TAMPA — A Florida court ruling allowing officers to keep their names secret from the public is reverberating across state law enforcement agencies and sparking calls for the Legislature to act.
The recent appellate court decision comes as a succession of deadly police encounters nationwide fuels calls for greater transparency. Critics of the ruling include some local law enforcement leaders, who say it takes Florida in the wrong direction and shields officers from scrutiny.
Withholding officers’ names creates a sweeping new exemption in Florida’s public records laws and prevents the public and media watchdogs from looking for troubling patterns in the personnel files of police who use force on the job, said Pamela Marsh, president of Florida’s First Amendment Foundation. This includes incidents like those found in the files of Derek Chauvin — the former Minneapolis police officer convicted this week for the murder of George Floyd.
Floyd’s death happened in broad daylight, with officer body cameras rolling and witnesses recording on mobile phones. The public should worry about interactions not so well-documented, Marsh said.
“I think if a similar situation happened in Florida right now, if there had been no one on the street with a camera, if it had happened in the dark and no one had filmed it, we wouldn’t know the officer’s identity at all,” Marsh said.
The unanimous ruling this month by the First District Court of Appeals extended the reach of Amendment 6, better known as Marsy’s Law. The amendment was approved by Florida voters in 2018 with the intent to protect the identity of crime victims, among other rights.
The court’s ruling broadened those protections to police officers who are assaulted or threatened in an encounter that results in a deadly shooting or other incident. Under the ruling, officers who injure or kill can choose to withhold their names from the public, and their agencies must comply.
The ruling has driven some law enforcement leaders to retool their protocols.
Among them is Pinellas Sheriff Bob Gualtieri, who had previously cited the need for transparency in refusing to apply the law to deputies who use force in the line of duty. Gualtieri, who is also a lawyer, said the appeals court ruling is correct legally but bad policy.
“The lack of transparency breeds suspicion, and suspicion breeds contempt,” Gualtieri said, “and when people don’t know, it is not a good situation, and it leads to more problems than it solves.”
Patchwork of protocols
Passed by 62 percent of Florida voters, Marsy’s Law was modeled after a measure that originated in California. It’s named after Marsy Nicholas, a University of California senior murdered by her ex-boyfriend in 1983. At least 12 states have passed some form of it.
Marsy’s Law prevents “the disclosure of 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.”
The amendment didn’t specify whether the confidentiality provision is automatic or if victims have to request the protection. Nor did it list any exemptions. So law enforcement leaders developed their own procedures, creating inconsistent protocols across Florida.
Sheriffs in Pinellas and Hillsborough counties, for example, decided not to apply Marsy’s Law to on-duty personnel. Sheriffs in Pasco and Hernando counties, in addition to Tampa police Chief Brian Dugan, have said they are bound to do so.
USA Today and ProPublica reported in October how Florida agencies sometimes use the law to withhold names of officers under questionable circumstances. The report found that among the states that have passed some form of the law, only in Florida, North Dakota and South Dakota can officers use it to keep their names confidential.
Disputes over conflicting interpretations of the law are making their way to Florida courts. The case that led to this month’s appeals court ruling was seen as the first major test.
The case stemmed from a fatal shooting last May in Tallahassee, where two officers identified only as John Doe 1 and John Doe 2 shot and killed Natosha “Tony” McDade, a Black transgender man.
The Florida Police Benevolent Association sued the city of Tallahassee to block release of the officers’ names, along with the name of another officer involved in a separate case. The union asserted that Marsy’s Law applied because they were victims of aggravated assaults by the armed suspects they killed.
The First Amendment Foundation, the Florida Press Association and a number of media organizations intervened in the lawsuit, arguing that allowing Marsy’s Law to apply to officers would undermine the state’s open-records laws.
A circuit court judge ordered the city to release the names, but the appellate court overruled him, finding that nothing in the amendment “excludes law enforcement officers or other government employees from the protections granted crime victims.”
The public can still hold officials accountable for misconduct, wrote appellate Judge Lori Rowe, because keeping names confidential “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.”
The organizations that intervened in the Tallahassee case are reviewing next legal steps, said Mark Caramanica, an attorney for the group. (Caramanica is a partner at the Tampa firm that represents the Tampa Bay Times.)
Some law enforcement advocates hailed the ruling. They say transparency remains intact because if investigations reveal that an officer wasn’t a crime victim after all, they cannot shield their identity.
“If it is found that an officer has broken the law, they are no longer entitled to rights or protections under Marsy’s Law,” Paul Hawkes, a former 1st District Court of Appeal judge who now serves as counsel for Marsy’s Law Florida, wrote this week in a column for the South Florida Sun-Sentinel. “Their name can, and should be, released publicly — same as anyone else accused of a crime.”
