FL Supreme Court: Law protecting victims’ rights doesn’t assure confidentiality

The Florida Supreme Court ruled Thursday that Marsy’s Law — intended to protect crime victims — does not confer an untrammeled right for victims to have their identities shielded from public disclosure.

Ruling in a case in which two Tallahassee Police Department officers argued their involvement in self-defense shootings rendered them crime victims entitled to Marsy’s Law protection, the state’s highest court sided with news organizations seeking access to the officers’ identities.

“Marsy’s Law guarantees to no victim — police officer or otherwise — the categorical right to withhold his or her name from disclosure,” the court said in an opinion written by Justice John Couriel.

The court did note that if the Legislature wants to expressly shield victims’ identities, it could enact an exception to Florida’s public-records law by a two-thirds vote of the House and Senate.

“Today’s decision neither weakens these various exemptions of certain information from public disclosure, nor prevents the Legislature — in performing the constitutional function reserved to it and not to us — from expanding them. Our decision instead is limited to the determination that Marsy’s Law does not guarantee to crime victims a generalized right of anonymity,” Couriel wrote.

The decision in Florida’s state capital was unanimous, although Justice Jorge Labarga concurred in the result without comment and Justice Meredith Sasso did not participate.

‘Surprising’

“It’s a very surprising decision — given the court’s very conservative leanings, one would have thought they it would have sided with the police,” Bob Jarvis, a professor of constitutional law at the Nova Southeastern University Shepard Broad College of Law, said in an email to the Phoenix.

“Of course, it’s also a very narrow decision. It simply says that Section 16 of Article I of the Florida Constitution does not shield names. It then specifically invites the Legislature to pass a law doing exactly that. As a result, look for such legislation to be introduced and quickly passed in the 2024 legislative session,” Jarvis said.

“This decision is really very nuanced,” said Bobby Block, executive director of the Florida First Amendment Foundation.

“It was a good ruling but it’s not a rock-solid kind of thing. I don’t think the issue is resolved for all time,” he said in a telephone interview.

“The opinion opens up the idea that if you can demonstrate clearly that you’re threatened or that you could face repercussions, then it allows for the idea that you can do that [get your identity concealed]. In the absence of that, why would you need your identity concealed?”

Block stressed that police are public servants. “They’re acting in the line of duty, paid by our tax dollars, and if they’re hurt in the line of duty are they really victims? These are interesting questions.”

But the opinion doesn’t really answer those questions, he continued. “I’ll be very interesting to see what happens going forward with how the Legislature deals with it.”

Privileged information

Marsy’s Law, enacted through a constitutional referendum in 2018, established “[t]he 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.”

It defines a “victim” as “a person who suffers direct or threatened physical, psychological, or financial harm as a result of the commission or attempted commission of a crime or delinquent act or against whom the crime or delinquent act is committed.”

The case arose from separate incidents in which TPD officers killed suspects, one of whom reportedly lunged at an officer with a knife and another who pointed a gun at the other officer. The local newspaper, the Tallahassee Democrat, sued for access to the officers’ identities. Joining the suit were the Democrat’s parent company, the Gannett  Co.; The McClatchy Co., publisher of the Miami Herald; The New York Times Co.; the Florida Press Association; and the Florida First Amendment Foundation.

But the officers, with support from the Florida Police Benevolent Association, argued they in effect were crime victims because they’d been threatened with harm, and therefore could withhold their identities under Marsy’s Law. A trial judge disagreed, but the First District Court of Appeal sided with the cops.

Narrow ruling

The court declined to say whether a police officer acting in his or her official capacity could qualify as a “victim” under the law, nor whether the law requires a court proceeding to have begun in an underlying criminal matter (that never happened in these cases, which resulted in the deaths of the suspects).

“Marsy’s Law speaks only to the right of victims to prevent the disclosure of information or records that could be used to locate or harass them or their families. One’s name, standing alone, is not that kind of information or record; it communicates nothing about where the individual can be found and bothered,” Couriel wrote.

When the law intends to shield someone’s identity, it says so expressly, for example regarding protection of confidential informants or victims of child abuse or sexual offenses, Couriel wrote. Additional laws address information that could assist in locating or identifying, say, a missing or endangered person, he added.

“The right to confront adverse witnesses at trial has been a cornerstone of Western society for a number of centuries, and it has long been secured by both the United States and Florida constitutions,” the opinion says.

That right isn’t absolute, “[b]ut these exceptions prove the rule: Absent special circumstances, criminal defendants in Florida have a right to expect that they will meet their accusers in court, whether or not those accusers allege that they are victims of the defendant’s actions,” Couriel writes.