Filing # 113646493 E-Filed 09/20/2020 05:43:26 PM

IN THE DISTRICT COURT OF APPEAL, STATE OF FLORIDA

FIRST DISTRICT
_____________________

Case No.: 1D20-2193

L.T. No.: 2020 CA 1011
_____________________
RECEIVED, 09/20/2020 05:44:29 PM, Clerk, First District Court of Appeal

FLORIDA POLICE BENEVOLENT ASSOCIATION, INC.,

JOHN DOE 1, and JOHN DOE 2,

Appellants,
v.
CITY OF TALLAHASSEE, FLORIDA,

Appellee.
________________________________________

ANSWER BRIEF OF NEWS MEDIA INTERVENORS

__________________________________________________

ON APPEAL FROM THE SECOND JUDICIAL CIRCUIT

IN AND FOR LEON COUNTY, FLORIDA
_____________________________________________________

Carol Jean LoCicero

Mark R. Caramanica
Daniela B. Abratt
THOMAS & LoCICERO PL
601 South Boulevard
Tampa, FL 33606
Telephone: (813) 984-3060
Facsimile: (813) 984-3070
clocicero@tlolawfirm.com
mcaramanica@tlolawfirm.com
dabratt@tlolawfirm.com

Attorneys for News Media Intervenors

 TABLE OF CONTENTS
TABLE OF CONTENTS ........................................................................................... i
TABLE OF AUTHORITIES ................................................................................... iii

INTRODUCTION .....................................................................................................1
STATEMENT OF THE CASE AND OF THE FACTS ...........................................3
Officer John Doe 1...........................................................................................4

Officer John Doe 2...........................................................................................5

Public Records Requests .................................................................................6
Procedural History ...........................................................................................6

SUMMARY OF THE ARGUMENT ........................................................................8

ARGUMENT ...........................................................................................................11
I. Standard of Review is de novo ............................................................11

II. Marsy’s Law Can and Must Be Read Consistent with the
Constitutional Right of Access ............................................................11
III. Marsy’s Law Does Not Apply to Police Officers’ On-Duty
Actions.................................................................................................17
A. Law Enforcement Officers are Routinely Treated
Differently Under the Law ........................................................18
B. Marsy’s Law Disclosure Provisions Must Also Be
Interpreted in Context ...............................................................22
1. “Victim” is Ambiguous and Requires Interpretation .....23

2. The Purpose of Marsy’s Law is to Balance Victims’

Rights with Defendants’ Rights During the Criminal
Process ............................................................................25
IV. Marsy’s Law Does Not Protect Identifying Information Such as
Names ..................................................................................................33

i
CONCLUSION ........................................................................................................39
CERTIFICATE OF SERVICE ................................................................................40

CERTIFICATE OF COMPLIANCE WITH FLA. R. APP. P. 9.210 .....................41

ii
 TABLE OF AUTHORITIES

CASES ........................................................................................................... PAGE(S)

Advisory Op. to Gov. re Implementation of Amend. 4, The Voting

Restoration Amend.,
288 So. 3d 1070 (Fla. 2020) ............................................................................... 24

Alford v. Haner,
333 F.3d 972 (9th Cir. 2003) ............................................................................... 20

Alterra Healthcare Corp. v. Estate of Shelley,

827 So. 2d 936 (Fla. 2002) .................................................................................. 13

Am. Civil Liberties Union of Ill. v. Alvarez,

679 F.3d 583 (7th Cir. 2012) ............................................................................... 20
Bacon v. McKeithen,
No. 5:4-cv-37-S-CJK, 2014 WL 12479640 (M.D. Fla. Aug. 28,
2014) ..................................................................................................................... 21

Benjamin v. Tandem Healthcare, Inc.,

998 So. 2d 556 (Fla. 2008) ........................................................................... passim

Bd. of Trustees, Jacksonville Police & Fire Pension Fund v. Lee,

189 So. 3d 120 (Fla. 2016) ................................................................................... 14

Bludworth v. Palm Beach Newspapers, Inc.,

476 So. 2d 775 (Fla. 4th DCA 1985) ................................................................... 12

Brayshaw v. City of Tallahassee, Fla.,

709 F. Supp. 2d 1244 (M.D. Fla. 2010) .......................................................... 20,38

Byron, Harless, Schaffer, Reid & Ass'n v. State,

360 So. 2d 83 (Fla. 1st DCA 1978) ..................................................................... 13

Cent. Fla. Reg'l Transp. Auth. v. Post-Newsweek Stations Orlando

157 So. 3d 401 (Fla. 5th DCA 2015) .................................................................... 13
City of Centerville v. Knab,
136 N.E. 3d 808 (Ohio Ct. App. 2019) ................................................................ 32

iii
Crist v. Fla. Ass'n of Criminal Defense Lawyers, Inc.,
978 So. 2d 134 (Fla. 2008) .................................................................................. 22
Dade Cty. Aviation Consultants v. Knight Ridder, Inc.,
800 So. 2d 302 (Fla. 3d DCA 2001) ..................................................................... 13

Dep't of Revenue ex rel Sherman v. Daly,

74 So. 3d 165 (Fla. 1st DCA 2011) ..................................................................... 25

Dep't of State v. Hollander,

256 So. 3d 1300 (Fla. 2018) ........................................................................... 23,26

Eicherly v. Comm'n on Judicial Performance,

No. A151723, 2019 WL 1552856 (Cal. App. 1st Dist. Apr. 10,
2019) ..................................................................................................................... 30
Ex Parte Littlefield,
540 S.E. 2d 81 (S.C. 2000) .............................................................................. 28,29

Fla. Soc'y of Ophthlamology v. Fla. Optometric Ass'n,

489 So. 2d 1118 (Fla. 1986) ................................................................................ 22

Glik v. Cunniffe,
655 F.3d 78 (1st Cir. 2011) .................................................................................. 20

Israel v. DeSantis,
269 So. 3d 491 (Fla. 2019) . ............................................................................ 33,34

Jackson v. Consol. Gov't of City of Jacksonville,

225 So. 2d 497 (Fla. 1969) ................................................................................... 15

Krischer v. D'Amato,
674 So. 2d 909 (Fla. 4th DCA 1996) ................................................................... 12

Lightbourne v. McCollum,
969 So. 2d 326 (Fla. 2007). .................................................................................. 12

L.T. v. State,
296 So. 3d 490 (Fla. 1st DCA 2020). .................................................... 26,27,32,33

Miami Herald Publ'g Co. v. Marko,

352 So. 2d 518 (Fla. 1977) ............................................................................. 20,21

iv
Michel v. Douglas,
464 So. 2d 545 (Fla. 1985) .................................................................................. 13
Mills v. Doyle,
407 So. 2d 348 (Fla. 4th DCA 1981) ................................................................... 13

Nat’l Collegiate Athletic Ass’n v. Associated Press,

18 So. 3d 1201 (Fla. 1st DCA 2009) ............................................................... 12,13

Notami Hosp. of Fla., Inc. v. Bowen,

927 So. 2d 139 (Fla. 1st DCA 2006) .................................................................... 16

People v. Carter,
No. C078010, 2018 WL 5603161 (Cal. App. 3d Dist. Oct. 30,
2018). .................................................................................................................... 30
Pleus v. Crist,
14 So. 3d 941 (Fla. 2009) ............................................................................... 33,34

Post-Newseek Stations, Fla. Inc. v. Doe,

612 So. 2d 549 (Fla. 1992). .................................................................................. 34

Ross Yordy Constr. Co. v. Naylor,

55 F.3d 285 (7th Cir. 1995) . ................................................................................ 29

Shevin v. Byron, Harless, Schaffer, Reid & Ass'n, Inc.,

379 So. 2d 633 (Fla. 1980) .................................................................................. 13

Smith v. City of Cumming,

212 F.3d 1332 (11th Cir. 2000) ........................................................................... 20

State v. Butler,
69 So. 771 (Fla. 1915) ......................................................................................... 16

State v. Kostelecky,
906 N.W.2d 77 (N.D. 2018). ................................................................................ 30

