Marsy’s Law, a Florida constitutional amendment, took effect in 2019 after being approved by approximately 62 percent of voters in 2018. The law provides specific rights to the victim of crimes, including:

• Considering a victim’s safety when authorities set bail for the accused.
• Preserving the victim’s confidentiality or that of the victim’s family, including any information that could be used to locate or harass the victim or their family.
• A right to due process.
• A right to be notified about all stages of the criminal process regarding the defendant, including trial, sentencing, an escape, and parole.
• A right to be heard at each stage of the defendant’s sentencing.
• A right to the prompt return of the victim’s property when no longer needed as evidence in the case.
• A right to full and timely restitution from each convicted offender for all losses suffered.
• A right to proceedings free from unreasonable delay.
• A right to be informed of the constitutional rights afforded to the victim.

Who Is A Victim?

Determining who a victim is can be difficult because it is not laid out in the law whether it applies only to individual people or includes businesses and agencies. Some departments believe that Marsy’s Law only applies to persons who suffer direct or threatened physical, psychological, or financial harm due to the commission or attempted commission of a crime or delinquent act. 

However, some departments believe it also applies to a business that suffers direct or threatened physical, psychological, or financial harm due to the commission or attempted commission of a crime or delinquent act.

Without a clear understanding of whom Marsy’s Law applies to, the issue is being used in many ways, including one that has caused a significant dispute. A case is going to the Florida Supreme Court regarding two Tallahassee, Florida police officers involved in a shooting. The police officers argue that as victims, they are entitled to the privacy protections included in Marsy’s Law.

Marsy’s Law Procedures

Under Marsy’s Law, every victim is entitled to the rights discussed above at the outset of their victimization, meaning if someone falls within the definition of a victim, their information should automatically be protected. However, in some cases, automatic confidentiality of information is not provided, so a victim may file a confidentiality notice at any time to safeguard their information.

Dispute

While it seems small, the dispute has become a significant constitutional question. The family of the deceased likely wants the name of the individuals who shot and killed their family members, so they can have the option to file a wrongful death claim. The police officers want to protect their identity as they may be categorized as victims. This lawsuit tests whether Marsy’s Law conflicts with the Sunshine Amendment, leading to a sizeable constitutional question that will end up being heard by the Florida Supreme Court. It is important to see the underlying disputes to understand the constitutional issue.

Underlying Disputes

The larger dispute questioning whether Marsy’s Law is constitutional contains two smaller disputes.

First Dispute

The first dispute involves a Tallahassee police officer who responded to a report of aggravated battery. The battery victim claimed that the suspect was armed with knives. Once the officer arrived, he saw the suspect hiding in bushes between 10 to 15 feet from the officer. As the officer approached, the suspect threatened to kill the officer, showed a large hunting knife, and charged the officer. The officer shot and killed the suspect in response to the imminent threat. As a result, the officer argues that he should be classified as a victim under Marsy’s Law because he was the victim of a threat of violence.

Second Dispute

The second dispute also involves a Tallahassee police officer. In this case, the officer responded to a report of a stabbing in which the suspect fled with a gun and a knife. The officer found the suspect leaning into the passenger window of a parked vehicle. The driver jumped out of the car, asking for help. The suspect then moved toward the office and pointed the gun at the officer. The officer shot and killed the suspect in response to the imminent threat. As a result, the officer argues that he should be classified as a victim under Marsy’s Law because he was the victim of a threat of violence.

In both disputes, the officers’ personal information was redacted on all public records concerning the incidents. This leads to the bigger question being asked in the larger dispute, can law enforcement receive the rights under Marsy’s Law, or does that directly conflict with Florida’s Sunshine Law?

Florida Sunshine Law

The Florida Sunshine Law is a play on words in the “Sunshine State” because Florida intends for everything to be in the sunshine, meaning they want all information available to the public as an “open government.” This tradition started in 1909 with the passing of Florida’s Public Records Law, which, when paired with the Sunshine Law, means that any records received by an agency shall be available to the public unless found confidential and that the public has the right to access the meetings of most government agencies.

Procedure Of The Case

Initially, the trial court found that Marsy’s Law should not apply to the officers and ordered that certain information be disclosed. However, the First District Court of Appeals found that the police officers were protected under Marsy’s Law, reversing the trial court’s order directing the City to disclose public records that would reveal the identities of the two officers.

The City of Tallahassee, as the initial claimant attempting to get clearance to release public records revealing the officers’ identities, appealed the First District Court of Appeals decision. The Florida Supreme Court has agreed to hear the case, hopefully in 2022. Stay tuned for an update once the Florida Supreme Court releases its opinion.

Marsy’s Law Attorney

Are you dealing with a situation in which you believe you should be protected under Marsy’s Law but have not yet received those protections? Contact the experienced attorneys at the Koberlein Law Offices toll-free at 877.556.2889 or online for a free consultation.