Shielding Police Identities: A Law That Cuts Both Ways
by Michael Fortino, Ph.D.
Marsy’s Law, also known as the “crime victim bill of rights” designed to protect victims from their attackers when the latter are no longer incarcerated, is used by Florida police as a shield to hide an officer’s identity from public access after a violent encounter with a suspect.
Responding to a call about a fatal stabbing, police chased down a man on the south side of Tallahassee. Natosha “Tony” McDade, a Black transgender man, pulled out a gun when cornered by police and was subsequently shot dead by the pursuing officer on May 27, 2020. The Tallahassee Police Department, citing Marsy’s Law, refused to release the identity of the officer involved in the incident, claiming him “the victim of a crime ... his identity should therefore be protected” as reported by motherjones.com.
Immediately after the shooting, according to the Florida Police Benevolent Association (“PBA”), the officer “was threatened by a person at the scene, and there has been ongoing animosity expressed against him on social media since he was forced to defend his own life.” The PBA also cited the current toxic anti-police sentiment being expressed nationally and globally as a result of various White-cop/Black-suspect incidents that have stirred public protests in recent months.
Members of the LGBTQ community decry the strategy of shielding an officer’s identify from the public’s knowledge, as a misapplication of Marsy’s Law. They claim that an officer attempting to avoid public scrutiny and accountability using Marsy’s Law as a shield is “contradictory to the public’s First Amendment right to gather information about what public officials do on public property.”
On July 24, Second Judicial Circuit Court Judge Charles Dodson ordered the release of the names of two cops involved in McDade’s death, saying, “The court finds that the explicit language of Marsy’s Law was not intended to apply to law enforcement officers when acting in their official capacity.”
The citizenry, he noted, “has a vital right to evaluate the conduct of our law enforcement officers, who are empowered to arrest people and use deadly force.”
On July 30, the judge issued a stay in the legal tussle, and on September 4, a county grand jury concluded the officer’s use of force in the McDade case was justified.
What is most notable is how police, beleaguered by protests and facing criticism for poor training, militarization, and trigger-happy tactics, are in many cases now resorting to the same legal strategies that have been used by victims of crime to defend themselves from perpetrators.
Marsy’s Law, also known as “Marsy’s Law For All,” is now being enforced in the states of California, Georgia, Illinois, Nevada, North Dakota, North Carolina, Ohio, Oklahoma, South Dakota, and Wisconsin, and it represents nearly a third of the population of the U.S., according to motherjones.com.
Marsy’s Law was named in honor of Marsalee “Marsy” Nicholas, who was stalked and killed by an ex-boyfriend in 1983. The legislation guarantees that victims like Marsy’s family are notified of and permitted to attend all criminal proceedings related to their case. Also, it gives these victims or close associates an opportunity to submit victim-impact statements while maintaining privacy from the defendant.
The bill was championed by Henry Nicholas, Marsy’s brother, the co-founder and billionaire owner of the successful business, Broadcom, and who poured hundreds of millions of dollars into expanding the legislation nationwide. Nicholas was distraught when he and his family spotted his sister’s killer out on bond in a supermarket shortly after Marsy’s funeral.
The concept behind the law is to allow the family of victims to maintain anonymity and to be more involved in the criminal justice process, yet no one at the time anticipated that police would utilize the legislative protection for themselves.
Cynthia Roseberry, deputy director for policy of the ACLU Justice Division, proclaims if Marsy’s Law had been in effect in Minneapolis, absent the video footage, the officer’s version of the George Floyd incident would have allowed police to conceal the abuse of force and to offer an “official explanation,” all while shielding the officers involved. Minnesota has yet to adopt Marsy’s Law.
Routinely in the U.S., protective laws meant to benefit victims have often been turned to shield or protect wrongdoers. In the 1950s, the Mafia cleverly hid and protected itself through the application of existing constitutional privileges. Laws that arose from the victims’ rights movements during the wave of violent street crimes of the 1970s or the war on drugs of the 1980s are now used to impose “harsher than necessary” sentences on offenders. A piece of legislation can become a double-edged sword, and that is exactly what is happening with Marsy’s Law. Public entities such as police may now take advantage of this form of protective legislation to distance themselves from personal accountability to the public.
Many critics, including the ACLU, contend that Marsy’s Law compromises due process and that victim’s rights should take a back seat to federal constitutional protections.