Marsy’s Law was approved by Florida voters in the 2018 general election and amended Article I, Section 16 of the Florida Constitution to provide substantive rights to crime victims.  The Amendment provides crime victims the constitutional right to privacy regarding records that could be used to locate or harass them or their family or which could disclose confidential or privileged information about them.  The Amendment is wrought with ambiguities and uncertainties which create challenges for Florida’s law enforcement agencies, the media, and citizens who seek to interpret its provisions.  One ambiguity, some argued, included whether an on-duty law enforcement officer may invoke the privacy protections when he or she is the victim of a crime.  An informal survey of agencies revealed a mix of those who afford victim officer privacy protections and those that do not.  On April 6, 2021, the First District Court of Appeal answered that question in favor of allowing officers to invoke Marsy’s law victim confidentiality.[1]  Under Florida Rules of precedent, Florida’s trial courts are bound by this decision unless or until another District Court of Appeal renders a different opinion or this case is reversed by the Florida Supreme Court.

There are few issues surrounding Marsy’s law as polarizing as whether an on-duty officer can claim the victim privacy protections provided by it.  Proponents for inclusion argue that officers who are victims of criminal conduct while on duty fall within the plain meaning of the Amendment and should be entitled to the same rights as other citizens.  After all, they argue, officers do not lose their other rights when then don their uniforms and are listed as “victims” in charging documents when offenders assault or batter them while they are on duty.  Opponents, however, argue that while doing the peoples’ business, officers are not entitled to confidentiality and that the victim confidentiality provision conflicts with Florida’s open public records laws.  For the time being at least, the law of the State is clear: officers are people too and can invoke the victim privacy protections provided by Marsy’s Law.  This decision is consistent with the Florida Supreme Court’s extension of Florida’s Stand Your Ground protections to on-duty officers.[2]

This case arose from two separate incidents where Tallahassee Police Department officers were forced to use deadly force in response to imminent threats of death or great bodily harm.  In both instances, the officers’ assailants died.  Initially, the City declined to release the officer’s names, but later reversed course.  The officers, supported by their bargaining unit, sought relief in the trial court to establish their entitlement to the Amendment’s victim privacy protections.  The City, joined by several news media organizations, argued that law enforcement officers acting within their official capacities cannot be victims under Marsy’s Law.  After a hearing and oral argument, the trial court held that law enforcement officers acting in his or her official capacity could not be a “victim” for the purposes of the Amendment.  Among other reasons, the trial court held that protection of officers, not from their attackers, but rather from members of the community who opposed their official conduct, was outside of Marsy’s Law protections.  The court held that Marsy’s Law could not be interpreted to shield officers form public scrutiny of their official actions.  The bargaining unit and the officers immediately sought appellate review and the trial court’s order was stayed pending appeal.

On appeal, the First DCA held that the trial court misconstrued the Amendment “by ignoring its plain language and then limiting the class of victims entitled to protection under the law.”  The appellate court further reasoned that Florida’s broad public records laws do not conflict with Marsy’s Law and that the trial court erred when it comingled the two constitutional provisions.  Article I, section 24(a) of the Florida Constitution, one of the foundations upon which Florida’s open records is based, describes the broad right to inspect public records, but noted the right is specifically limited by records exempted or made confidential by the Florida Constitution.  Accordingly, the court reasoned, Florida’s open public records laws may be reviewed in harmony, not in conflict with Marsy’s Law victim confidentiality.

An on-duty officer meets the definition of a crime victim for the purposes of the Amendment when a crime suspect threatens the officer with deadly force, placing the officer in fear for his or her life.  Elimination of the threat through the use of force in self-defense does not defeat the officer’s status as a victim nor his or her right to invoke the Amendment’s victim privacy protections.  The court noted, however, that allowing the invocation of the constitutional privacy protections does not shield an officer from public scrutiny.  The officer is still subjected to investigation, review by the state attorney, and grand jury proceedings.  If charged with a crime, the privacy protection is removed as an “accused” is specifically excluded from the Amendment’s privacy protections.  This strikes a balance between protecting the identity of officers that comply with the law while permitting public scrutiny of those that do not.

“This critical decision recognizes that officers do not lose their rights when they choose to serve their communities,” said Chief Jeff Pearson, President of the Florida Police Chiefs Association.  “We are grateful for the opportunity to protect the identities of law-abiding officers who have been victimized while on duty while retaining the ability to hold  officers accountable if they break the law.”

Government subdivisions who operate law enforcement agencies and law enforcement executives should immediately review, and revise if necessary, their policies and procedures to recognize an on-duty officer’s constitutional right to invoke Marsy’s Law privacy protections and to prevent the dissemination of information that could lead to the officer’s identification, which necessarily includes the officer’s name.  Officers and their representatives should familiarize themselves with their rights to ensure their privacy as crime victims, should they chose to invoke the constitutional privacy protection.

[1] Florida Police Benevolent Assoc., Inc. v. City of Tallahassee, Case No. 1D20-2193 (Fla. 1st DCA April 6, 2021).

[2] State v. Peraza, 259 So. 3d 728 (Fla. 2018).