Floridians will finally find out the names of two Tallahassee police officers who shot and killed two suspects in separate incidents in May 2020, the same month that Minneapolis police murdered George Floyd.
Late last week, the Florida Supreme Court rejected an effort by a police union to keep the names of the officers secret under a law called Marsy’s Law, meant to protect the privacy of victims. Incredibly, the union argued the victims’ rights law applies to the officers because they claimed to have acted in self-defense when they killed two men in the line of duty.
The decision is a victory for transparency and police accountability efforts. But Floridians must remain vigilant against further efforts by law enforcement to reverse this decision or otherwise evade public scrutiny.
The idea of “secret police” is fundamentally un-American. And when reports of past abuses by Floyd’s killer surfaced after Floyd’s death, it became apparent that the public needs to know the names of officers who kill people. Secret police can’t be held accountable. It’s impossible to track whether they’re disciplined, fired or reassigned. Without officers’ names, the public also can’t identify patterns of misconduct or discover that problematic cops are moving from city to city.
Yet police in Florida and around the country have cited Marsy’s Law to withhold names of officers from the public.
Rejecting the union’s arguments, the Florida Supreme Court noted that the Florida Constitution provides every person with the right to access public records, including police reports. As a coalition of news media organizations asking for the release of the Tallahassee officers’ names explained, allowing the names to be kept secret would be incompatible with this right and would undermine the public’s right to engage in oversight and debate of the police.
But the same day the court released its ruling, the police union was already pushing for a legislative “fix” to Marsy’s Law to allow officers’ names to be withheld. That would be an unfortunate backward step for transparency.
Before the Supreme Court’s ruling, police cited Marsy’s Law not only to withhold records from the press but to censor it from reporting information it already had. Just last year, a Florida court barred the Sarasota Herald-Tribune and its reporter from naming deputies involved in a fatal shooting.
That highly unconstitutional “prior restraint” was reversed on appeal, and similar rulings should be precluded in the future by the Supreme Court’s more recent decision. But it’s a reminder of how police will try to use Marsy’s Law if they’re able to salvage it through new legislation.
Marsy’s Law isn’t the only way police in Florida try to hide their identities. Speaking of illegal prior restraints, the media has been prohibited for months from naming an officer who threw a reporter, Grant Stern, out of a news conference being held by Gov. Ron DeSantis.
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The city of Miami ludicrously claimed the officer was undercover. But Stern filmed the officer — who was working security at DeSantis’ news conference, not investigating the underworld — ordering another police officer to have him removed (that is, blowing his nonexistent “cover”).
Stern attached a picture from the video of the officer — who was wearing a city of Miami lapel pin — to court filings. In the video, another police officer even identified the “undercover” officer as police and gave his name.
Nevertheless, the trial court judge barred disclosure of the officer’s name until she can decide whether he was undercover or simply on duty in plainclothes. This order applies not just to Stern but to all news media outlets, no matter how they learn the officer’s name.
This gag order, like the one in Sarasota, violates the First Amendment. The U.S. Supreme Court has held again and again that courts may not prohibit the press from publishing truthful information that they lawfully obtain. More than a decade ago, a federal court in Florida even struck down as unconstitutional a state law prohibiting the publication of police officers’ names and addresses.
These intense battles for secrecy by police in Florida raise the question of why officers are so worried about the public knowing their names and so willing to advance clearly disingenuous arguments to evade the public scrutiny they signed up for. The Florida Supreme Court has thankfully rejected one argument in favor of secret police in Florida, but police are still pushing others. Floridians must demand that the law enforcement agencies drop their anti-transparency arguments that would shield the names of cops from the public. If they won’t, Florida courts must continue to rebuff them.
Caitlin Vogus is deputy director of advocacy for Freedom of the Press Foundation and a First Amendment lawyer.