In a closely watched case about how to apply a constitutional amendment that expanded victims’ rights, a Leon County circuit judge on Thursday agreed to at least temporarily keep secret the identities of two Tallahassee police officers involved in use-of-force incidents.
Judge Charles Dodson last week decided that the amendment known as “Marsy’s Law,” approved by Florida voters in 2018, doesn’t apply to law enforcement officers and that their names should be released.
The Florida Police Benevolent Association, which represents the officers, immediately appealed Dodson’s ruling and asked that it be put on hold while an appeal moves forward. Dodson agreed during a brief hearing Thursday, saying the officers should be granted an automatic stay because they were acting in their official capacities during the use-of-force incidents.
The police union filed a lawsuit against the city of Tallahassee last month, asserting that the Marsy’s Law amendment applies to the officers, identified in court as “John Doe 1” and “John Doe 2,” because they were victims in the use-of-force incidents. The amendment spelled out a series of rights for crime victims, including a 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.”
While the case was filed on behalf of the two officers, it has exposed a broader conflict between two Florida constitutional amendments: Marsy’s Law and a decades-old government-in-the-sunshine amendment that established one of the nation’s broadest public-records laws.
In his order last week that the officers’ identities should be released, Dodson wrote that the “explicit language of Marsy’s Law was not intended to apply to law enforcement officers when acting in their official capacity” and said the case involved balancing victims’ rights with the “public’s right to hold government accountable by inspecting public records.”
But in arguing for the order to be put on hold while the 1st District Court of Appeal considers the case, Luke Newman, a lawyer representing the union, pointed to an appellate court ruling involving Delray Beach police officers that established on-duty law enforcement officers were entitled to automatic stays “as any public officer in an official capacity.” Government agencies and officials generally are granted automatic stays when they appeal cases.
“I don’t see how we can differentiate” between the Tallahassee case and the Delray Beach decision, Newman told Dodson on Thursday.
But Assistant City Attorney Hannah Monroe argued that an automatic stay isn’t warranted in the Tallahassee case.
“This is a decision of two officers to assert their own private rights,” she said.
The PBA filed the lawsuit after “John Doe 2” shot a black transgender man on May 27. Because the police officer was the victim of an aggravated assault with a deadly weapon in the incident involving Natosha “Tony” McDade, the union says the officer has the right to invoke the privacy privilege provided by Marsy’s Law.
The union also alleged that the city changed its policy for shielding police officers’ identities following the death of George Floyd, a 46-year old black man who died while former Minneapolis police officer Derek Chauvin kneeled on his neck for nearly nine minutes. Floyd’s death has sparked protests against police brutality and racial inequality throughout the country.
The city, however, denies that it changed its policy and maintains that the Tallahassee Police Department developed its own procedure without city officials’ approval.
The First Amendment Foundation, the Florida Press Association and a number of media outlets have intervened in the lawsuit, arguing that allowing Marsy’s Law to apply to law enforcement officers would undercut the state’s open-records laws.
Mark Caramanica, a lawyer who represents the media organizations, told Dodson that Florida’s broad Sunshine laws require that the identities be revealed.
“Public records cases are different, and if you want any kind of continuing stay … you need to move quickly and get that in place. That didn’t happen here,” he said. “The Supreme Court has also said ‘news delayed is news denied,’ and that’s what we have here. We’ve been waiting now months for these records.”
Dodson, however, said the Delray Beach decision required him to side with the union’s request for a stay.
“There were numerous times in there that I referred to officers acting in their official capacity,” the judge said, referring to his order. “I don’t believe I can distinguish that from the Delray Beach case. So I’m going to grant the automatic stay.”
(Disclosure: The News Service of Florida is a member of the First Amendment Foundation and the Florida Press Association but has not been involved in the lawsuit.)
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