Citing Marsy’s Law, Tampa withholds names of officers who shot robbery suspect

The Tampa Police Department says the two officers who opened fire on 26-year-old Dominque Mulkey invoked their rights under the constitutional amendment.
A Tampa Police forensic unit arrives near the scene Tuesday where officers fired on 26-year-old armed robbery suspect Dominque Mulkey, killing him. The department is withholding the names of the officers because they invoked their Marsy's Laws rights, a spokeswoman said.
A Tampa Police forensic unit arrives near the scene Tuesday where officers fired on 26-year-old armed robbery suspect Dominque Mulkey, killing him. The department is withholding the names of the officers because they invoked their Marsy's Laws rights, a spokeswoman said. [ DOUGLAS R. CLIFFORD | Times ]
Published Oct. 22, 2020|Updated Oct. 22, 2020

TAMPA — The Tampa Police Department is citing Marsy’s Law in declining to release the names of two officers who opened fire on an armed robbery suspect this week, killing him.

The officers fired on 26-year-old Dominique Mulkey when he refused to drop a handgun after robbing the Dollar General at 3110 N 50th St. on Tuesday morning, according to police. At least one of the officers' rounds hit Mulkey, fatally wounding him.

Police Chief Brian Dugan declined to release the officers' names at news conference on Tuesday. When the Tampa Bay Times asked for their names Wednesday, police spokeswoman Jamel Laneè said the department was withholding the names because the officers invoked their rights under Marsy’s Law, an amendment to Florida’s constitution passed by voters in 2018.

Police initially said Mulkey refused to drop the gun and turned toward the officers, prompting them to fire. But Laneè said in an email Wednesday that video from one of the officers’ body cameras shows Mulkey “pointed/raised his gun at" the officers.

When he did, Laneè said, “they became victims of aggravated assault with a firearm.”

The case is the latest in which Marsy’s Law has shrouded information about a deadly police shooting that had previously been available under Florida’s public records law.

Related: Florida cops who use force keep names secret with Marsy’s Law

In providing an account of the shooting Tuesday, Dugan used store surveillance footage, audio from a 911 call and video from a body camera one of the officers was wearing.

Mulkey was carrying a handgun and a black trash bag when he walked into the Dollar General store at 3110 N 50th Street about 9:20 a.m. He filled the bag with items including a box of Cheez-its and Ruffles potato chips and was confronted by two store clerks.

The clerks took the bag from his hands and began to walk away, according to store surveillance footage shown by police. Mulkey pulled out the handgun, Dugan said, and threatened the clerks. They gave the bag back to him. One of the clerks called 911.

Within five minutes of the call, the two officers arrived and spotted Mulkey walking north along N 50th street, carrying a black bag.

In the video, an officer orders Mulkey to get on the ground and show his hands. Mulkey drops the bag and continues walking away, then turns back toward the officers. The officer wearing the camera can be heard ordering him to “drop the gun" and warning the other officer, “He’s got a gun.” Dugan said when Mulkey turned back towards the officers, gun in hand, they started firing.

Laneè said that after turning around, Mulkey appears to raise his arms and point the gun in the officers’ direction.

In the video, Mulkey starts running away after one or both officers open fire, then turns around again just before the segment released by Tampa police ends.

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According to Dugan, one of the officers is 48 and has been a Tampa officer for 25 years. The other is 24 and was hired two years ago. Neither had been involved before in a shooting incident while on duty. Both have been placed on administrative leave, pending the results of the investigations.

The Florida Department of Law Enforcement is investigating the officers' actions. It’s the first time the department has investigated a Tampa police shooting since Dugan announced that his department would join other local agencies in having the state agency take over investigations of fatal officer shootings and in-custody deaths.

Marsy’s Law includes the right “to prevent 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.”

Since the law took effect in 2019, law enforcement agencies in Florida have cited the measure as they withhold names of officers who become victims of what may be a crime while they use force on the job, in some cases lethally.

Supporters of this approach say officers deserve the same rights as the general public. Open government advocates and other critics say the public has a right to know the identities of law enforcement officers who use force in the line of duty.

The Pasco and Hernando sheriffs' offices are among local agencies that apply the amendment to personnel who become victims of possible crimes in the line of duty. The St. Petersburg Police Department will withhold officers' names upon their request.

After one of his deputies fatally shot a man during a standoff Wednesday, Hernando Sheriff Al Nienhuis said the office may release the name of the deputy who fired the fatal shot, saying the deputy is not subject to Marsy’s Law because it appeared the man never pointed a rifle at him as he did the team that moved in to arrest him. The office released the deputy’s name Thursday. He is Brian Schneider Jr., 42, a 10-year veteran of the office.

Pinellas Sheriff Bob Gualtieri and Hillsborough Sheriff Chad Chronister are among local leaders who routinely release the names of deputies using force in the line of duty, citing the need for transparency.

Dugan has said he also believes the names of officers who use force on the job should be released but he must respect officers' Marsy’s Law rights. His practice is to ask the officers if they wish to invoke their rights.

After the Jan. 13 shooting of Wayne Wilson, the two Tampa officers who initially declined to waive their Marsy’s Law rights changed their minds. In the April 28 shooting of Jonas Joseph, four of the five officers who fired their weapons agreed to have their names released. The name of the fifth officer remains undisclosed.

Master Patrol Officer Darla Portman, president of the Tampa Police Benevolent Association, said the right to remain anonymous during a “cooling-off period” after a shooting or other use-of-force incident is valuable for officers who can later provide permission for their names to be released.

In a year roiled by protests and violence against law enforcement personnel at their homes in other parts of the country, officers now have a heightened sense of concern about their safety, Portman said.

She cited the case of Joseph Mensah, a police officer in Wauwatosa, Wisc., who fatally shot 17-year-old Alvin Cole at a mall in February. In August, protesters showed up at the home of Mensah’s girlfriend and, during a confrontation with Mensah and the girlfriend, one man fired a shotgun, hitting the house, according to news reports. Two men were later arrested and charged in the incident.

“In this atmosphere, officers are worried about getting retaliated against,” Portman said.

Portman said the officers in the Mulkey shooting would have been justified in opening fire regardless of whether he pointed the gun at them.

“If he’s turning with a gun in his hand, we don’t wait for him to point directly at us before we shoot,” she said. “Then it could be too late and we could have a dead officer."