Thornber v. City of Fort Walton Beach,

534 So. 2d 754 (Fla. 1st DCA 1988) ..................................................................... 4

Tribune Co. v. Cannella,

438 So. 2d 516 (Fla. 2d DCA 1983) ..................................................................... 38

v
Tribune Co. v. Cannella,
458 So. 2d 1075 (Fla. 1984) ................................................................................. 38
Turner v. Lieutenant Driver,
848 F.3d 678 (5th Cir. 2017) ................................................................................ 20

Wilson v. Crews,
34 So. 2d 114 (Fla. 1948) ................................................................................ 15,16

Zingale v. Powell,
885 So. 2d 277 (Fla. 2004) ......................................................................... 11,15,22

STATUTES/RULES

Art. I, § 16, Fla. Const. ....................................................................................... passim

Art. I, § 23, Fla. Const. ......................................................................................... 13,21

Art. I, § 24, Fla. Const. ....................................................................................... passim
Art. I, § 24, S.C. Const. .............................................................................................. 28

Fla. Stat. § 119.01(1).................................................................................................. 12

Fla. Stat. § 119.011(3)(c)2 ......................................................................................... 35

Fla. Stat. § 119.011(3)(d) ........................................................................................... 34

Fla. Stat. § 119.071(2)(c)1 ......................................................................................... 34

Fla. Stat. § 119.071(2)(h) ........................................................................................... 35

Fla. Stat. § 119.071(2)(n) ........................................................................................... 36

Fla. Stat. § 119.071(4)(c) ........................................................................................... 36

Fla. Stat. § 119.071(4)(d) ...................................................................................... 18,36

Fla. Stat. § 776.05 ...................................................................................................... 19

Fla. Stat. § 776.06 ...................................................................................................... 19

Fla. Stat. § 784.07(2)(c) ............................................................................................. 19

Fla. Stat. § 784.021 ................................................................................................. 5,19

vi
Fla. Stat. § 914.15 ................................................................................................. 18,36

Fla. Stat. § 943.10(1)........................................................................................ 18,31,32

Fla. Stat. § 960.03(14)........................................................................................... 30,31

Fla. Stat. § 960.194(1)(b) ........................................................................................... 31

Fla. Stat. § 960.194(e) ................................................................................................ 31

Fla. R. App. P. 9.200(a)(1)........................................................................................... 4

Fla. R. App. P. 9.310(b)(2) .......................................................................................... 8

OTHER AUTHORITIES
Fla. Att'y Gen. Op. 2010-37,
2010 WL 3457642 (Sept. 2, 2010) ................................................................. 18,36

N.D. Att'y Gen., "Guidance On Marsy's Law" (Aug. 1, 2017)

https://attorneygeneral.nd.gov/sites/ag/files/documents/MarsysLaw
-Guideance.pdf ...................................................................................................... 35

S.D. Att’y Gen. Op. No. 16-02,

2016 WL 7209783 (Dec. 5, 2016) .................................................................. 35,36

vii
 INTRODUCTION

This appeal concerns Appellants’ attempt to undermine the public’s right to

meaningfully examine the on-duty actions of law enforcement officers who, as

agents of government, have authority to deprive citizens of their liberty—be it

through mere temporary detainment or the ultimate deprivation: lethal force. In this

case, the Doe police officers engaged in that ultimate deprivation while on-duty

and in response to separate calls for service, resulting in the deaths of two citizens.

The Doe police officers in this appeal now take the position that the public has no

right to know the most basic information about them in relation to these shootings:

their names.

Appellants ask this Court to forever secrete this information pursuant to a

Florida constitutional provision commonly known as “Marsy’s Law,” a set of

rights designed to provide crime “victims” a greater voice and means to participate

during the criminal prosecution and incarceration terms of their victimizers.

Specifically, the section of Marsy’s Law relied upon gives “victims” of crime “the

right to prevent the disclosure of information or records that could be used to

locate or harass the victim or the victims’ family….” Art. I, § 16(b)(5), Fla. Const.

In this case, of course, the “victimizers” are both dead, there will be no criminal

prosecution, and, therefore, there is no “victimizer” for which Marsy’s Law

contemplates protection against. In arguing for secrecy related to their own

1
government actions resulting in two deaths, Appellants nonetheless claim the Doe

Officers are Marsy’s Law “victims” of the crime of assault because the civilians

they ultimately shot and killed had brandished weapons during the respective

encounters.

But whether this is true, and whether their responsive actions were

ultimately justified, is immaterial to the legal issue raised by this appeal. As the

Circuit Court found, keeping the officers’ identities secret in this case is

incompatible with the public’s broad constitutional and statutory rights to engage

in oversight and inspect the public records related to the shootings that include the

officers’ names. See Art. I, § 24(a), Fla. Const.; Ch. 119, Fla. Stat. (2019). It would

also conflict with well-established case law acknowledging that police officers

have no cognizable privacy interest in their public, on-duty actions and, in fact, the

public has a First Amendment-based right to freely document those actions.

Thus, in considering the purpose behind Marsy’s Law, the Circuit Court

correctly reconciled the right to access public records documenting official police

action with those afforded under Marsy’s Law, concluding that police officers

cannot hide their identities from the public with regard to on-duty actions that are

inherently fraught with danger. It also correctly found that under Marsy’s Law

“victim” identities alone are simply not protected. This too is consistent with

Marsy’s Law’s plain language and the reality that a victim’s identity inevitably

2
becomes public during the course of a criminal prosecution. Indeed, the accused

has a constitutional right to confront their accuser.

As the Circuit Court recognized, permitting law enforcement officers to

“avail themselves of ‘victim’ status under Marsy’s Law would create a situation in

which officers could act with virtual anonymity” any time a physical confrontation

or perceived threat to their life occurs. (R. 354). It therefore correctly held that the

seemingly competing public access and Marsy’s Law constitutional provisions are

not in conflict and can be given a harmonious reading. It is one that recognizes the

public’s right to hold government accountable when, like here, its agents exercise

the most extreme form of power, while also giving proper construction to a law

designed to give crime “victims” a greater voice during the criminal process. That

decision should be affirmed in all respects.

STATEMENT OF THE CASE AND OF THE FACTS

The Intervenor News Media parties1 first must correct an assertion

Appellants made in their opening brief, that the Appellees stipulated to all the facts

as well as the legal conclusion that the Doe Officers “are persons and were the

victims of criminal acts.” Appellants’ Brief (“App. Br.”) at 23. Rather, the City

stipulated to the facts “as presented in the PBA’s pleadings with regard to what

1
The News Media consist of The First Amendment Foundation; Florida Press
Association; Gannett Co., Inc. (whose properties include the Tallahassee
Democrat); Miami Herald Media Company; and The New York Times Company.

3
transpired” and, noting that it had no personal knowledge of how the officers felt,

did not object to the Circuit Court finding that the officers were in fear and acted

accordingly. (R. 403-404). But neither the City nor the News Media stipulated that

the officers were victims of a crime. Rather, the City did not dispute that the

officers were met with the threat of deadly force and were thus justified in their use

of deadly force.2 (R. 410). Both the City and News Media agreed that the Circuit

Court had no factual disputes to resolve in order to address the legal questions

before it. (R. 404, 420).

Officer John Doe 1

Officer Doe 1 is a Tallahassee Police Department (“TPD”) officer who

responded to a call for service on May 19, 2020 by a civilian who claimed to have

been beaten by a white male. (R. 73; R. 84, ¶ 64). Upon arriving at the suspect’s

location, the officer found him hiding in the bushes, told the suspect to raise his

hands, and saw him holding a knife. (Id. at ¶ 65). The suspect then allegedly rushed

toward the officer brandishing the knife, and the officer shot and killed the suspect

2
Appellants repeatedly refer to recent grand jury findings related to the shooting in
their brief. See App. Br. 6. However, the grand jury presentment is outside of the
record and therefore not properly before this Court. See Fla. R. App. P. 9.200(a)(1)
(“the record shall consist of all documents filed in the lower tribunal”) (emphasis
added); Thornber v. City of Fort Walton Beach, 534 So. 2d 754, 755 (Fla. 1st DCA
1988) (“That an appellate court may not consider matters outside the record is so
elemental there is no excuse for an attorney to attempt to bring such matters before
the court.”).

