This story was co-published with USA Today.
In January 2019, a Dollar Tree employee in Masaryktown, Florida, called 911 after a homeless man stole $70 of beer, wine, candy and cookies. A sheriff’s deputy had little trouble finding him — the man had passed out drunk in a nearby ditch with an open box of Reese’s Pieces.
The deputy took the man to the hospital, where he became irate. With his left wrist handcuffed to the bed, he started swinging his right arm wildly. To get the suspect “under control,” the deputy pepper-sprayed him in the face.
The Hernando County Sheriff’s Office provided a copy of the use-of-force report to USA TODAY and ProPublica in response to a public records request. Blacked out was one crucial detail: the deputy’s name.
Under a law passed to protect crime victims, the deputy was entitled to privacy, officials said. He’d suffered a battery: The flailing suspect had been attached to a pulse monitor, and the wire hit near the deputy’s shoulder.
Introduced in memory of a young woman murdered by her ex-boyfriend, Marsy’s Law was created to offer crime victims a slate of rights, including protecting them and their families from harassment by their attackers.
Now, as police across the nation face cries for accountability amid mounting evidence of brutality and systemic racism, law-enforcement agencies in Florida are using Marsy’s Law to shield officers after they use force, sometimes under questionable circumstances.
Florida agencies have used it to hide the names of officers who sent a 15-year-old boy to the hospital, officers who fired bullets into moving cars and officers who released their K9 dogs on drunk and mentally ill people.
Marsy’s Law passed first in California in 2008 and, through a well-funded campaign by the woman’s brother, is the law in 11 other states. It happened each time by ballot initiative, allowing voters to adopt all of its implications with a single yes.
Now, it is on the ballot in Kentucky, a state still reeling from the botched raid that killed Breonna Taylor, a 26-year-old Black medical worker in Louisville. Had it been in place this March, the public may not have learned the identities of the three white officers who opened fire.
“This constitutional amendment is so ambiguous and has lent itself to so much misinterpretation, misapplication, inconsistency,” said Amye Bensenhaver, director of the Kentucky Open Government Coalition and a former assistant state attorney general. “We will have those problems emerge, just as they have emerged in Florida.”
The law increasingly has been co-opted by police. It got on Florida’s ballot in 2018 after being introduced by a sheriff and revised with the help of two statewide law enforcement associations. Officers say it allows them to claim victim status in use-of-force cases where they say the suspect was the aggressor.
At least half of Florida’s 30 largest police agencies said they apply it to shield the names of on-duty officers, a USA TODAY and ProPublica investigation found. For the agencies that do, reporters requested and reviewed thousands of pages of police reports from use-of-force incidents since January 2019.
The sheriff’s offices in Collier and Charlotte counties, in southwest Florida, have withheld deputies’ names in roughly 1 in 6 incidents in which an officer used force that resulted in a civilian’s injury. For the sheriff’s office in Hernando County, an hour’s drive north of Tampa, it’s nearly 1 in 3.
Local newsrooms in almost every region of Florida have been denied officers’ names under Marsy’s Law, with the Tampa Bay Times, the Tallahassee Democrat and The Palm Beach Post covering the controversy extensively.
The agencies rarely redacted the names of the suspects on whom they used force, including juveniles and mentally ill people in the thick of a crisis.
Sometimes, the injuries officers cited when they invoked the victim status were as minor as a scraped knee, soreness or a twisted wrist. In one case, a Hernando County deputy photographed and noted a “minor, blunt-forced injury to my left index finger, causing a bone bruise on the lower joint of the same finger.”
The sheriff’s office refused to provide the pictures, even ones that blurred or blacked out the deputy’s face, citing Marsy’s Law and a provision in the state public records law that exempts photos of law enforcement officers from disclosure.
Officers sustained no injuries in at least half of the incidents for which they claimed victims’ rights, records show. Even minor movements that officers perceived as threatening, such as walking aggressively or reaching into a pocket, qualified as batteries on officers — triggering the law’s protection, according to the agencies.
