants entrusted with the use of deadly force — police should be held to a higher standard of accountability and transparency,” said Farley. “That’s just another reason why states should be leery of adopting Marsy’s Law.”

Thrown Off The Ballot, Then A Reversal

Courts in both Montana and Pennsylvania have struck down the entirety of Marsy’s Law due to the fact that it changed too many things at the same time under a single ballot item.

In Florida, the idea of putting many things into a single ballot item was taken to an extreme. The expansive Marsy’s Law provision itself wassandwiched together with two other questions on a single question, a practice by the Florida Constitution Revision Commission which remains controversial. The other questions on the ballot item referred to the retirement age of state judges and how courts should interpret laws and rules of state agencies.

If it went through the regular ballot initiative process through a citizen initiative, or through the Legislature, this “bundling” of different questions would not have been allowed under the Florida Constitution.

A judge tossed the entire bundled question off of Florida ballots in the lead up to the 2018 election over concerns that it was “misleading” for voters. Leon County Circuit Court Judge Karen Gievers worried voters did not know they were decreasing the rights of the accused at the same time they increased the rights of victims. The existing language in the constitution provided that a victim had a right to be heard in a court setting “to the extent that these rights do not interfere with the constitutional rights of the accused.”

Marsy’s Law deleted those words from the constitution.

“The problem lies not in what is said but what is not said,” wrote Gievers. “[The language] does not disclose that the chief purpose of revision 6 is to take away or reduce the protection the present Florida system provides an accused in criminal proceedings.”

The Florida Supreme Court overruled Gievers and allowed Marsy’s Law to be placed on the ballot. Florida voters passed it with nearly 62% support.

Impact On Police Accountability Could Be Lasting

In a statement, Marsy’s Law for Florida, the nonprofit that funded the initiative once it was put on Florida ballots, said prosecutors act as a backstop for the public interest and police accountability.

“In no way does Marsy’s Law shield police officers from accountability. If after an investigation, a determination is made that a police officer has broken the law, they become the accused and lose all their rights as a victim under the Florida Constitution,” said spokesperson Jennifer Fennell. “At that point, their name must be released. To not do so in these types of cases would be a violation of Florida Sunshine Law.”

The prospect that state attorneys have to file charges against police officers — an exceedingly rare occurrence — in order to get information that would have been public before 2018 is preposterous, said Coxe.

“The access by the public to records and information is one of the cornerstones of democracy,” he added.

As the impact of Marsy’s Law on police accountability and public transparency become more apparent, Coxe feels a bit “I told you so” about the situation.

If the Florida Supreme Court decides to take up the case out of Tallahassee, and they uphold the appeals court ruling, the names of officers involved in shootings and use-of-force incidents across the state could be blocked from release. And if that happens, Coxe said the prospect of police accountability will be forever changed in Florida.

“Does anybody think this Legislature is even remotely capable of putting on the ballot that — after a court says that police are protected and their identity is protected by Marsy’s Law — to put on the ballot that they shouldn’t be?” he asked with an incredulous laugh. “Not this Legislature. It’s just the reality of the world we live in. It’s not gonna happen.”
Copyright 2021 WLRN 91.3 FM. To see more, visit WLRN 91.3 FM.

Daniel Rivero is a reporter and producer for WLRN, covering Latino and criminal justice issues. Before joining the team, he was an investigative reporter and producer on the television series "The Naked Truth," and a digital reporter for Fusion.