4
in response. (R. 84-85, ¶ 65; R. 255). Appellants claim that this incident renders

Officer Doe 1 a “victim” of aggravated assault with a deadly weapon for purposes

of Marsy’s Law. (Id. ¶ 66).

Officer John Doe 2

On the morning of May 27, 2020, TPD Officer Doe 2 responded to a call for

service relating to a stabbing in which the suspect fled the scene. (R. 73; R. 87, ¶¶

79, 83). The officer found the suspect in a public roadway outside an apartment

complex, and according to the Petition below, the suspect “aggressed towards Doe

2 and punched his arms out in a shooting stance.” (R. 87, ¶¶ 81-82, 85; R. 88, ¶

92). Recognizing the suspect was pointing a firearm at him, Officer Doe 2

“partially exit[ed] his patrol vehicle and discharged his firearm,” killing the

suspect. (R. 88, ¶ 93; R. 89, ¶ 96; R. 313). Appellants claim that Officer Doe 2 is a

“victim” of an aggravated assault with a deadly weapon under Fla. Stat. §

784.021.3 (R. 88, ¶ 95). They also claim that after the shooting, “bystanders” began

to “threaten” both Officer Doe 2 and another officer who was on the scene (whose

name is not at issue here).

3
Appellants inappropriately refer to recent, extra-record grand jury findings
regarding this shooting incident as well. See App. Br. 12. Again, it was improper to
do so and must be ignored. In any event, these findings in no way factor in this
Court’s consideration of the purely legal question it faces in this appeal.

5
 Public Records Requests

On June 12, 2020, counsel for the News Media made a public records

request on their behalf for records containing the name of Officer Doe 2. (R. 331-

332, 336). On June 16, 2020, TPD released certain police reports regarding both

Officers Doe 1 and 2 but, due to this litigation, redacted their names pursuant to

Marsy’s Law. (R. 190-191). The redacted reports, however, reference an “officer

involved shooting” and do not list the officers as “victims.” (See, e.g., R. 201, ¶¶ 4-

5; R. 202, ¶¶ 10-11; R. 229, 236, 275).

Procedural History

This issue first came before the Circuit Court on June 1, 2020, when

Appellants filed a Verified Motion for Emergency Injunction to prevent the

disclosure of Officer Doe 2’s name only. (R. 6). After a hearing, the Circuit Court

denied the emergency motion on June 4, 2020. (R. 65-66, 173-174). The City then

gave Appellants five days to seek additional relief before releasing the names. (R.

91, ¶¶ 116-117).

In anticipation of the Appellants’ seeking such additional relief, on June 10,

2020, the News Media filed a motion to intervene (R. 67), which the Circuit Court

granted on June 24, 2020. (R. 177). Two days later, on June 12, Appellants filed

their Petition, seeking declaratory, mandamus, and injunctive relief that law

6
enforcement officers should qualify as victims under Marsy’s Law and prohibiting

the release of their names. (R. 72).

On June 25, 2020, the City filed an Answer and Response to the Petition,

asserting that Marsy’s Law does not apply to on-duty law enforcement officer

actions. (R. 178). The City, as custodian of the subject records, thus maintains that

the records are public and that the identities of the Doe Officers as contained

within these records are also public information. (R. 195-196). The News Media

filed a memorandum of law on June 29, 2020, also arguing that Marsy’s Law was

not intended to protect the identities of law enforcement officers.4 (R. 198-200).

After expedited discovery and a telephonic hearing, the Circuit Court

entered an order on July 24, 2020, denying the relief sought in the Petition and

4
Again including extra-record citations, Appellants reference numerous news
pieces throughout their Brief in an attempt to portray the News Media as changing
their position on the worth and scope of Marsy’s Law. However, several articles
are editorial/opinion pieces, including one from Jeb Bush and another from the
Alachua County Sheriff (a Marsy’s Law advocate), that clearly state that the views
expressed are those of the authors and not necessarily the publications. In any
event, none has any import to the legal analysis required here. Moreover, the News
Media dispute Appellants’ repeated mischaracterization of their interest in this
matter. Throughout their Brief, Appellants also attempt to paint the News Media
as having pre-judged the propriety of the Doe Officers’ actions and wanting to
craft their own critical narrative of events. (App. Br. 15, 31). This is false, and the
News Media have explicitly stated on record that they have reached no pre-
conceived conclusions in this regard. (R. 418-419). Rather, their interest lies only
in exercising the right to independent review of relevant records related to the
subject officers. That is, engaging in the very public oversight that open
government laws exist to facilitate.

7
holding that on-duty police officers cannot be “victims” under Marsy’s Law based

on the intent of the constitutional provision and other First Amendment and Florida

constitutional access rights. (R. 351, 355). It also held that Section 16(b)(5) of

Marsy’s Law does not prohibit the release of crime victims’ names. (R. 355).

The Appellants immediately filed a Notice of Appeal (R. 356) as well as a

motion to enforce an automatic stay under Fla. R. App. P. 9.310(b)(2), which the

City and the News Media opposed. (R. 363, 366, 370). The Circuit Court granted

that motion on July 31, 2020. (R. 378).

The City and News Media filed a joint motion to expedite the appeal with

this Court on August 4, 2020. On August 25, 2020, it entered an order granting that

motion and setting an expedited briefing schedule.

SUMMARY OF THE ARGUMENT

The Circuit Court properly ordered the disclosure of the Doe Officers’

names and held that Marsy’s Law was not intended to protect law enforcement

officers when acting in their official capacity. First, the public’s constitutional right

to access public records and review the actions of government can and must be

harmonized with the victims’ rights afforded under Marsy’s Law. Section 24(a) of

the Florida Constitution and its implementing statutes (Chapter 119, Florida

Statutes) grant the public broad rights to access public records with the goal of

promoting governmental transparency. Because this serves a different purpose

8
from Marsy’s Law, the two can readily be harmonized. The Circuit Court’s

interpretation of Article I, Section 16(b)(5), the disclosure provision of Marsy’s

Law, gives effect to both constitutional provisions, without making either

subservient to the other.

Second, the Circuit Court’s interpretation of “victim” to exclude on-duty

law enforcement officers is based on the express intent of Marsy’s Law and creates

needed balance between the two constitutional provisions at issue. Appellants

conclusively presume that the term “victim” as defined at Article I, Section 16(e)

and its inclusion of the term “person” is unambiguous, which therefore negates the

need for any interpretation. This is simply not true, as even the Florida Supreme

Court has recognized the provision does not specify who can be deemed a “person”

under the definition. An examination of the prefatory and surrounding text was

therefore necessary and appropriate, and it reveals that the clear intent of the law

was to provide victims a voice and means to participate in the criminal justice

process against their victimizers. It follows therefore that on-duty government

officers cannot be “victims” under this provision, as they themselves are a key

component of the criminal justice process who serve to investigate crimes,

apprehend suspects, and assist victims of the crimes they investigate in pursuing

their Marsy’s Law rights. Moreover, with respect to Officers Doe 1 and 2, their

9
alleged aggressors are deceased, and thus no purpose of Marsy’s Law is fulfilled

by concealing their names, as there is no possibility of an arrest or criminal trial.

Finally, identifying information, such as names, is not specifically made

confidential nor protected by the disclosure provisions of Marsy’s Law. This is

consistent with laws that generally maintain that names are not private information.

With respect to police officers specifically, their names are not exempt elsewhere

under the law. This is of course not surprising, as officers display their names and

badge numbers on their uniforms, and the law holds they lack any right of privacy

in their public, on-duty actions. Furthermore, the public has a well-recognized First

Amendment right to record the on-duty, public actions of police officers. To

exclude their names from public records would therefore contravene established

law and also severely impair the public’s right to review documents related to an

officer, such as personnel files, that can only be requested by knowing the officer’s

name.

Appellants ultimately refuse to recognize that the Marsy’s Law provisions

that protect a victim from harassment and intimidation do not exist to shield

government action from public scrutiny. Marsy’s Law cannot be twisted to secrete

the names of government agents imbued with the authority to wield lethal force.

Adopting Appellants’ interpretation of Marsy’s Law would enable police officers

10
to conduct their official duties with anonymity, turning the entire notion of public

accountability on its head.