Court records still typically provide police officers’ names. When criminal charges are filed against defendants, courts release unredacted versions of the same records police black out. But court records aren’t public if the defendant is a juvenile, and there are no charges to file if the suspect is dead.
At least seven police agencies have withheld the names of officers who’ve killed civilians: the sheriff’s offices in Broward, Sarasota, Manatee, Charlotte and Hernando counties, and the police departments in Tampa and Tallahassee. Five of the deceased were white, two were Black and one was Hispanic.
A Tallahassee police officer brought the problems with Marsy’s Law to light in May when he claimed victimhood status after fatally shooting Tony McDade, a Black transgender man who allegedly stabbed a neighbor’s son to death before pointing a gun at the officer.
Tallahassee police Chief Lawrence Revell didn’t release the names of the officers involved, prompting protests outside the police station and in the streets. Days later, the Florida Police Benevolent Association sued the city to make sure it wouldn’t change course. The police union’s lawsuit cited the growing anger over police violence as a reason to hide their names.
“His fear for his safety is reasonable, especially given the current unrest that has followed in the wake of George Floyd’s death in Minneapolis,” the union said in court filings.
Mutaqee Akbar, the attorney for McDade’s family, said the police still haven’t told him the names of the officers, which has prevented both him and the public from investigating the officers’ past conduct. He worries about the implications for Black men across Florida, whom police kill at a disproportionate rate, state data shows.
“We always say, ‘Police as a whole are not all bad,’ but they’re protecting those who are at least perceived to be bad with Marsy’s Law,” Akbar said. “I don’t think the public would have voted for it if they had known these consequences to it. And I don’t believe that this was in the true spirit of what the law is.”
The identities of officers who’ve used violence against civilians is vital information that the public has a right to know, said Barbara Petersen, the former head of Florida’s First Amendment Foundation. Had the Minneapolis Police Department withheld the identity of Derek Chauvin, the officer charged with killing Floyd, the public may not have learned of his extensive history of using excessive force, Petersen said.
The notion that a law enforcement officer responding to a call could be considered a crime victim, she said, is “mind-boggling. … How are we supposed to know if they’ve acted appropriately? How do we know they haven’t done this before?”
Matt Puckett, executive director of the Florida Police Benevolent Association, acknowledged there should be limits on when officers can invoke Marsy’s Law.
“We need to have the [state] Supreme Court issue a ruling on it, because it’s always going to be very subjective ... as to what would be worthy of a shield from victim’s information,” Puckett said. “It’s not hard to see a circumstance where you would go, ‘OK, that probably seems like not a fair use of the of the law.’”
Pasco County Sheriff Chris Nocco introduced Marsy’s Law in Florida. Now, he is one of the most vocal advocates for using it to automatically shield deputies’ names, including those of two in his agency who fired at a car driven by a man wanted for a string of carjackings in October 2019. The deputies said they were the victims of aggravated battery because the man allegedly tried to ram them with his car.
The alleged ramming was not shown in the soundless video released by the office. USA TODAY and ProPublica requested the incident report on Oct. 12 and the full video on Oct. 20; the office has not yet provided them.
“The provision exists for victims across the spectrum, regardless of their profession,” said Nocco’s spokesman, Chase Daniels. “We believe there is the capability to both protect the victim and provide transparency under Marsy’s Law, which we have done.”
Nocco and three other county sheriffs who routinely use Marsy’s Law — Brevard’s Wayne Ivey, Collier’s Kevin Rambosk and Charlotte’s Bill Prummell — declined to comment. In an emailed statement, Hernando County Sheriff Al Nienhuis said that Florida voters, “intentionally or unintentionally, did not provide exceptions based on the victim’s positions or actions.”
“Unless or until there is clarification by the Legislature or the Courts, I have elected to err on the side (of) caution and the side of any crime victim,” Nienhuis said.
Lauren Book, a state senator from Broward County and sexual assault survivor who campaigned for Marsy’s Law, introduced legislation in 2019 that would have exempted on-duty officers from the privacy benefits of the law, but her bill never got so much as a committee hearing.
