City of Tallahassee
Florida Police Benevolent Association
ACLU of Florida's Amicus Curiae Brief (American Civil Liberties Union)
Supporting Petitioner City of Tallahassee and Intervenors News Media Coalition
This case summary will discuss the on going arguments of the City of Tallahassee, ACLU, and Florida Police Benevolent.
ACLU’S IDENTITY & INTEREST
"American Civil Liberties Union of Florida, Inc. (ACLU) is a statewide, nonprofit, and nonpartisan organization dedicated to defending the principles embodied in the State and Federal Constitutions and our nation’s civil rights laws. For decades, the ACLU has been at the forefront of efforts to ensure the public may access records and information necessary for government accountability. The ACLU has a significant interest in ensuring the public may access records of possible police misconduct and learn the identity of individual officers involved. As part of its mission, the ACLU seeks to hold public officials, including police officers, accountable for misconduct. "
Introduction to the Argument
According to Article 1, section 16(b)(5), a provision of the victims' rights amendment approved by Florida voters in 2018, vested a subset of law enforcement officers with a perpetual "privacy" right, entitling them to compel their employing agencies to keep secret basic, vitally important information about their exercise of governmentally conferred powers to use violence and lethal force against citizens. Florida Police Benevolent Ass’n, Inc. v. City of Tallahassee, 314 So. 3d 796 (Fla. 1st DCA 2021).
This means that the ACLU finds that law enforcement officers have a power of privacy from the public even in cases that an law enforcement officer must use violence and lethal force against the citizens they patrol. Marsy's law grants officers the right to a "victim status" in a case of an incident even if they use force on a citizen during an altercation. The officer would be seen as a victim in the case because of the actions the citizen took while the officer was conducting their investigation of a matter that involved the citizen. The ACLU argues that the law enforcement officer has no personal "privacy" interest in their official acts, because they do not perform their job duties secretly or anonymously, but in public places, wearing name badges and are observed and recorded as a right by citizens.
This case arises from the National and Florida social movements that put a specific scope on the police behaviors and government secrecy in our communities. The ACLU continues to argue that the police lawlessness and the abject failures of accountability have been documented abuses that affront the rule of law and justice systems across the nation. Without policy based constitutional language, the First District court leaves plain language to implement new plans based on the broad definition of privacy-impingement rights, in which crime victim "status" confers with law enforcement officers.
In plain terms, although there is no policy based language that mandates law enforcement agencies to adopt a plan to limit these law enforcement encounters there is still a bases of rules based on popular sovereignty (rights) of the officer. The ACLU clearly does not believe that this is enough to limit the police brutality and protection of officers that have used force or violence on private citizens.
The ACLU states that the First District's error follows from their failure to perceive and enforce a limitation on the text of Marsy's Law and the rights to anyone. The victim status under section 16(b)(5) right to prevent disclosure (by anyone) of any information, including their identity, that might enable an unwelcome intrusion on seclusion, for any reason - including reasons unrelated to the claimant's role as a victim in the criminal justice system." Therefore ,the ACLU argues that the respondents seek protection based not on the asserted role as crime victims but on their fundamentally distinct role as law enforcers.
1. The Constitutional Text Cannot Be Read to Confer the Strange and Unrestrained Right of Official-Anonymity.
The District Court held that Marsy's Law grants police officers an individual, personal right to prevent the public from knowing who used force against citizens whenever the officer faced any threat of any harm in performing their law enforcement duties.
But fidelity to plain meaning does not mean that, when fundamental matters about a legal provision’s scope—what harms it guards against, from what sources, under what circumstances, for how long, and for what reason—are unmentioned, the proper, “fair reading” is one that gives it limitless reach. See Gustafson v. Alloyd Co., Inc., 513 U.S. 561, 575 (1995) In the same ideology, the Court's textual supremacy precedents require the provisions that also codify the people's policy judgements.
Which means that this law will determine the codes, rules, regulations and polices of the law enforcement agencies across the state. Yet, the ACLU seeks to make a statewide change in the interpretation of "victim status" which directly applies to law enforcement officers. The ACLU argues that law enforcement officers use Mary's Law which grants them special solicitude in the criminal justice process and confers protections against ham based on their role as crime victims.