It must be rejected, and the decision below should be affirmed.

ARGUMENT
I. Standard of Review is de novo.

This Court reviews a Circuit Court’s interpretation of constitutional

provisions de novo. See Benjamin v. Tandem Healthcare, Inc., 998 So. 2d 566, 570

(Fla. 2008); Zingale v. Powell, 885 So. 2d 277, 280 (Fla. 2004).

II. Marsy’s Law Can and Must Be Read Consistent with the Constitutional
Right of Access.

As noted above, this appeal primarily implicates two Florida constitutional

provisions: the public’s right to access government records and the “victim” rights

afforded under Marsy’s Law. Appellants argue that Section 16(b)(5) of Marsy’s

Law effectively operates as an exemption to the public’s access rights because it

conflicts with that right as to a specific kind of record. (App. Br. 27-28).

Appellants’ attempts to manufacture a false conflict are misguided. As discussed

in this section, when both are read in context and applicable rules of constitutional

interpretation applied, no actual conflict exists in the manner urged. This analysis

begins by reviewing the broad constitutional right of access to public records.

11
 Approved by the voters in 1992, Article I, Section 24(a) of the Florida

Constitution5 provides the public with the right to inspect and copy the records of

any state or local agency. Buttressing our state’s constitutional commitment to

open government is the Public Records Act, Chapter 119 of the Florida Statutes. It

declares that “[i]t is the policy in this state that all state, county and municipal

records are open for personal inspection and copying by any person” and that

“[p]roviding access to public records is a duty of each agency.” § 119.01(1), Fla.

Stat. (2019).

Laws fostering government transparency are liberally construed in favor of

public access, and any exemptions to that right are narrowly construed and limited

to their designated purpose. Lightbourne v. McCollum, 969 So. 2d 326, 332-33

(Fla. 2007); Krischer v. D’Amato, 674 So. 2d 909, 911 (Fla. 4th DCA 1996);

Bludworth v. Palm Beach Newspapers, Inc., 476 So. 2d 775, 779 n.1 (Fla. 4th

DCA 1985). Indeed, if there is any doubt about the application of the law to a

particular case, “the doubt is resolved in favor of disclosing the documents.” Nat’l

Collegiate Athletic Ass’n v. Associated Press, 18 So. 3d 1201, 1206 (Fla. 1st DCA

5
Article I, Section 24(a) of the Florida Constitution grants “[e]very person . . . the
right to inspect or copy any public record made or received in connection with the
official business of any public body, officer or employee of the state, or persons
acting on their behalf.”

12
2009); see also Dade Cty. Aviation Consultants v. Knight Ridder, Inc., 800 So. 2d

302, 304 (Fla. 3d DCA 2001).

Accordingly, Florida’s constitutional right to privacy (see Article I, Section

23) makes plain that general privacy rights are subordinate to the public’s

constitutional right to access: “This section shall not be construed to limit the

public’s right of access to public records.” Art. I, § 23, Fla. Const. Thus, absent a

specific, applicable statutory exception, public employees—including police

officers—generally lack privacy rights in records about their public actions.

Alterra Healthcare Corp. v. Estate of Shelley, 827 So. 2d 936, 940 n.4 (Fla. 2002);

see also Michel v. Douglas, 464 So. 2d 545 (Fla. 1985); Shevin v. Byron, Harless,

Schaffer, Reid & Ass’n, Inc., 379 So. 2d 633 (Fla. 1980); Mills v. Doyle, 407 So. 2d

348 (Fla. 4th DCA 1981).

Elevating access above privacy reflects the recognition that “Florida’s public

records law . . . promote[s] a state interest of the highest order.” Byron, Harless,

Schaffer, Reid & Ass’n v. State, 360 So. 2d 83, 97 (Fla. 1st DCA 1978), reversed

on other grounds, 379 So. 2d 633 (Fla. 1980). That interest is “to promote public

awareness and knowledge of government actions in order to ensure that

governmental officials and agencies remain accountable to the people.” Cent. Fla.

Reg’l Transp. Auth. v. Post-Newsweek Stations, Orlando, Inc., 157 So. 3d 401, 404

(Fla. 5th DCA 2015). The Florida Supreme Court has gone so far as to declare the

13
right of access to public records as a “cornerstone of our political culture.” Bd. of

Trustees, Jacksonville Police & Fire Pension Fund v. Lee, 189 So. 3d 120, 124

(Fla. 2016) (citation omitted).

On the other hand, Florida’s version of Marsy’s Law was approved in

November 2018. As discussed in more detail in Section III infra, it provides a

series of rights to “victims” of crime in the context of a criminal prosecution and

conviction. Its purpose is clearly outlined in the law itself:

To preserve and protect the right of crime victims 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….

Art. I, § 16(b), Fla. Const.

It, for example, provides “victims”6 the “right to due process and to be

treated with fairness and respect for the victim’s dignity,” the right “within the

judicial process, to be reasonably protected from the accused and any person acting

on behalf of the accused” and the right “to have the safety and welfare of the

victim and the victim’s family considered when setting bail, including setting

6
In relevant part, Marsy’s Law defines a “victim” as “a person who has suffers
direct or threatened physical, psychological, or financial harm as a result of the
commission or attempted commission of a crime….” Art. I, § 16(e), Fla. Const.

14
pretrial release conditions that protect the safety and welfare of the victim and the

victim’s family.” Art. I, § 16(b)(1), (3), (4), Fla. Const.

Despite the conflict urged by Appellants, the Circuit Court properly

harmonized the access rights afforded by Article I, Section 24 and Marsy’s Law

rights found within Article I, Section 16 in a manner that promotes the distinct

interests of each. See Zingale, 885 So. 2d at 283; Benjamin, 998 So. 2d at 570 (“we

must give effect to every provision and every part thereof.”); Jackson v. Consol.

Gov’t of City of Jacksonville, 225 So. 2d 497, 500-01 (Fla. 1969) (When

constitutional provisions conflict, every reasonable effort must be made to give

effect to and reconcile both provisions).

Appellants’ argument that such harmonization is unnecessary because

Article I, Section 24 is subservient to Marsy’s Law’s specific, and more recent,

language of Section 16(b) is unavailing and not supported by the cited case law.

(App. Br. 27-28). As the Florida Supreme Court has noted, and as Appellants’

counsel recognized below (R. 398-99), a new constitutional provision prevails over

prior provisions of the Constitution only if it specifically repeals the former

provision or if the two provisions simply cannot be harmonized. Jackson, 225 So.

2d at 500. Distinct constitutional provisions are repugnant to each other and thus

cannot be harmonized “only when they relate to the same subject, are adopted for

the same purpose, and cannot be enforced without material and substantial

15
conflict.” Wilson v. Crews, 34 So. 2d 114, 118 (Fla. 1948) (emphasis added); State

v. Butler, 69 So. 771, 779 (Fla. 1915) (same).

Moreover, Appellants’ citation to Notami Hospital of Fla., Inc. v. Bowen,

927 So. 2d 139, 142 (Fla. 1st DCA 2006), is misleading. See App. Br. 26. That

case does not hold that statutory language generally yields to constitutional

language; rather, the case explains that if a statute conflicts with the express

mandate of the constitution, the statute fails. See Notami, 927 So. 2d at 142

(holding a statute that was enacted to implement a constitutional amendment

unconstitutional because it placed drastic limits on the rights expressed in that

amendment and thus directly negated its intent).

Finally, Appellants argue that Section 24(a) contains a “significant

exception” that prevents access to records that are “specifically made confidential”

by the Constitution, including Marsy’s Law. (App. Br. at 27). But Marsy’s Law

does not in itself make any information or record confidential; rather, it merely

grants crime victims the right to prevent the disclosure of already-confidential

records. See Fla. Const. Art. I, § 16(b)(5). Coupled with the narrow construction

applicable to any law that purports to exempt public record information from

disclosure, it is clear Section 16(b)(5) of Marsy’s Law does not operate as

Appellants’ suggest.

