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In Florida, Cops Who Kill Civilians Can Now Remain Anonymous

Democratic prosecutors in Tampa and Miami campaigned for the 2018 initiative that paved the way for this new ruling.

Photo by CHANDAN KHANNA/Getty Images

In 2018, more than 61 percent of Florida voters elected to pass a ballot measure that created a new set of “victim’s rights,” including giving victims of crimes the ability to speak at their assailant’s trials,  to speak at their assailant’s parole or clemency hearings, to refuse interview requests from people who have harmed them, and to be notified before an incarcerated person transfers locations or is released. The measure, known as Marsy’s Law, also allows the victims of crimes to withhold their names from the press and public, ostensibly in order to prevent people from finding, stalking, or harassing victims.

On Tuesday, a Florida appellate court ruled that police officers who say they are attacked on the job can claim protections under Marsy’s Law and hide their identities, even if they injure or kill civilians. The ruling will make it difficult for the public—including victims of police abuse—to find out the names or career histories of cops who commit acts of violence on the job.

The original lawsuit, filed in June, concerned the 2020 police killing of Tony McDade in Tallahassee. McDade, 38, had allegedly been acting violently and erratically leading up to the shooting. On May 25, he allegedly stormed into the apartment of Jennifer Jackson, a woman he had been seeing, and pistol-whipped her. He claimed on a Facebook livestream that he’d been jumped by a group of men tied to Jackson’s son, Malik, and vowed revenge. Police had been called to McDade’s home twice the night of May 26, but did not arrest McDade either time. On May 27, Jackson’s family says McDade snuck up behind Malik as Malik sat parked in his Hyundai SUV and stabbed him to death while Jackson’s friends fought McDade off. McDade then fled and someone called the police. When Tallahassee PD arrived at McDade’s home, police claim, McDade pointed a gun at them. Police then fatally shot McDade.

After the shooting, the City of Tallahassee moved to release the names of the cops who’d killed McDade, but the Florida Police Benevolent Association—TPD’s police union—intervened and sued the city. In July, a local judge ruled that Marsy’s Law did not apply to officers while they’re on duty. This week, the appellate court disagreed, ruling that, since McDade had allegedly pointed “deadly weapons” at the officers, the cops involved were, in fact, crime victims.

“Because article I, section 16 [the Marsy’s Law amendment] does not exclude from its protections law enforcement officers or other public employees when they become victims of crime, Appellants had a right to seek confidential treatment for public records that could be used to locate or harass them,” the court stated.

Marsy’s Law provisions are now on the books in at least 12 states, increasing the likelihood that any judicial outcome in Florida may establish a wider precedent. Despite significant warnings from justice-reform groups in other states where similar laws had already been enacted, some of Florida’s most prominent Democrats, including State Senator Lauren Book, State Attorney Andrew Warren, and Miami-Dade County State Attorney Katherine Fernandez Rundle, campaigned to help pass the 2018 ballot measure.

“Marsy’s Law for Florida has really done a tremendous amount to make sure that survivors of violent crimes have a voice and have a stake,” Book said in a May 2020 video posted to the official Marsy’s Law for All YouTube channel.

“Crime-victims in Florida deserve equal rights,” Rundle said to voters in a 2018 ad urging residents to approve the measure. In a different spot, Warren, who has cultivated a reputation as a “progressive” prosecutor, claimed that Marsy’s Law was “working” in other states. Rod Smith, the former chair of the Florida Democratic Party and  former prosecutor, said the bill would ensure that “the most vulnerable in our community aren’t forgotten.”

Spokespeople for Book did not immediately respond to requests for comment. Rundle’s spokesperson, Ed Griffith, said the Miami-Dade County State Attorney’s Office is “presently reviewing the opinion.”

Warren said that he was disappointed in the ruling. “I don’t believe that withholding an officer’s name after they’ve used force on behalf of the state—on behalf of all of us—keeps with the spirit of Marsy’s Law,” he told The Appeal. “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.”

Grassroots activists in Florida were not exactly clamoring to pass a victims-rights amendment in 2018. Florida already had protections for victim’s rights; more than 30 years ago, it was the first state to enshrine the rights of victims in its constitution. Marsy’s Law is largely the brainchild of a single California billionaire—tech mogul Henry Nicholas, who co-founded the company Broadcom and is now using his immense fortune to push victims-rights laws in state houses around the nation. In 1983, Nicholas’s sister, Marsalee “Marsy” Nicholas, was murdered by an ex-boyfriend—and, since then, he has spent tens of millions of dollars campaigning for the rights of crime-victims nationwide.

But Nicholas’s crusade has brought out many critics, who say his “reforms” in many cases have been misguided, draconian, or outright harmful to criminal justice reform efforts.

An investigation by USA Today and ProPublica found that, since 2018, cops across Florida were already invoking Marsy’s Law to hide their names in a variety of situations, including claiming they were “victims” of crimes after scraping their knees, twisting their wrists, or bruising their fingers. The report also found that at least seven Florida agencies have used Marsy’s Law to avoid divulging the names of officers who’ve killed civilians.

In some states where Marsy’s Law is in effect, the provisions allowing victims to refuse interviews from their alleged assailants means that defense attorneys have been unable to obtain basic information about their cases, including where or when the crimes may have occurred. And provisions requiring victims to be notified before an incarcerated person is transferred or released from prison have slowed down jail and prison releases. Prominent justice-reform and civil-rights groups, including the American Civil Liberties Union, have stated that they believe Marsy’s Law appears to do more harm than good.