“We need an implementing bill to create some clarity,” Book said. “Shielding the identities of law enforcement was never the intention. The goal was to protect victims of crimes — period, the end.”
The controversial crime victims’ rights law was born of a tragedy.
In 1983, Marsalee Ann Nicholas, a 21-year-old student at the University of California, Santa Barbara, who went by Marsy, was stalked and shot to death by her ex-boyfriend, Kerry Michael Conley, when she came home for Thanksgiving.
Conley was arrested but remained free on bail for two years until he was convicted of second-degree murder. At a grocery store a week after her death, Conley allegedly accosted Nicholas’ mother, who was on her way home from the funeral. The family said it had not been notified that Conley was out on bond.
Nicholas’ mother and stepfather, Marcella and Bob Leach, became prominent advocates for victims’ rights, as well as harsher sentences for convicted felons. Along with Marsy’s brother, Henry Nicholas, the Leaches co-founded a nonprofit support organization for families of homicide victims, which they ran for decades.
Nicholas, the billionaire co-founder of Broadcom Corp., in 2007 spearheaded a campaign to pass a comprehensive bill of rights for California crime victims. He recruited former Gov. Pete Wilson, legal scholars, law enforcement officials and victims’ rights advocates to draft a constitutional amendment bearing his sister’s name.
In 2008, California passed it as a ballot measure with nearly 54% of the vote.
The following year, Nicholas launched a national organization, Marsy’s Law for All, which has spent more than $100 million working to pass similar amendments in other states. So far, 11 more have active laws on the books: Florida, Georgia, Illinois, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Dakota and Wisconsin.
While none of the states explicitly exempt on-duty police officers from the benefits of any part of the law, only in Florida, North Dakota and South Dakota can police officers use the law to shield their names from the public. That’s because those states’ amendments eliminate a key phrase from an original provision of the law that prohibits the release of information that could be used to “locate or harass” a victim.
Whereas California and others states’ provisions prohibit “the disclosure of confidential information to the defendant,” North Dakota’s version passed in November 2016 deleted the words “confidential” and “to the defendant” — leaving a provision that simply prohibits the disclosure of victim “information” to anyone. Florida and South Dakota followed suit in 2018.
North Dakota Attorney General Wayne Stenehjem quickly tried to clarify that the law does not protect the names of victims, unless they are children or the victims of sex crimes or domestic violence.
“There is nothing under Marsy’s Law that protects the name of a victim or the victim’s family,” he wrote in January 2017 guidance.
Cops disregarded that guidance. In October 2017, a Bismarck police officer invoked Marsy’s Law after shooting and wounding a man who he said punched him and gouged his eyes. The agency declined to identify the officer, but The Bismarck Tribune uncovered his name and published it — prompting protesters to gather outside the newsroom in support of police.
In the months after, more North Dakota officers invoked the law, with support from Marsy’s Law for All: “Police officers can be victims just like anyone else,” spokesman Henry Goodwin told the Grand Forks Herald in July 2018.
Liz Brocker, spokeswoman for the North Dakota Attorney General’s Office, said the state’s top lawyer can only provide advice to police. “By law, we have no jurisdiction or authority over local law enforcement agencies,” she said, “and we do not enforce or take complaints about Marsy’s Law.”
Meanwhile, the law was working its way onto Florida’s ballot.
It had been introduced to Florida’s Constitutional Revision Commission, which gathers every 20 years to examine the state constitution and debate potential revisions. In this unusual process, politicians appoint 37 commission members to propose amendments and, if approved by at least 22 members, refer them directly to the ballot for a vote.
The 2017 commission was made up almost entirely of Republicans, many with direct ties to then-Gov. Rick Scott. Two members proposed similar versions of Marsy’s Law: Nocco, the Pasco sheriff, and Timothy Cerio, Scott’s former chief legal adviser.
Both versions contained the same “locate or harass” provision that was making news in North Dakota. Yet according to transcripts and videos from the commission proceedings, the issue never came up.