16
 In this case, the two constitutional provisions address entirely different

subjects (i.e., citizens’ access to public records, on the one hand, and crime

victims’ rights and safeguards, on the other) and were by no means adopted for the

same purpose. Considering the aforementioned purposes of our open government

laws—broad construction with corresponding narrow constructions of any law that

could potentially erode that right—the harmonious reconciliation reached by the

Circuit Court was proper, and Article I, Section 24 need not yield to Article I,

Section 16(b).

III. Marsy’s Law Does Not Apply to Police Officers’ On-Duty Actions.

The Circuit Court correctly held that on-duty law enforcement officers

cannot avail themselves of the protections of Marsy’s Law. This conclusion

recognizes that police officers play a unique role in society, one that comes with

great risk, power, and responsibility. It in turn provides unique benefits. For

example, under Florida law police officers enjoy a public records exemption (that

pre-dates Marsy’s Law) for their home addresses. But the gravity of their

profession also means they are subjected to heightened scrutiny and public debate.

It also means they lack privacy rights in their public, on-duty actions and are

routinely treated differently than the public-at-large when government

accountability is implicated. This all leads to the conclusion that police officers

17
cannot seek shelter under Marsy’s Law to prevent the public from knowing about

their official actions.

Moreover, the term “victim” as defined within Marsy’s Law is ambiguous.

Thus, the text of Marsy’s Law itself and its fundamental purpose support an

interpretation that on-duty police officers cannot claim victim status.

A. Law Enforcement Officers are Routinely Treated Differently Under

the Law.

As the Circuit Court found, because of their unique position in society, law

enforcement officers are treated differently from ordinary civilians. (R. 354-55).

This is so because law enforcement officers are uniquely positioned within the

criminal justice system, with government-sanctioned authority to use lethal

weapons in furtherance of their statutory duties to “make arrests” and “preven[t]

and detec[t] crime.” See Fla. Stat. § 943.10(1).

To be sure, it is dangerous work and to be reserved for those ready to face

daily the risk of violence and bodily harm. That is why certain laws do in fact exist

to give them more protection than their civilian counterparts. For example, outside

the ambit of Marsy’s Law and its purported application to police officers, the

Public Records Act already specifically exempts officers’ information about them,

namely phone numbers, home addresses, and dates of birth, a right not afforded to

civilians. See, e.g., Fla. Stat. §§ 119.071(4)(d) and 914.15; Fla. Att’y Gen. Op.

2010-37.

18
 Moreover, acts committed against on-duty police officers are separately

criminalized and provide for enhanced penalties. For example, Sections 776.05 and

776.06 of the Florida Statutes govern the justifiable use of force, including deadly

force, specifically by law enforcement officers while making an arrest. In addition,

Fla. Stat. § 784.07 criminalizes an aggravated assault against a police officer who

“is engaged in the lawful performance of his or her duties.” Not only are the

charges more severe under this statute than those under the general aggravated

assault statute, so are the penalties, and the imposition of a sentence cannot be

suspended, deferred, or withheld. See Fla. Stat. § 784.07(2)(c).7 But there is, of

course, a flip side to these protections, ones designed to ensure the public can

meaningfully hold police officers accountable. Jurisdictions around the country

have uniformly held that police officers lack a right to privacy in their public, on-

duty actions and that the public has a First Amendment right to record police

7
Notably, the Appellants below did not assert that Officers Doe 1 and 2 are
“victims” under Section 784.07, despite alleging that the officers were assaulted in
the course of their duties. (R. 74, ¶ 8; R. 88, ¶ 95; App. Br. 5, 10). Rather, they
asserted that the officers are victims under the general aggravated assault statute,
Florida Statute Section 784.021, in an apparent attempt to align themselves with
civilian victims to claim protections under Marsy’s Law. But they cannot have it
both ways. Indeed, in arguing that they were entitled to an automatic stay of the
Circuit Court’s order, Appellants then emphasized that they were acting in their
official capacity as police officers. (R. 371).

19
actions in public.8 See Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir.

2000) (plaintiff had a First Amendment right to record police officers making

traffic stops because the “First Amendment protects the right to gather information

about what public officials do on public property, and specifically, a right to record

matters of public interest.”); see also Turner v. Lieutenant Driver, 848 F.3d 678,

689 (5th Cir. 2017); Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011); Am. Civil

Liberties Union of Ill. v. Alvarez, 679 F.3d 583, 600-01 (7th Cir. 2012); Alford v.

Haner, 333 F.3d 972, 976 (9th Cir. 2003), reversed on other grounds, 543 U.S.

146 (2004).

For this same reason, the Florida Supreme Court has held that police officers

cannot shield unfavorable information about their official conduct in grand jury

findings, even if they ultimately are not indicted. See Miami Herald Publ’g Co. v.

Marko, 352 So. 2d 518, 522-23 (Fla. 1977). In Marko, a grand jury determined an

officer was justified in his use of deadly force when he shot a man who threatened

8
In fact, a Florida statute that purported to criminalize the publication of names,
addresses, and phone numbers of police officers was ruled unconstitutional as a
violation of the First Amendment. See Brayshaw v. City of Tallahassee, Fla., 709
F. Supp. 2d 1244, 1250 (M.D. Fla. 2010). The court recognized that while police
officer safety was a compelling interest, publishing such information was not in
itself threatening. Id. at 1248-49. The court also noted that the “publication of
truthful personal information about police officers is linked to the issue of police
accountability through aiding in achieving service of process, researching criminal
history of officers, organizing lawful pickets, and other peaceful and lawful forms
of civic involvement that publicize the issue.” Id. at 1249.

20
him during an investigation. Id. at 519. But, despite not indicting him, the grand

jury presentment described other acts of misconduct and offered critical

recommendations. Id. The Court, in recognizing the police officers as

governmental actors, found that their right to privacy did not outweigh the public’s

right to evaluate their actions: “A society governed by representative officials

concomitantly requires citizen review of public action....the legislature has ensured

that any potential harm to public officeholders will be the product of their own

conduct, and not the consequence of an unrestrained body of misguided citizens.”

Id. at 523.

Similarly, the Florida wiretap statute, which criminalizes the unauthorized

recording of another person, cannot be invoked by law enforcement officers acting

in the line of duty. See Bacon v. McKeithen, No. 5:14-cv-37-S-CJK, 2014 WL

12479640, at *3 (M.D. Fla. Aug. 28, 2014) (“[T]here is little societal expectation

of privacy for police officers acting in the line of duty in public places; an

expectation of privacy in these circumstances would undercut societal expectations

of police accountability.”).

These rulings are of course consistent with the fact that Florida’s

constitutional right to privacy, Article I, Section 23, specifically yields in the face

of government transparency, and those additional rulings holding that in general

public employees lack privacy rights in public records about them. See supra at 13.

21
Excepting police officers from the records provisions of Section 16(b) of Marsy’s

Law is consistent with the established legal precedent acknowledging that such

laws must in fact yield if they work to frustrate transparency and the ability to fully

observe police activity. The Circuit Court understood this, and its decision should

be affirmed.

B. Marsy’s Law Disclosure Provisions Must Also Be Interpreted in

Context.

When interpreting a constitutional provision, courts follow principles

parallel to those of statutory interpretation, beginning first with an examination of

the actual language used. Crist v. Fla. Ass’n of Criminal Defense Lawyers, Inc.,

978 So. 2d 134, 139-40 (Fla. 2008). “If that language is clear, unambiguous, and

addresses the matter in issue, then it must be enforced as written.” Id. at 140

(quoting Fla. Soc’y of Ophthalmology v. Fla. Optometric Ass’n, 489 So. 2d 1118,

1119 (Fla. 1986)).

Further, a court endeavors to construe constitutional language “consistent

with the intent of the framers and the voters.” Crist, 978 So. 2d at 140 (quoting

Zingale, 885 So. 2d at 282). The Court is “obligated to give effect to [the] language

[of a Constitutional amendment] according to its meaning and what the people

must have understood it to mean when they approved it.” Benjamin, 998 So. 2d at

570 (internal citations omitted).

22
 In this case, who can constitute a “victim” under Marsy’s Law, is not

straightforward and is, in reality, ambiguous. Thus, context becomes important in

order to understand its meaning. Further, the stated purpose of Marsy’s Law makes

clear it was never intended to apply in the manner urged by Appellants.

1. “Victim” is Ambiguous and Requires Interpretation.

