We’ve written plenty about what the Florida Legislature should not be doing this year.
Here’s something it should be doing: Closing a loophole that now keeps police officers’ identities a secret when they use force — including deadly force.
The loophole exists thanks to a state constitutional amendment, best known as Marsy’s Law, that was ostensibly intended to benefit victims of crimes in various ways. Crime victims already had ample protections under Florida law, but a California billionaire whose sister was murdered has been going around persuading states to enshrine protections into state constitutions — a dozen of them so far.
It wasn’t difficult to see that Marsy’s Law was rife with unintended consequences, one of which is the dramatic new level of secrecy given to police who use force against the public.
The reason? Florida’s Marsy’s Law amendment says anyone who is a victim of a crime has the right to have their name and personal information withheld from the public. Police who use force against the public could theoretically claim in nearly every instance that they were the victims of some type of assault. So, as victims, they would be entitled to the same anonymity as anyone else.
If Minnesota had a Marsy’s Law like Florida’s, Minneapolis Officer Derek Chauvin could have claimed he was a victim of George Floyd, which means his identity might have remained a secret long after he killed Floyd. That means the public would have known little or nothing about the cop who knelt on the handcuffed man’s neck for nine minutes, including the fact that Chauvin had 17 complaints filed against him as a member of the Minneapolis Police Department.
It might have come out because of the cellphone recordings that documented what happened to Floyd. Or when Chauvin was charged with murder. Or maybe the secrecy would have altered the course of events that led to Chauvin being brought to justice at all.
The theoretical impact of Marsy’s Law and police accountability just got real, thanks to a recent court ruling.
The First District Court of Appeal decided that the names of two Tallahassee police officers who shot and killed suspects in separate incidents should remain confidential because of the Marsy’s Law constitutional amendment, passed by voters in 2018 with 61.6% of the vote.
In overturning a lower-court ruling, the district court noted that the passage of Marsy’s Law simply created another exemption to Florida’s Sunshine Law.
We’re not lawyers here, but what the court failed to note in its ruling are the breadth and consequences of this new exemption.
Police who use force very often say they do so because someone resisted arrest, threatened an officer or tried to batter an officer. Such charges are routine, almost perfunctory, even if they don’t result in the alleged attacker getting prosecuted, which they often do not.
Nevertheless, that’s unlikely to make the cop any less of a victim in the eyes of Marsy’s Law. And that means the cops’ names stay secret.
The court attempted to reassure the public that police can still be held accountable through internal affairs investigations and prosecutions of officers. But prosecutions of police are rare, and even if an IA investigation find an officer at fault it’s unclear — and increasingly unlikely — that would strip away the that officer’s newfound anonymity protections as victims.
You can expect police unions, like the one that took up the case of the Tallahassee police officers who used deadly force, to press for anonymity as often as possible.
Such a sweeping new exemption to the Sunshine Law means the public will know far less about officers who use force.
For example, the public in 2010 probably wouldn’t have known the name of the young Orlando Police Department officer who threw an 84-year-old World War II veteran, Daniel Daley, to the ground, breaking Daley’s neck. If that had happened today, we might not have been able to report that the officer was Travis Lamont. That’s because Daley, was charged with assault and battery on a law enforcement officer, making Lamont a supposed crime victim. (And no, prosecutors did not pursue the changes against Daley.)
See how this is going to play out?
The Florida Legislature isn’t powerless here. It was perfectly willing to write a law implementing Amendment No. 4, the constitutional amendment giving ex-felons the right to vote.
What’s stopping it from writing legislation to clarify Marsy’s Law and protect the public’s right to know? Nothing, except maybe the fact that lawmakers like to curry favor with law enforcement and the unions that represent police.
That’s why, if a cop breaks another old man’s neck, you’re not going to know who did it. Because Marsy’s Law and the courts say he’s a crime victim. And lawmakers appear to be just fine with that.
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Editorials are the opinion of the Orlando Sentinel Editorial Board and are written by one of its members or a designee. The editorial board consists of Opinion Editor Mike Lafferty, Jennifer A. Marcial Ocasio, Jay Reddick and Editor-in-Chief Julie Anderson. Send emails to insight@orlandosentinel.com.