The ACLU makes a point that Marsy's Law seeks to shelter crime victims. Yet if the crime victim is the officer who use force (especially those injured while apprehending suspects) are "less vigorous[ly]" protected than criminal defendants' rights or that suck officers are treated disrespectfully by law enforcement i.e., the fellow officers and prosecutors who look to them for back-up and to make cases. And police officers already enjoy robust, judicially enforceable “due process” rights, Art. I, § 16(b)(1)
2. Rules Requiring Coherent Interpretations Further Condemn the District Court’s Interpretation.
The ACLU argues that the governing interpretations of provisions within an amendment give rise to a similar set of rules for resolving officer claims that involve multiple amendments. The ACLU wants the courts to harmonize construction of the interpretation of amendments that involve Marsy's Law. To establish a permissible meaning that fits most logically and common sense for the enacted law. Their argument seeks to make the courts hold law enforcement agencies accountable for any misconduct of law enforcement officers. The ACLU seeks to hold the law enforcement officers accountable through public accountability which strips away their vailed protection of privacy in a criminal altercation.
The proffered substitutes do not provide public accountability, but rather depend on good faith efforts by actors—like prosecutors and departmental investigators—who operate behind closed doors and are not always impartial, even in a formal sense. The much bigger problem, however, is that denying the information sought here robs the public of the means of holding these officials accountable and determining whether these processes are operating fairly and these officials are fulfilling the public trust.
Whether a citizen recorded the police-citizen interaction, whether the injured civilian is prosecuted or is tried in closed juvenile proceedings—wholly unrelated to any possible victim-rights or public-accountability (or even officer-privacy) interest. Indeed, in a significant share of important cases, the rule’s operation is not merely arbitrary but perverse, yielding permanent secrecy because, e.g., lethal force prevented the victimizer’s being tried publicly, a prosecutor wrongly failed to charge a law-breaking officer, or an officer’s “victim status” claim is based on a fabricated injury or threat. Miami Herald Pub. Co. v. Marko, 352 So. 2d 518 (Fla. 1977) (describing officers’ plan to put a gun in hand of man shot and killed).
The Counter Argument
Respondents' Answer Brief On the Merits
Luke Newman, Attorney for the Respondents Board Certified Specialist - Criminal Appellate Law
Statement of the Case and of the Facts
In 2018 a supermajority of Florida voters approved an amendment to the Florida Constitution which created express recognition that crime victims were entitled to certain rights and protections. Over 4.8 million Florida voters voted in factor of the amendment. Which represented 61% of the vote. The adopted language provides victims of criminal offenses with, among other rights, the right to be free from intimidation, harassment, and abuse as well as the 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. Art. I, § 16(b)(2) and (5), Fla. Const.
The News media wrote opinion pieces that discussed that police officers occasionally invoked victim rights protections found within the various Marsy's Law measures. The City of Tallahassee and the Tallahassee Police Department took the position that "any and all victim information that could be used to locate or harass the victim or the victim's family will be redacted" from publicly released information. The City of Tallahassee Police Department took the position that a city police officer who became the victim of a criminal offense and who invoked confidentiality through Marsy's Law would be afforded the requested confidentiality and that his or her name would not be publicly released. The elected State Attorney agreed with this interpretation.
In the early morning hours of May 19, 2020, respondent John Doe 1 was working as a uniformed Tallahassee Police Department Officer. He responded to a call for service at a Tallahassee gas station. John Doe 1 interacted with a citizen at the gas station who reported that he had been physically beaten by an unidentified male at a nearby, abandoned restaurant. In addition to other injuries, the complainant citizen was bleeding from his eyes. The complainant explained that his attacker tried to gouge out his eyes. While being attached, he dropped his cellular telephone. The complainant requested that John Doe (Officer) retrieve his phone from the attack site. The witness warned John Doe (officer) that the unidentified male who had beaten him was armed with knives. According to the witness, the suspected had openly brandish knives during the earlier fight.
John Doe 1 crossed the street to the located abandoned restaurant. He started to look for the citizen's cell phone when John Doe 1 saw the suspect partially concealed in some bushes. The suspect's name, later learned, was Wilbon Woodard. John Doe 1 repeatedly ordered Woodard to step out of the bushes. When Woodard stood up, he hid his right hand behind the bushes. John Doe told Woodard to show his hands. Then Woodard rushed towards John Doe 1 while holding a large, hunting-style knife which was in his right hand. Woodard yelled: "Ima kill ya". Then John Doe 1 shot at Woodward while attempting to retreat from Woodard's charge. One of the bullets hit Woodard who later died from gunshot wounds. The interaction was captured on Tallahassee Police Department body worn camera. The video of the charge, the verbal threat and shooting was all recorded.
After COVID 19 delay, the grand jury ruled unanimously that John Doe 1 was justified in using force against Woodard and that Woodard's actions put John Doe 1 in imminent danger of death or great bodily harm.
John Doe 1 shot and killed Woodard in Tallahassee on May 20, 2020.
5 days later, on May 25, 2020, a police officer in Minneapolis killed a Black man George Floyd.