Appellants operate under the misguided and conclusory assumption that the

definition of “victim” within Marsy’s Law is unambiguous and straightforward.

(App. Br. 23, 25-26). In their view, “person” means person. Nothing more. Simple.

But the term in this context is more aptly described as deceptively simple. It does

in fact require interpretation because it does not confront the myriad kinds of

persons or entities that could attempt to claim victim status under the law. The

Florida Supreme Court brought this ambiguity into sharp view when it rejected a

challenge to the amendment’s ballot language that it was misleading because it did

not specifically inform voters whether “victims” could include corporations. See

Dep’t of State v. Hollander, 256 So. 3d 1300, 1311 (Fla. 2018) (recognizing “an

ambiguity of the text” and stating that “[n]othing in Amendment 6 states whether

or not crime victims includes corporations”). Likewise, nothing in the text clearly

indicates whether government entities, or the agents it operates through like law

enforcement officers, could be “victims” under Marsy’s Law.

23
 Contrary to Appellants’ assertion that context is not important (App. Br. 32),

the Florida Supreme Court has routinely held that a word “cannot be read in

isolation” and should be “expounded in its plain, obvious, and common sense,

unless the context furnishes some ground to control, qualify, or enlarge it.”

Advisory Op. to Gov. re: Implementation of Amend. 4, The Voting Restoration

Amend., 288 So. 3d 1070, 1078 (Fla. 2020) (“The words of a governing text are of

paramount concern, and what they convey, in their context, is what the text

means.”) (emphasis added).

For example, in Benjamin, the Florida Supreme Court analyzed the

definitions of “health care facility” and “health care provider” within a

constitutional amendment to determine whether “nursing homes” were included

within those definitions. Benjamin, 998 So. 2d at 570. In conducting its analysis,

the Court specifically looked to language in the statement of purpose

accompanying the amendment, as well as other statutes that included a definition

of “health care facility,” “nursing home,” and “patient,” to inform its interpretation.

Id. at 570-71.

Here, the Circuit Court appropriately examined the prefatory and

surrounding text of Marsy’s Law to understand the amendment’s intent and to

interpret the definition of “victim,” specifically finding that the “express purpose

of Marsy’s Law is to afford crime ‘victims’ the right to be more directly involved

24
throughout the criminal process and to be kept informed of key proceedings.” (R.

353). Its reference to Florida’s constitutional right to access, the First Amendment,

and the Public Records Act for additional context was likewise appropriate. While

Appellants claim that Appellees failed to provide any evidence of intent (App. Br.

32) that intent is explicitly stated with Marsy’s Law itself—to provide victims

rights in the criminal process. And, as stated in a case upon which Appellants rely

(App. Br. 28), the text of the provision itself is the “most reliable and authoritative

expression” of intent. See Dep’t of Revenue ex rel Sherman v. Daly, 74 So. 3d 165,

166 (Fla. 1st DCA 2011).

2. The Purpose of Marsy’s Law is to Balance Victims’ Rights with

Defendants’ Rights During the Criminal Process.

As noted above, the intent of Marsy’s Law is apparent from the text itself.

First, the prefatory text states:

To preserve and protect the right of crime victims 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….

Art. I, § 16(b), Fla. Const. Section 16(d) also states that the “provisions of this

section apply throughout criminal and juvenile justice processes.” Id. § 16(d). This

makes clear that all of the rights afforded to victims under subsection (b) are

intended to be exercised within the operations of the criminal justice system,

25
including, for example, the “right to due process and to be treated with fairness and

respect for the victim’s dignity,” the right “within the judicial process, to be

reasonably protected from the accused and any person acting on behalf of the

accused,” and the right “to have the safety and welfare of the victim and the

victim’s family considered when setting bail, including setting pretrial release

conditions that protect the safety and welfare of the victim and the victim’s

family.” Art. I, § 16(b)(1), (3), (4), Fla. Const.

The Florida Supreme Court reiterated that this is the overarching “chief

purpose” of the amendment and that is what the ballot summary reflected to

voters.9 See Hollander, 256 So. 3d at 1308. Indeed, this Court has previously

acknowledged that Marsy’s Law victim rights apply in the context of a criminal

case:

Constitutional and statutory provisions granting victim’s rights

address a concern that the criminal justice system is overtly
defendant-focused and that victims and their families are being
alienated. These provisions call for a careful balance of the rights of
the defendant and those of the victim and/or the victim’s family
without impacting the basic constitutional foundations of the criminal
justice system.

9
The portion of the ballot summary addressing crime victims’ rights stated:
“RIGHTS OF CRIME VICTIMS; JUDGES. Creates constitutional rights for
victims of crime; requires courts to facilitate victims’ rights; authorizes victims to
enforce their rights throughout criminal and juvenile justice processes.” Hollander,
256 So. 3d at 1308.

26
L.T. v. State, 296 So. 3d 490, 495 (Fla. 1st DCA 2020). This Court further

acknowledged in L.T., a case upon which Appellants rely, that Marsy’s Law rights

are asserted in and enforced by the court with jurisdiction over a criminal case. Id.

at 497; see also Art. I, § 16(c), Fla. Const. The Court also noted that “Marsy’s Law

does not provide procedures and guidelines as to how its purpose is to be

achieved.” Id. at 499 (finding juvenile victim received adequate notice of criminal

proceedings and meaningful participation); App. Br. 25. Accordingly,

interpretation is proper and necessary.

The Circuit Court below was correct to refer to the prefatory text and other

context to interpret the definition of “victim” and give effect to what voters would

have understood the amendment to mean, as required under Benjamin; which is,

victims’ rights should be on equal footing with those of the accused. By the very

terms of the ballot summary, it cannot be reasonably said that the public approved

text that would shield governmental action from public scrutiny.

As to Appellants’ view of intent, they would have this Court adopt it from a

statement released by Marsy’s Law for Florida, which argues generally that police

officers can be victims under Marsy’s Law. (App. Br. 32). But this “source of

intent,” as Appellants put it, is an after-the-fact position from an advocacy group.

Furthermore, because the alleged aggressors in this case are deceased, no

criminal process against them will ever incept, and as such, Marsy’s Law is simply

27
never invoked. Appellants claim that such an interpretation is absurd because it

affords a crime victim whose accused is alive with more rights than one whose

accused is dead. (App. Br. 24). But that’s not absurd at all – it is what the plain

language of the amendment affords: rights “throughout the criminal and juvenile

justice processes.” See Art. I, § 16(d), Fla. Const. It also recognizes when an

alleged victimizer does survive and charges are filed, the victimizer is

constitutionally entitled to know the identity of his alleged victim.10

What becomes clear then is that while Marsy’s Law rights attach at the time

of victimization, see id. § 16(b), they do not last in perpetuity. Courts have

concluded that, even though the law does not explicitly state if or when these rights

end, victims do indeed lose their rights at the conclusion of a criminal proceeding

or when charges against the accused are dropped. For example, the Supreme Court

of South Carolina in Ex parte Littlefield explained that some victims’ rights under

Marsy’s Law11 change as a criminal proceeding progresses, with some rights

attaching prior to indictment (such as the right to be informed of the accused’s

10
Appellants here argue for too much, that being the ability to now forever
withhold their identities in a case when there is no threat of further “victimization”
by the individuals they shot and killed, while at the same time arguing that
somehow if the individuals had survived and faced prosecution their identities
could also remain secret forever.
11
The Marsy’s Law in South Carolina is nearly identical to that of Florida.
Compare S.C. Const. Art. I, § 24 with Fla. Const. Art. I, § 16(b).

28
arrest), and the remainder attaching post-indictment. 540 S.E. 2d 81, 85 (S.C.

2000). But “[o]nce a criminal case has been resolved and the defendant is

sentenced, the alleged victim loses his victim status under the Victims’ Bill of

Rights.” Id.; see also Ross Yordy Constr. Co. v. Naylor, 55 F.3d 285, 288 (7th Cir.

1995) (finding an individual lost status as a “victim” when the State Attorney

dropped the charges against the defendant).