During a commission meeting in March 2018, Cerio thanked the Florida Sheriffs Association, the Florida Police Chiefs Association and several top state prosecutors for their support and their revisions to the initiative.
“It is especially meaningful to me that so many of these officials we look to, who played key roles in our criminal justice system, have frankly reviewed and have had direct input into the crafting, and maybe a little re-crafting, of Marsy’s Law,” Cerio said, according to a meeting transcript.
In November 2018, Florida voters passed it by a 23-point margin.
Gail Gitcho, a senior adviser for Marsy’s Law For All, insists that police influence was limited. “While law enforcement agencies did weigh in on some provisions of the language, not a single law enforcement officer or agency or organization had a hand in crafting, drafting or writing the privacy provision. None. Zero.”
The Florida Sheriffs Association and Florida Police Chiefs Association said they both provided input on Marsy’s Law before it went to the ballot, but neither weighed in on the privacy provision. Spokespeople for the organizations said they were unaware at the time of how officers could use it to shield their identities.
“The association did not consider or analyze the laws of North Dakota or any other state when evaluating the proposed amendment to Florida’s constitution,” said William Stander, a spokesman for the Florida Police Chiefs Association, noting that the organization was not involved in drafting the law.
“The Florida Police Chiefs Association has not advocated for a particular interpretation of this or any other issue raised by the amendment, and we continue to call on the Florida Legislature to further clarify these ambiguities.”
The Florida Sheriffs Association declined to take a stance also.
Cerio did not respond to multiple calls and emails.
As police agencies across Florida adjusted to the new victims’ rights amendment in early 2019, the Jacksonville Sheriff’s Office put together a PowerPoint presentation to tell deputies how to follow Marsy’s Law. The last slide spelled out those who are not considered victims under the amendment, including suspects, the deceased and witnesses to a crime. A final note read, “Police Officers cannot invoke Marsy’s Law in the course of their official duty.”
Jacksonville deputies begged to differ. In January, their union sued in state court, arguing they, too, had a right to confidentiality under the amendment. The case is awaiting trial.
Five months later, after a pair of fatal shootings, including that of McDade, by Tallahassee police officers, the Florida Police Benevolent Association sued the city of Tallahassee to block the release of the officers’ names.
Judge Charles Dodson was not convinced. In July, he cited the public’s right to access government records and ruled that the court “cannot interpret Marsy’s Law to shield police officers from public scrutiny of their official actions.”
The police union is appealing the case, and the officers’ names are still sealed. In the meantime, Dodson’s ruling has not stopped police agencies in other parts of the state from using the law to their advantage.
USA TODAY and ProPublica surveyed 50 of the state’s largest police agencies about their interpretations of the law.
Of the 36 agencies that provided responses or records, 19 — including Miami Police Department and Hillsborough County Sheriff’s Office — said they apply the law to officers, 15 said they do not and two said they weren’t sure. The rest refused to answer or did not respond.
Of the 19, 12 have withheld the name of at least one deputy, with the others saying the situation has not yet come up.
Fatal shootings account for a fraction of the incidents. Far more often, police are withholding the names of officers involved in violent altercations with juveniles, intoxicated people or people experiencing mental health episodes. For instance:
Two Collier County sheriff’s deputies fought a 15-year-old boy in his own home after busting him for having friends over, in violation of his juvenile probation. One deputy suffered “shoulder soreness” and the other a cut on the hand. The teen’s mouth was cut during the altercation and he wound up in the hospital.
The Brevard County Sheriff’s Office, which covers the central east coast including Cape Canaveral, redacted the name of a deputy who fired her gun at a drunken driver who tried to flee. The woman allegedly sped in the direction of the deputy, who claimed she feared for her life, so she shot at her and missed.
The Charlotte County Sheriff’s Office redacted the names of deputies who struggled with a suicidal man as he resisted being taken for a mental health evaluation. They twice used a Taser and repeatedly punched the man, who allegedly struck back with his fists and feet and snatched one of their police radios.