Critics say this rationale requires the public to trust a system of accountability. But not all agencies have robust internal affairs divisions, and officers are rarely prosecuted. Those who use force routinely claim they were attacked by a suspect or threatened with a weapon, making them victims of an assault. If there are no cameras or witnesses, and a suspect is killed, investigators may have little evidence beyond the officer’s account.
Marsh, with the First Amendment Foundation, noted that even before Marsy’s Law, complaints against law enforcement and information from an investigation into an officer were exempt from disclosure under Florida’s public records law. Grand jury proceedings also are confidential.
When those investigations are over, information such as an officer’s name typically becomes public record, though the law allows for their addresses to be withheld. Under Marsy’s Law, the names in some cases will not come out if investigators conclude an officer acted legally.
“Only by knowing Derek Chauvin’s name were the press and public able to research his record and find out that he had over a dozen other misconduct complaints on his record before George Floyd,” Frank LoMonte, director of the Brechner Center for Freedom of Information at the University of Florida, told the Orlando Sentinel this month.
In a Tampa case from November, two police officers shot 26-year-old Dominique Mulkey during an armed robbery call at a Dollar General store. Hillsborough State Attorney Andrew Warren found their actions were justified, because Mulkey was holding a gun and appeared to point it in the officers’ direction, but Warren, like Tampa Chief Dugan, withheld the officers’ names, saying he was bound by Marsy’s Law.
In emailed comments to the Times for this story, Warren, who supports Marsy’s Law, said he doesn’t think withholding the names of officers who use force keeps with the spirit of the amendment.
“At a certain point, an officer goes from being a victim to being a sworn officer of the state, acting on behalf of the community, and if we want to rebuild trust with the community, that officer’s name should not be withheld,” Warren said.
Unions, including the Tampa Police Benevolent Association, have said the law protects officers and their families from being targeted, and that the need for protection is greater than ever with tensions between law enforcement and the public so high.
Leaders like Gualtieri and Volusia County Sheriff Mike Chitwood contend that officers sign up for a job that’s inherently dangerous.
“We are paid by our taxpayers, we are paid to represent our community, we drive around in a big marked car that says ‘police’ or ‘sheriff’ on it,” Chitwood said in a First Amendment Foundation podcast in September. “You wear this uniform and now you want to hide your identity? “The only way you want to hide your identity is if you’re doing something you shouldn’t.”
Tampa Bay agencies adjust
Florida’s nearly 400 law enforcement agencies should review and, if necessary, revise policies to recognize on-duty officers’ right to have their names withheld, said David Marsey, general counsel of the Florida Police Chiefs Association.
Marsey estimated that about half the association’s members have applied Marsy’s Law to on-duty officers. He said the association “continues to support legislative clarification on the ambiguities of Marsy’s Law.”
Barring appeals or legislative action, the appellate court ruling takes effect in May.
“Once that decision becomes effective in 30 days, I’m obligated to follow the law, and I will follow the law because I have to, not because I like it or want to,” said Gualtieri, who also encouraged lawmakers to address the law.
Hillsborough Sheriff Chad Chronister said in emailed comments that, until the appeals court ruling is final, he will continue advising deputies’ that their names and pertinent employment history will be released to the public “in the interest of transparency.”
“While the opinion of the First District Court of Appeal is not yet final, we will continue to remain as transparent as possible with the community until a concrete legal decision is reached,” Chronister said.
Clearwater police Chief Dan Slaughter, who also opted not to apply the law to his officers, is bringing his procedures in line with the new ruling, he said in an email. The St. Petersburg Police Department will continue honoring officers’ wishes if they invoke Marsy’s Law rights, Chief Anthony Holloway said.
Tampa Chief Dugan said the appeals court ruling confirmed his department’s application of the law, but he will continue to ask officers involved in use of force incidents whether they will allow him to provide their names to the public.
“I still think that when a police officer acts under the color of law, we should be able to release their name,” Dugan said.
With this year’s legislative session nearly over, any action on the law likely would have to wait until next session.
State Rep. Cord Byrd, a Neptune Beach Republican who chairs the House Judiciary Committee, questioned whether the Legislature could alter the definition of a victim that Marsy’s Law has enshrined in the Constitution.
“Because it is defined in very specific terms, I’m not certain that we could do it by statute,” Byrd said.
Rep. Fentrice Driskell, a Tampa Democrat and ranking member on the Judiciary Committee, said two conflicting court rulings is a signal for lawmakers to act.
“I think that’s the time, under the traditional role of a legislative body,” Driskell said, “that you would expect them to intervene and provide clarity.”