Accordingly, if this Court were to adopt Appellants’ argument, the Doe

Officers would maintain “victim” status indefinitely, despite their being no

possibility for any criminal action and thus no purpose of Marsy’s Law fulfilled. It

consequently becomes even clearer that the Doe Officers are attempting to abuse

the disclosure provision in Section 16(b)(5) by claiming its protection long after

their alleged victimization has concluded.12 An adoption of their argument would

essentially grant them, as government agents, anonymity indefinitely. This is not

what Marsy’s Law intended, nor what the Article I, Section 24 allows.

The definition of “victim” and its use of “person” is vague; indeed, “person”

is not defined at all. Where a definition is unclear, courts frequently look to other

12
It again should be emphasized that while the Doe Officers cast themselves as
victims, it is the officers’ own actions in shooting two individuals for which they
now seek anonymity. Indeed, Doe 2 has specifically made clear that what he/she
allegedly fears are unspecified threats from the community. The Circuit Court
correctly found this was not the type of threat Marsy’s Law was designed to
mitigate. (R. 353-354).

29
statutes defining the same term for guidance. See Benjamin, 998 So. 2d at 570;

People v. Carter, No. C078010, 2018 WL 5603161, at *2 (Cal. App. 3d Dist. Oct.

30, 2018) (looking to statute that defined “victim” with more specificity than that

in Marsy’s Law provision to determine that husband did not qualify as a “victim”

for purposes of receiving restitution because he was not engaged or married to his

wife at the time the crime against her was committed); Eicherly v. Comm’n on

Judicial Performance, No. A151723, 2019 WL 1552856, at *5 (Cal. App. 1st Dist.

Apr. 10, 2019) (looking to penal code definition of “prosecuting attorney” to

determine the meaning of “prosecuting agency” in Marsy’s Law provision); State

v. Kostelecky, 906 N.W.2d 77, 79 (N.D. 2018) (reviewing definition of

“restitution” in Marsy’s Law versus that in other criminal and civil tort statutes).

Here, the definition of “victim” in Florida Statute Section 960.03, which

covers Victim Assistance laws, is instructive as it too uses the term “person.”

Section 960.03(14) defines “victim” in one of five ways:

(a) A person who suffers personal physical injury or death as a direct

result of a crime;

(b) A person younger than 18 years of age who was present at the
scene of a crime, saw or heard the crime, and suffered a psychiatric or
psychological injury because of the crime but who was not physically
injured;

(c) A person younger than 18 years of age who was the victim of a
felony or misdemeanor offense of child abuse that resulted in a mental
injury as defined by s. 827.03 but who was not physically injured;

30
 (d) A person against whom a forcible felony was committed and who
suffers a psychiatric or psychological injury as a direct result of that
crime but who does not otherwise sustain a personal physical injury or
death; or

(e) An emergency responder, as defined in and solely for the

purposes of s. 960.194, who is killed answering a call for service in
the line of duty.

(emphasis added). By separately setting out “emergency responder”—which

includes law enforcement13—as a type of victim, it is clear that “emergency

responder” was not intended to be the same as “person.” If it were, subsection (e)

would be redundant and serve no purpose. Rather, the statute lays out one specific

situation in which a law enforcement officer can be considered a “victim,” and that

is when that officer is killed in the line of duty, and for the limited purpose of

receiving death benefits under the statute. By extension, the use of “person” in the

Marsy’s Law definition of “victim” was not intended to include law enforcement.14

13
Section 960.194(1)(b) defines “emergency responder” as including law
enforcement officers. Section 960.194(e) defines “law enforcement officer” based
on Section 943.10(1), which defines “law enforcement officer” as a person who is
“elected, appointed, or employed full time by any municipality or the state or any
political subdivision thereof; who is vested with authority to bear arms and make
arrests; and whose primary responsibility is the prevention and detection of crime
or the enforcement of the penal, criminal, traffic, or highway laws of the state.”
14
Section 16(b)(3) in Marsy’s Law also makes a distinction between the “crime
victim” and police by providing that “nothing contained herein is intended to
create a special relationship between the crime victim and any law enforcement
agency or office . . .” Art. I, § 16(b)(3), Fla. Const. Here, obviously, the Doe
Officers are law enforcement, further supporting a construction that Marsy’s Law
draws stark distinction between civilians and law enforcement.

31
 An Ohio appellate court ruled just that in City of Centerville v. Knab, where

it referred to other definitions of “victim” to inform its decision regarding whether

a law enforcement agency could be classified as a “victim” under Ohio’s Marsy’s

Law. 136 N.E. 3d 808, 814-15 (Ohio Ct. App. 2019). The court ultimately held

that, even though Marsy’s Law expanded the meaning of the term “victim” to

include those who are directly or proximately harmed by the crime, it did not

“expressly authoriz[e] sentencing courts to characterize law enforcement agencies

as victims who are entitled to restitution due to their efforts in carrying out their

official duties.” Id. at 815-16.

There is no dispute that the Doe Officers were on-duty, working under the

color of law, in uniform, and using department-issued firearms when they

responded to their respective emergency calls for service. (App. Br. 5, 10-11). As

such, in responding to the scene of a reported crime, they functioned as agents of

the government whose official, statutory duties were to investigate crimes and

identify potential victims of those crimes. See Fla. Stat. § 943.10(1). Had the

alleged aggressors lived, Officers Doe 1 and 2 likely would have been the officers

who arrested them and thereafter played key roles in the investigations and

prosecutions against them. They also may have been the ones to keep the injured

civilians informed of bookings, detention hearings, etc. pursuant to Marsy’s Law.

See L.T., 296 So. 3d at 498 (Sheriff’s Office was responsible for arresting the

32
accused and informing the injured party of her rights under Marsy’s Law, and also

later informed the victim of the accused’s detention hearing).

At bottom, police officers simply cannot be a Marsy’s Law “victim” as a

result of actions occurring while on-duty. As law enforcement officials, they are an

integral part of the criminal justice system and an inherent player in the process

that Marsy’s Law was designed to help victims navigate.

IV. Marsy’s Law Does Not Protect Identifying Information Such As Names.

Finally, names alone of victims are not made confidential by or protected

under Article I, Section 16(b)(5), which, again, gives qualifying victims 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….” This limitation is patently obvious in

the context of police officers who attempt to shield their names from the public

because names are critical for a complete evaluation of an officer’s personnel file

and his training and disciplinary history.

Appellants concede that Marsy’s Law does not explicitly protect names from

disclosure. (App. Br. 29). Instead, they urge the Court to inject into Section

16(b)(5) a provision regarding “identification” of the victim, which plainly is not

there and a court is prohibited from doing. See Israel v. DeSantis, 269 So. 3d 491,

496 (Fla. 2019) (“[I]n construing a constitutional provision, we are not at liberty to

add words that were not placed there originally or to ignore words that were

33
expressly placed there at the time of adoption of the provision.”) (quoting Pleus v.

Crist, 14 So. 3d 941, 945 (Fla. 2009)).

Generally, names are not protected as private under the constitution. See,

e.g., Post-Newsweek Stations, Fla. Inc. v. Doe, 612 So. 2d 549, 552 (Fla. 1992).

(“Any right of privacy that the Does might have is limited by the circumstances

under which they assert that right…Because the Does’ privacy rights are not

implicated when they participate in a crime, we find that closure is not justified”).

This is particularly important with respect to police officers because they can be

criminally charged, disciplined, and terminated for the use of excessive or deadly

force during the line of duty, even if they allege they acted in self-defense. Indeed,

the Doe Officers here were investigated by the grand jury. (App. Br. 6, 12).

Appellants argue that Florida Statute Sections 119.011(3)(d) and

119.071(2)(c)1 would have prohibited the release of their names. (App. Br. 26).

This argument completely misses the mark. First, Section 119.071(2)(c)1 exempts

from disclosure “active criminal investigative information.” Information under

Section 119.011(3)(d) is “active” if it is related to an ongoing investigation with a

reasonable, good faith basis of securing an arrest or prosecution. Here, the alleged

aggressors are both dead, and thus no arrest or prosecution will occur. So these

statutes simply are inapplicable here.

34
 But more importantly, Appellants overlook an explicit exception to the

definition of “criminal investigative information”: the names of victims are

excluded from this definition. See Fla. Stat. § 119.011(3)(c)2. Thus, even assuming

the Doe Officers could be classified as “victims” here—which they cannot—their

names would not be exempt.