A Hernando County sheriff’s deputy released his German shepherd on a man who allegedly pointed a BB gun at him and wanted to die by police. The deputy knocked the gun away and then unleashed his dog, which latched onto the man’s ankle and ripped muscle out of his flesh. Although the deputy reported no injuries, the agency redacted not only his name but also his dog’s name, though court records later revealed it: Justice.
There is little uniformity in how the law is applied, with some agencies saying officers must invoke the law and others applying it automatically. Even within the same county, police agencies’ interpretations conflict. For example, the St. Petersburg Police Department allows its officers to invoke a right to confidentiality under Marsy’s Law if they choose. The Pinellas County Sheriff’s Office, which covers areas right outside the city, does not.
The law has also hampered the public’s right to know about important incidents involving civilians. In 2019, a Sarasota County day care worker was charged with abuse, caught on camera dragging and pushing children. The sheriff’s office refused to name the day care, saying that the victims opted into Marsy’s Law, and that naming the facility could have identified the children to the public.
John Herrell, a spokesman for the Lake County Sheriff’s Office in central Florida, which does not apply the law to deputies, said: “While I like the intent of Marsy’s Law, I’m not a fan of its verbiage, and I hate the confusion it has created.”
When Florida police request protected status under Marsy’s Law, it is often unclear from whom they are seeking protection.
In most states, Marsy’s Law narrowly protects victims and their families from being harassed by defendants. Yet in one southwest Florida case, deputies didn’t object to sharing their names with the man who they claimed violently assaulted one of them, while telling USA TODAY and ProPublica that such information was a critical secret.
Trent Gilliland walked out of an upscale cocktail lounge in Naples, Florida, without paying his drink tab in September 2019.
Five Collier County Sheriff’s deputies approached him outside the bar, police reports show. Gilliland began taunting the deputies, calling them “motherfuckers” and “bitches” who had “easy jobs.” The deputies warned him to watch what he said, the reports show.
“Or what?” Gilliland responded. “What are you going to do?”
According to the deputies’ version of events, Gilliland clenched his fists and stepped toward one deputy, who pushed him back. Gilliland then allegedly grabbed the deputy’s wrist and pulled his fingers back so far that the deputy thought his wrist might break. He and another deputy tackled Gilliland, and a different deputy released his German shepherd on him “to prevent injuries to deputies.” The dog bit Gilliland’s hip.
Gilliland was hospitalized and treated for two puncture wounds, then jailed for battery on a police officer and resisting arrest with violence, a felony. The deputy suffered a “minor” wrist injury and a scraped knee, the report shows.
Gilliland had forgotten his debit card, he told USA TODAY and ProPublica, and before the deputies arrived, he and the bar manager had agreed he would pay his tab the next day. They explained as much to the deputies after a security guard called them, the report shows. But the deputies still wouldn’t let him leave over concerns he would drive home drunk. Gilliland acknowledged being “smart” with the deputies. The next thing he remembers, he was “eating the pavement.”
“I was obviously intoxicated, but I was no threat,” he said. “There’s no way I could have twisted his finger if he had his knee on my back and three others were handcuffing me.”
The deputies never charged Gilliland for failing to pay his tab, and prosecutors dropped the battery charge, court records show. But he continued to face a felony charge of resisting arrest with violence, which carries a maximum sentence of five years imprisonment. He said his attorney told him that the video of the incident did not “look good” for him. (When reporters requested photos and videos from the case, the sheriff’s office said it possessed none, even though the report states “photographs were taken of the injuries.”)
Gilliland took a plea agreement that reduced the felony charge to a misdemeanor. He remains on probation for another year. As part of the deal, he must pay a fine, take an anger management class and write apology letters to all of the deputies involved in the incident.
“I did it because I had to, not because I wanted to,” Gilliland said. “I don’t think I was treated fairly. I feel like I should have gotten a letter of apology.”
His public defender gave him the details he needed to write the letters; he addressed them to each of the five deputies by name.