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Police transparency is at stake in Supreme Court showdown over Marsy’s Law

Two new clouds are casting shade over the Sunshine State. It’s not the beaches and golf courses that are darkening; rather, Florida’s historic commitment to open government. Both cases exemplify the unwritten law of unintended consequences.

The more menacing is a misinterpretation of Marsy’s Law, a 2018 constitutional amendment intended to guarantee certain specified rights for crime victims and their families. Florida judges have used the law to allow police departments to conceal the names of officers who fatally shot people they said were attacking them.

Two Tallahassee officers involved in separate fatal shootings, both ruled justified, sued the city to prevent public disclosure of their names. Their attorneys at the Police Benevolence Association argued the officers were crime victims and therefore protected under Marsy’s Law.

A judge ruled against the officers but the First District Court of Appeal reversed the ruling in favor of withholding their identities from the public, setting up a showdown in the Florida Supreme Court in a hearing set for Wednesday. 

If the Supreme Court rules with the officers, it will give bad cops a license to kill with no accountability to the public. It will invite misconduct and cover-ups in a state where there have been more than 500 fatal shootings by police since 2015, according to a count by the Washington Post

The second issue owes to the Legislature’s weakness for humoring public officials who resent Florida’s public records and open meeting laws. This year it agreed to conceal the names of most applicants for college and university presidencies, leaving only the “final group” to be revealed.

That was bad enough in that it prevents students, faculties and the public from judging the process and learning how seriously the search committees take their responsibility. It got worse when applicants discovered how to game it. 

In two prominent cases — at the University of Florida and Florida International University — that “final group”” consisted of only one person. None of the leading candidates agreed to continue except as the sole finalist. It remains secret who else might have been finalists.

At UF, the concealment contributed to the faculty and student protests against the selection of Ben Sasse, a Republican senator from Nebraska. The bill’s sponsor, Sen. Jeff Brandes, R-St. Petersburg, said such secrecy is not what the law intended. But he’s gone, term-limited, and no one else has volunteered to fix it.

The Senate had a superficial staff report to explain the bill. So did the Constitution Revision Commission, before it put Marsy’s Law on the 2018 ballot. Neither analysis asked, “What could possibly go wrong?””

Florida didn’t need Marsy’s Law. It had a 1989 victim’s rights amendment, the nation’s first, under which the Legislature had enacted some 30 specific provisions.

But that didn’t satisfy Henry Nicholas III, a California billionaire whose family had encountered his sister’s accused murderer out on bail with no notice to them. He’s successfully lobbied Marsy’s Law in 13 states and aims to make it universal.

The law has led to absurd consequences. South Dakota, for one, had to amend its constitution a second time to allow police to identify crime scenes when it might generate tips from the public. Currently, Palm Beach deputies are asking the public’s help in solving a highway shooting without saying who the victim is.

The key issue in Florida is that here, Marsy’s Law establishes an automatic right for crime victims to be “reasonably protected” from the accused. That means withholding records “that could be used to locate or harass the victim or the victim’s family.” No request by the victim is required and law enforcement agencies are now withholding the names of victims — who are often accusers in criminal cases — as standard operating procedure.

Police departments statewide have stretched it so far as to automatically withhold the names of victims even in single-car accidents where no crime is suspected. The Florida Highway Patrol says the names eventually appear in official reports. 

But cases involving keeping secret the names of police officers involved in fatal shootings, be they justified or not, are perhaps the most egregious misuse of Marsy’s Law of all.

Lawyers representing the City of Tallahassee in the case headed to the Supreme Court on Wednesday argue that the law “was not designed to create a secret police force.” It is illogical, they contend, to equate police with crime victims and they note officers already have special protections prescribed in other laws.

The First District Court of Appeal invoked a hyper-literal interpretation of the word “persons” in the Tallahassee case and argued that internal affairs departments and grand juries provide the public sufficient protection against rogue officers.

That is debatable, to put it mildly. In a friend-of-the court brief, the City of Miami Citizen Investigative Panel (CIP), an official agency that provides independent oversight to the Miami PD, explained why.

“The primary reason the CIP is effective,” its brief states, “is because the public perceives [its] investigation and review process as transparent and relies on the CIP to be objective and forthcoming in ways they perceive other mechanisms, such as internal affairs investigations and litigation, are not.””

Seven news media organizations, including the Florida Center for Government Accountability, have also filed friend of the court briefs in support of disclosing the officers’ identities, as have two sheriffs — Bob Gualtieri of Pinellas County and Michael J. Chitwood of Volusia.

Conspicuously missing is any input from Attorney General Ashley Moody, whose office compiles an annual manual on Government in the Sunshine. She should also be defending it. So should the Legislature.

About the author: Martin Dyckman retired in 2006 from the St. Petersburg Times, where he wrote primarily about government and politics for 46 years as a reporter, state capital bureau chief and editorial writer. He lives in Asheville, NC, where he continues to observe Florida politics and writes editorials on assignment from the South Florida Sun Sentinel.