In a November 30, 2023, ruling that will have sweeping impact on the public’s ability to conduct oversight over law enforcement action, and more generally better monitor crime in local communities, the Florida Supreme Court held that the Florida constitutional provision known as “Marsy’s Law” cannot be used to shield the names of crime victims, including on-duty law enforcement officers, from public review. In its 27-page order, the Court declared that “Marsy’s Law guarantees to no victim—police officer or otherwise—the categorical right to withhold his or her name from disclosure.” The opinion reversed a decision of the First District Court of Appeal, which had determined, not only that victims’ names could be secreted, but also that police officers could also use the law to maintain anonymity when involved in deadly use-of-force incidents while on-duty.
The underlying lawsuit was filed by the Police Benevolent Association (“PBA”) and two “John Doe” police officers who sued the City of Tallahassee to prevent the disclosure of their names. Both officers had been involved in separate on-duty police shootings resulting in the deaths of two civilians. The PBA and officers argued that because the officers were threatened with deadly force, they were assault “victims” under Marsy’s Law, which contains a provision that allows a “victim” to prevent the disclosure of information that could be used to locate or harass them.
Representing the First Amendment Foundation, Florida Press Association, Gannett Co., Inc., the McClatchy Company, and The New York Times Company, TLo lawyers argued that Marsy’s Law does not permit the names of any victim to be withheld because the text of the provision did not explicitly shield identifying information. They also argued that the PBA’s interpretation of Marsy’s Law would eviscerate the public’s constitutional right to access public records and scrutinize police actions. Moreover, such an interpretation contradicted the purpose of Marsy’s Law and would undermine the public’s well-established First Amendment right to gather information about official police activity in public. In this case, the news media coalition was joined with the City of Tallahassee, which also took the position in the litigation that the officer names should not be protected under Marsy’s Law.
The Court agreed. It held a victim’s name does not qualify as information that could be used to “locate or harass” the victim because a name “communicates nothing about where the individual can be found and bothered.” Moreover, it cited to numerous constitutional and statutory provisions, including those in Florida’s Public Records Act, that explicitly specified when a person’s “identity” must be protected, explaining that the word “identify” is conspicuously absent from the text of Marsy’s Law. Finally, it explained that withholding the victim’s name would contravene a criminal defendant’s right to confront his/her accuser in court.
“Today’s decision is a win for government transparency,” said TLo attorney Mark Caramanica, who represented the media coalition, along with Carol LoCicero and Daniela Abratt-Cohen. “The Court applied a common sense approach to interpreting Marsy’s Law that reins in overzealous applications that hide newsworthy information from the public. In this case, the issues could not have been weightier and the Court’s ruling prevents police officers from shielding their names when on-duty shootings occur.”
With offices in Tampa and Fort Lauderdale, Thomas & LoCicero is a Florida law firm that is widely known, respected and committed to free speech and a free press. The firm represents leading electronic and traditional publishers. Thomas & LoCicero also counsels clients in a variety of industries in intellectual property, marketing and advertising matters and litigates business, defamation, trademark, copyright and privacy cases.