And this is generally true of all crime victims under the cited exemption.

Crime victims’ names are not confidential or exempt from disclosure, unless a

specific statutory exemption makes them so. See Fla. Stat. § 119.011(3)(c)2 (“The

name, sex, age, and address of a person arrested or of the victim of a crime” is not

exempt as criminal investigative or intelligence information) (emphasis added); see

also Fla. Stat. §§ 119.071(2)(h) (exempting names of victims of child abuse,

human trafficking, and sexual offenses).

Accordingly, in interpreting a Marsy’s Law’s definition of “victims” that

mirrors Florida’s, the Attorney General of North Dakota has determined that

names are not protected at all. See N.D. Att’y Gen., “Guidance On Marsy’s Law,”

at 4 (Aug. 1, 2017), available at

https://attorneygeneral.nd.gov/sites/ag/files/documents/MarsysLaw-Guideance.pdf

(stating that names cannot be withheld under North Dakota’s open records law

unless the victim falls into an enumerated category of crime, such as human

trafficking or domestic violence). Similarly, the Attorney General of South Dakota

35
has also concluded that agencies can release the names of victims without violating

Marsy’s Law. See S.D. Att’y Gen. Op. No. 16-02, 2016 WL 7209783 (Dec. 5,

2016). Thus, when the name of an individual is deemed important enough to be

kept secret, exemptions address those particular concerns. See, e.g., Fla. Stat. §

119.071(2)(n) (protecting names of victims of sexual harassment).

With respect to police officers’ names, no statutory exemptions exist to

prohibit their release because they are vital for transparency. The safety and

protection of law enforcement is certainly a valid and important concern, which is

why public records exemptions already exist to prohibit the release of former and

active law enforcement officer information, including their home addresses,

telephone numbers, dates of birth, and phone numbers, specifically to “ensure the

safety of these officers and their families.” See Fla. Stat. §§ 119.071(4)(d) and

914.15; Fla. Att’y Gen. Op. 2010-37. Additionally, undercover officers are

protected through the exemption of “[a]ny information revealing undercover

personnel.” See Fla. Stat. § 119.071(4)(c). Notably, given these exemptions already

afforded to protect law enforcement officers, the Appellants have not shown that

the disclosure of their names alone could actually be used to locate or harass them.

This makes sense, as police officers display their names on their uniforms,

wear unique badge numbers, and their images are frequently viewable on body

camera and dash cam footage. Critically, the shootings at issue here occurred on

36
public streets. (App. Br. 5, 10). The Doe Officers responded to the scene in plain

view of passersby and fired their weapons in plain sight. As discussed in Section II

supra, the officers lacked an expectation of privacy in these public, on-duty

shootings, and anyone could have lawfully filmed them. It stands to reason then

that their identities are not private, and witnesses could identify them by face.

Indeed, Appellants acknowledge that their identities are not secret. (App. Br. 16).

Simply put, the Appellants do not want to be identified as the officers

responsible for the shootings at issue here. Their argument is clear: “Releasing the

Appellant[s’] names would quickly identify them and their families.” App. Br. 29

(emphasis added). Their concern with revealing their names stems, not from fear of

harassment or intimidation from their assumed aggressors, but rather from the

community they are sworn to serve. They said so explicitly in their Petition below:

“Bystanders who arrived after the shooting immediately began to threaten the

officers.” (R. 89, ¶ 101; App. Br. 29) (emphasis added). Importantly, given the

overarching purpose of Marsy’s Law, it clearly was not designed to protect a

victim from “possible retribution” from “unknown persons in the community,” but

rather from that of the alleged victimizer.15 See R. 353.

15
Section 16(b)(3) makes this purpose clear by granting victims the right “to be
reasonably protected from the accused and any person acting on behalf of the
accused.” (emphasis added).

37
 Names are critical for the public’s ability to evaluate, not only the officer’s

history of the use of force, if any, but also the agency’s treatment and discipline of

its officers. See Brayshaw, 709 F. Supp. 2d at 1250. Despite Appellants’ assertions

(App. Br. 30-31), the Circuit Court appropriately relied on Tribune Co. v.

Cannella, 438 So. 2d 516, 521 (Fla. 2d DCA 1983), which explained that access to

personnel files is essential for the public’s meaningful review of the “conduct of its

police officers in order to determine whether these officers of government are

appropriately discharging their assigned duties and responsibilities.” 16 Although

the withholding of the officers’ names in Cannella was not at issue, it is clear that

knowing those names facilitated access to the officers’ personnel files. Without a

name, the public is unable to examine the officer’s credentials and employment

history to determine whether that officer has a sterling record or perhaps a pattern

of using force, the type of force used, the demographics of the civilians against

whom force is used, and any discipline imposed.

Again, the News Media make no prejudgments of the Doe Officers here.

They may in fact be exemplary officers for which the community should be proud.

Nevertheless, the public has a right to know and evaluate the incidents and officers

16
The Florida Supreme Court quashed the district court’s opinion to the extent it
permitted an agency an automatic delay in producing records. Tribune Co. v.
Cannella, 458 So. 2d 1075, 1078-79 (Fla. 1984). The Supreme Court held that
agencies cannot delay producing records in order to permit a government employee
to raise a constitutional right of privacy to prevent the release. See id.

38
involved for themselves. While Marsy’s Law may have an honorable purpose, it

should not be warped into a vehicle to secrete the identities of law enforcement

officers who use lethal force under the color of law.

CONCLUSION
For the foregoing reasons, the Circuit Court’s order should be affirmed in all

respects.

THOMAS & LOCICERO PL

/s/ Carol Jean LoCicero

Carol Jean LoCicero
Florida Bar No. 603030
Mark R. Caramanica
Florida Bar No. 110581
601 South Boulevard
Tampa, FL 33606
Telephone: (813) 984-3060
Facsimile: (813) 984-3070
Primary e-mail:
clocicero@tlolawfirm.com
Secondary e-mail:
tgilley@tlolawfirm.com
Primary e-mail:
mcaramanica@tlolawfirm.com
Secondary e-mail:
dlake@tlolawfirm.com

- and -

Daniela B. Abratt
Florida Bar No. 118053
915 Middle River Drive, Suite 309
Fort Lauderdale, FL 33304
Telephone: (954) 703-3418
Facsimile: (954) 400-5415

39
 Primary e-mail:
dabratt@tlolawfirm.com
Secondary e-mail:
bbrennan@tlolawfirm.com

Attorneys for News Media Intervenors

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 20th day of September, 2020, I caused a

true and correct copy of the foregoing to be served electronically upon counsel of

record by e-mail via the Florida Courts E-Filing Portal to:

Luke Newman Philip J. Padovano

Luke Newman, P.A. Joseph T. Eagleton
908 Thomasville Road Brannock Humphries & Berman
Tallahassee, FL 32303 1111 W. Cass Street, Suite 200
luke@lukenewmanlaw.com Tampa, FL 33606
ppadovano@bhappeals.com
Stephen G. Webster jeagleton@bhappeals.com
Louis J. Baptiste eservice@bhappeals.com
1615 Village Square Blvd., Suite 5
Tallahassee, FL 32309 Cassandra K. Jackson, City Attorney
sw@swebsterlaw.net Hannah D. Monroe, Asst. City Attorney
lb@swebsterlaw.net City Attorney's Office
300 South Adams Street, Box A-5
Stephanie Dobson Webster Tallahassee, FL 32301
Florida Police Benevolent Cassandra.Jackson@talgov.com
Association, Inc. Hannah.Monroe@talgov.com
300 E. Brevard Street
Tallahassee, Florida 32301 Counsel for Appellee,
Stephanie@flpba.org City of Tallahassee

Counsel for Appellants Florida Police

Benevolent Association, Inc., John Doe
1 and John Doe 2

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 CERTIFICATE OF COMPLIANCE WITH FONT SIZE

The undersigned hereby certifies that the font of this brief is Times New

Roman 14-point pursuant to Fla. R. of App. P. 9.210(a)(2).

/s/ Carol Jean LoCicero

Carol Jean LoCicero
Florida Bar No. 603030

41