After the incident with George Floyd there were cities across the United States that protested in the streets filled with outrage, sorrow, and confusion. There was civil unrest in the street with multiple reports of shootings, lootings, and vandalism. Protesters were involved with violence and property destruction which caused the City of Tallahassee to implement a mandatory curfew in the summer of 2020.
The day after George Floyd was killed: Natosha "Tony" McDade was involved in a physical confrontation with five individuals. McDade was seriously beaten. A video of the beating was uploaded to social media. And McDade posted a video wherein he promised to murder the five people involved in the beating. He referenced his post-killing plans regarding law enforcement stating "after I get to killing you bitches, I am going to get back on live, if I have the opportunity, because I will not be going back to prison. Me and the law will have a standoff after I end you bitches' lives." Eventually turning suicidal McDade states "just know before I kill myself through a shootout, because that's was going to happen... officers nowadays they see a gun, they just want to shoot. So that's what I am pushing for, because I don't want to be here on earth."
On May 27, 2020, Respondent John Doe 2 was working as a uniformed Tallahassee Police Department officer. He was responding to a stabbing suspect who has fled with a gun and a knife. The officer did not know McDade and his previous intentions that he posted on social media. While patrolling he found a woman who was telling him of McDade who was suicidal and McDade's mother when to talk to the officer. McDade became aggressive towards John Doe 2 and while holding a handgun, turned to a shooting stance. John Doe 2 saw McDade and pointed his firearm at him back. In fear for his life, John Doe 2 got out of the patrol car and fired his department issued firearm. McDade was hit by the Respondent John Doe 2's bullets. McDade fell to the ground and tried to reach his firearm. The second officer on site quickly got to McDade and ensured he did not get his gun back. The shooting was caught on video footage and John Doe requested that his identity be protected as confidential pursuant to Marsy's Law.
A grand jury examined John Doe 2's actions and found that John Doe 2 was in imminent danger of death or great bodily harm.
In this case, the petitioners City of Tallahassee and other coalition groups seek to rewrite the Florida Constitution. The respondents argue that the Florida Supreme Court should decline all such invitations.
The respondent then defines the constitutional language of "victim" for purposed of this dispute.
A “victim” is “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”. Art. I, § 16(e), Fla. Const.
The Respondents are persons whom violent crimes were committed against both of them. Thus the protections afforded in the law apply to both John Doe 1 and John Doe 2. The respondent argues that the petitioners policy suggestions do not apply and would be better used in another forum or directly to a law enforcement agency.
The respondent claims that in 2018, the Florida Supreme Court held that law enforcement officers were eligible to assert "Stand Your Ground" immunity under sections 776.013 (1), and 776.032, Florida Statutes. The Peraza decision states "put simply, a law enforcement officer is a "person" whether on duty or off, and irrespective of whether the officer is making an arrest." The respondent argues that the high court should recognize the term "person," plainly that law enforcement officers are human beings and are also subjected to this immunity, similar to "Stand Your Ground". In the same year 2018 Marsy's Law was adopted and the "common understanding" was applied to this amendment.
The Respondents provided the Circuit Court with a statement released by the spokesperson for Marsy’s Law for Florida which unequivocally states that “Police officers who have become victims of crime deserve the same constitutional rights as everyone else.” (ROA: 344). The statement goes further to announce that: “The Florida Constitution does not distinguish victim status between members of the public and police officers so any citizen can be a victim of a crime, even if they are a public employee.” (ROA: 344).
The City of Tallahassee claims that Marsy's Law recognizes the need for a triggering event. While some of the most egregious victimization occurs by wrongdoers who commit suicide or are killed during apprehension. To exclude these victims would be arbitrary and unconstitutional. The respondent argues that both John Doe 1 and John Doe 2 are victims whom Marsy's Law must apply. The respondent states that it would be unwise of the high court to enforce transparency of law enforcement action and identities which could be used to locate or harass an officer. Although the petitioners state that Marsy's Law protects names it is expansive and protects other personal information including: names, family member's name(s), home address, business address, phone number, email address, license plate numbers, government ids, post office box, and others. The respondent argues that the media could be used in their involvement of a crime victim as a form of harassment. Yet, the Media claimed that shielding names of the crime victim officers would impact transparency.
Petitioners’ arguments are legally meritless. Petitioners’ arguments are factually meritless. Oral argument cannot save this. Petitioners’ arguments must be rejected. The First District’s decision should be adopted and approved.
In my review of this ongoing case, there have been numerous briefs that discuss the legality of Marsy's Law and it's application to law enforcement officers. It is an argument that has hit a national platform and this on-going discussion has revealed many insights of our state and national values of public security. Although this case is not finished and has more to reveal, it is important to stay up to date on the dialogue of the Florida Supreme Court.