Las Vegas POA

Florida Statute Shields Officers’ Names From Disclosure After Officer Involved Shooting

Written on 06/05/2021
Will Aitchison

In two separate encounters, crime suspects threatened Tallahassee police officers with violence. Faced with the imminent threat of harm, the officers responded with force, resulting in fa­talities. Following the encounters, the City of Tallahassee revealed its intent to disclose the identities of the police officers to the public.

The officers and their union, the Florida PBA, opposed public disclosure of the officers’ identities and sought a declaration from the trial court that the officers were entitled to the protections granted crime victims under the Florida Constitution. When a trial court rejected the PBA’s arguments, the PBA challenged the decision in the Florida Court of Appeals.

The Court’s decision turned on the definition of “victim” in a “victim’s rights” section of the Florida Constitution called “Marsy’s Law.” Marsy’s Law provides victims certain rights such as: (1) the right to due process and to be treated with fairness and respect for the victim’s dignity; (2) the right within the judicial process, to be reasonably protected from the accused; and (3) the right to have the safety and welfare of the victim and the victim’s family considered when setting bail. The opposing constitutional force in the case was Article I, section 24(a) of the Florida Constitution, which provides that “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 under this section or specifically made confidential by this Constitution.”

The Court found that the two con­stitutional provisions could be reconciled without conflict. The Court noted that Marsy’s Law was added to the Constitu­tion in 2018, 26 years after the “right to know” provision. The Court found that the express terms of the right to know provision did “not provide that all public records are subject to disclosure. Rather, the text acknowledges the right of the people of Florida to amend their consti­tution to grant confidentiality for public records ordinarily subject to disclosure.

“The express purpose of Marsy’s Law is to preserve and protect certain rights of crime victims. 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. And thus as a crime victim, such an officer has the right to keep confidential ‘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.’

“Nothing in Marsy’s Law excludes law enforcement officers – or other gov­ernment employees – from the protections granted crime victims. And no language in either constitutional provision suggests that public records related to government employees ordinarily subject to disclosure are not entitled to confidential treatment under Marsy’s Law when a government employee becomes a crime victim.

“This 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. Nor would it prevent a state attorney from reviewing the facts and considering whether the officer was a victim. If a prosecutor determines that the officer was not a victim and instead charges the officer for his conduct, then the officer would forfeit the protections under Marsy’s Law.

“Contrary to the trial court’s con­clusion about the text of Marsy’s Law, information that could be used to locate or harass the victim or the victim’s family includes records that could reveal the vic­tim’s name or identity. This construction of Marsy’s Law aligns with other provisions of Florida law that treat as confidential records that could reveal a victim’s iden­tity. For example, the Florida Legislature exempted from disclosure public records that could reveal the names of certain crime victims. We reverse the trial court’s order directing the City to disclose public records that would reveal the identities of the two officers.”

Florida PBA v. City of Tallahassee, 2021 WL 1257869 (Fla. Dist. Ct. App. 2021).

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