A Leon County judge has dismissed an effort to keep private the name of the Tallahassee Police officer who shot and killed Tony McDade. The case represents a clash between Florida’s Constitution, the U.S. Constitution and the public’s interest to hold law enforcement accountable. At issue is the state’s Marsy’s Law: A constitutional amendment voters approved in 2018—and whether those victim privacy protections apply to law enforcement in officer-involved shootings.
McDade was shot and killed by a Tallahassee Police officer in late May. Eyewitnesses report hearing several shots and seeing McDade on the ground. In the run-up to his death, McDade stabbed and killed 21-year-old Malik Jackson. The Tallahassee Police Department says he aimed at gun at the officer who was responding. The night before his death, McDade posted a Facebook live video explaining he’d been jumped by a group of men and promising revenge. He also talked about forcing a standoff with police, saying he wasn’t going back to jail.
“Me and the law will have a standoff after I end you b——— lives. Because I’m fed up," McDade said.
The Police Benevolent Association, a police union, seized on those words in its effort to protect the identity of the officer who shot McDade.
"During what he predicted would be a standoff or shootout with police...he predicted he’d present a firearm and have a shootout with law enforcement, and unfortunately went so far as to predict law enforcement would be forced to shoot and kill him said Stephen Webster, a PBA attorney.
That, Webster claims, makes the officer who killed McDade a victim of an aggravated felony. He says the shooting is being conflated with other, high profile killings of black people by police and that the officer has been threatened.
“This officer’s absolutely, defensible, understandable and predictable acts of self-defense have been unfairly lumped into the acts of other police officers for which he had no involvement.”
Not everyone buys that argument.
“Someone can’t be a victim when they shot someone four, to five, times. It doesn’t make any sense," said Delilah Pierre, a member of the Tallahassee Community Action Committee.
McDade’s death has riled Tallahassee’s LGBTQ community. Some argue the reasons behind the shooting don’t matter. Just the outcome. McDade was a transmasculine person and activists like Pierre point to his death not just as another instance of a black person being killed by police, but also another instance of violence against transgender Americans.
“You’re expected to serve and protect us, yet you consider yourself to be a victim. You don’t use the money taxpayers give you to do something important and relevant to this community. You’re no victim," Pierre said.
Floridians approved Marsy’s Law in 2018 through a constitutional referendum. It calls for crime victims to be notified of all legal proceedings involving the accused, as well as a right to privacy. In this case, the officer who shot McDade is fighting to keep his name from being released.
He and the Police Benevolent Association are suing the city of Tallahassee. In its response to the request, attorneys for the city say officers are often treated differently under the law than the general public and that they have a lower expectation of privacy while on duty. The city also says there’s a clear conflict between the officer’s requests, the 1st Amendment of the U.S. Constitution, and the public’s need to hold law enforcement accountable.
"Access to public records is a constitutional right that’s long been recognized…and as the court knows, any exemption….to that right is to be construed liberally, in favor of disclosure," said City attorney Hannah Monroe.
She points to a conflict in the PBA’s argument. That the officer trying to shield his name is also under investigation for his role in the shooting, which she says makes his claim of victim status, moot.
“While the officer's conduct was justified…we don’t think that makes him a victim subject to Marsy’s Law, that would be up to the grand jury on whether the use of force was justified, but we recognize it’s a complex issue and are asking for guidance from the court," she said.
Officers already have a significant amount of their information protected under state law—like addresses and phone numbers. Every officer-involved shooting in Florida is reviewed by the state attorney and a grand jury. The situation has left Second Judicial Circuit Judge Charles Dodson with deep concerns about trying to decide something that in his words, is of great constitutional importance. And, he doesn’t think he has the authority to do so under legal rules:
“That rule states that a party that files a pleading which draws into question the constitutionality of a statute, must immediately file a notice of constitutional question stating the question and identifying the document that raises the question, and must serve that notice with the Attorney General or the state attorney. And the reason for that is real clear. The state of Florida must have an opportunity to respond to the constitutional question involved.”
Dodson ultimately rejected the PBA’s motion on technical grounds. The PBA is asking for an opportunity to file again with the court to prevent the officer's name from being released under Marsy’s Law. The city says it will release records on June 8th.
When voters approve new constitutional amendments, it’s typically up to the state legislature to pass implementing legislation dictating how the new rules will be enacted. So far, Florida lawmakers have failed to do that for the Marsy’s Law amendment. With no guidance from the legislature, state and local agencies have made up their own rules when it comes to applying Marsys Law. The amendment campaign was part of a national effort to pass similar language across the country.
Read Marsy's Law for Florida's Statement Below:
Statement by Jennifer Fennell, Spokesperson for Marsy’s Law for Florida
“Police officers who have become victims of crime deserve the same constitutional rights as everyone else. But police officers who have committed crimes cannot hide behind Marsy’s Law.
Marsy’s Law grants constitutional rights to all victims of crime, in the same way that all persons accused of a crime in Florida have constitutional rights. Victim status in Florida is granted to all victims of crime, without discrimination.
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. However, the Marsy’s Law provision of the constitution is clear when it says that the accused cannot also be a victim.
If a determination is made that a police officer has broken the law in the case, they become a defendant in that case and as such they automatically lose all their rights as a victim under the Marsy’s Law provision of the Florida Constitution and their name must be released.
The Marsy’s Law organization believes that in the interest of transparency and consistent with Florida’s tradition of government transparency that authorities should make this determination as quickly as possible.”
