State

Does Marsy’s Law Apply to Police Officers?

On May 27, Tony McDade, a transgender Black man, was killed by police after allegedly pointing a gun at an officer. This sparked not only continued discussion of policing and race in America, but also discussion of Marsy’s Law.

Marsy’s Law was passed by Florida voters as a part of the constitutional Amendment 6 in 2018. According to the law’s proponents, it seeks to solidify victims’ rights in the state. These rights include privacy and protection for the accused as well as the right to have certain information or records withheld.

The Florida Police Benevolent Association (PBA) argues that the police officers involved in the shooting of McDade are victims of aggravated assault warranting the protection of Marsy’s Law. This would include the withholding of their names to the press and public.

The Florida PBA originally asked for an emergency court order, or injunction, to withhold the officers’ names from the public. Leon County Circuit Judge Charles Dodson denied the injunction on June 4, stating that he could not find a clear controversy and that the Florida PBA had not followed the proper procedure. Stephen Webster, the lawyer representing the Florida PBA, said that this was due to the city of Tallahassee’s unclear stance on the issue.

As The Tallahassee Democrat reported, the city at first sought only clarification of how to fulfill public records requests surrounding the case before later taking a position against considering the officers as victims under Marsy’s Law. Judge Dodson also recommended that the city of Tallahassee inquire State Attorney Jack Campbell or Attorney General Ashley Moody about the constitutionality of Marsy’s Law.

On June 6, city leaders and Tallahassee Police Department leaders met to discuss the matter. There was disagreement, and 100 police officers who had been in attendance walked out.

By Sunday June 7, the city had agreed to wait until June 12 to release the names of the officers to give the Florida PBA time to file another lawsuit. On June 12, the Florida PBA filed a new complaint requesting the withholding of the officers’ names, as well as a declaratory judgement that would state that police officers who have become victims of crimes can invoke Marsy’s Law.

Webster argues that the Florida public voted in 2018 for the broad definition of victim that Marsy’s Law includes, a definition which he points out does not exclude police officers.

He said the officer identified as John Doe 2 who shot McDade acted only to defend his own life. “And now he has to live with that for the rest of his life: the horror of having his life threatened, the horror of having to take another person’s life just to defend his own life all because this person was a murderous, homicidal, suicidal maniac,” Webster said.

The city of Tallahassee disagrees.

As the city’s attorney Cassandra Jackson explained to The News Service of Florida, the city of Tallahassee does not believe that Marsy’s Law should apply to police officers acting in their official capacity. She argued that as shown in Florida’s wiretapping law, police officers have different standards of privacy and should not have their names withheld as victims under Marsy’s Law.

The city has also said that Marsy’s Law is not applicable to the officers because this incident, like all officer-involved shootings, is under investigation. The officers involved, the city argues, cannot be both the victims and those under investigation as the accused.

Mutaqee Akbar, the attorney who represents the family of McDade, argued that not releasing the names of police officers impedes transparency surrounding the case.

Although Akbar is not directly involved in the legal dispute over whether to release the names of the officers, he is pursuing the release of police body camera footage of the incident on behalf of McDade’s family.

“I don’t believe that the intent of Marsy’s Law was intended to protect law enforcement officers who are doing their job and not being you know quote-on-quote victimized as a citizen, as a civilian,” Akbar said. Akbar said that applying Marsy’s Law to police officers could be a “slippery slope” that could lead to more confusion over who is a victim under Marsy’s Law.

In a statement, Marsy’s Law for Florida, the organization that pushed for Marsy’s Law in 2018, said, “The Florida Constitution does not distinguish victim status between members of the public and police officers so any citizen can be a victim of a crime, even if they are a public employee.” The statement went on to say, “However, the Marsy’s Law provision of the constitution is clear when it says that the accused cannot also be a victim.”

In the two years since the passage of Amendment 6, law enforcement agencies across the state have disagreed about how to carry out Marsy’s Law. The current legal dispute surrounding whether Marsy’s Law applies to police officers could set a precedent.

Featured image: Tallahassee Police in 2018. (Unmodified photo by HAH Photography used under a Creative Commons license. https://bit.ly/2CToHvh)

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