‘Marsy’s Law’ Does Not Shield Crime Victims’ Names From Disclosure

Written on 02/03/2024

In 2018, Florida voters amended the Florida Constitution to include a number of rights for crime victims. The general intent of the amendments, colloquially known as Marsy’s Law, was “to achieve justice, ensure a meaningful role throughout the criminal and juvenile justice systems for crime victims, and ensure that crime victims’ rights and interests are respected and protected by law in a manner no less vigorous than protections afforded to criminal defendants and juvenile delinquents.”

The Amendment’s list of victim rights includes “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.” Under Marsy’s Law, 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.”

On May 19, 2020, a man rushed at a Tallahassee police officer with a hunting knife. The officer defended himself by fatally shooting the assailant. Eight days later, on May 27, a different Tallahassee police officer responded to a crime in progress. The perpetrator, who had just stabbed a man to death, aimed a gun at the officer. The officer defended himself by shooting the man, killing him. A grand jury investigated each shooting and determined in each case that the shooting was lawful and a justifiable use of force.

Reporters sought disclosure of the officers’ names from the City. The officers, however, asserted that they qualified for Marsy’s Law protections because they were victims of the assaults from which they had defended themselves. And as Marsy’s Law victims, the officers argued, they were entitled to prevent the release of their personal identifying information, including their names. The City was not swayed, and the Police Benevolent Association sued the City to prevent the disclosure of the names.

The Florida Supreme Court sided with the City. The Court’s decision turned on whether a victim’s name qualifies as “information or records that could be used to locate or harass the victim or the victim’s family.” The Court found that “fairly read, the text does no such thing. For it is one thing to identify a person and another altogether to locate or harass him or her. To ‘identify’ a person is to ‘fix the identity of’ him or her. But to ‘locate’ a person is to ‘establish that he or she is in a certain place.’ To ‘identify’ someone, then, is to distinguish him or her from other persons; to ‘locate’ that person is to determine his or her physical whereabouts.

“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.

“If Marsy’s law did explicitly protect a victim’s name from disclosure it would raise serious doubt about how to square a victim’s rights under Marsy’s Law and a defendant’s right to confront at trial adverse witnesses. The right to confront adverse witnesses at trial has been a cornerstone of Western society for several centuries, and it has long been secured by both the United States and Florida Constitutions. In almost all cases, the Confrontation Clause guarantees a criminal defendant the right to physically confront accusers, and to cross-examine the witnesses against him. And a defendant’s knowledge of the identity of an adverse witness is often critical to the force and integrity of a cross-examination, as a witness’s identity may be germane to the determination of bias or credibility.

“A criminal defendant’s right to know his accuser’s identity is not absolute, though. The prosecution’s limited privilege to withhold the identity of a confidential informer is well established under Florida law. We approve of the ‘personal safety’ exception to the otherwise ordinary duty of the State to allow the defendant full access to its witnesses on cross-examination. We have recognized that a trial court may limit cross-examination if the information sought could endanger the witness.

“But 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. For these reasons, even assuming Marsy’s Law could plausibly be read in isolation to secure a victim’s right to anonymity, it is our job, when possible, to read different constitutional provisions in concert, not conflict. By reading Marsy’s Law to shield, as a general matter, only information that can be used to locate or harass, rather than identify, a victim, we give effect to Marsy’s Law while also protecting a defendant’s right to confront adverse witnesses at trial. That right would be drawn into doubt if we found that Marsy’s Law categorically secured a victim’s right to anonymity in all criminal cases.”

City of Tallahassee v. Florida PBA, 2023 WL 8264181 (Fla. 2023).