Ohio Supreme Court rules cops can be considered victims under Marsy’s Law
The decision allows law enforcement officers to shield their identity if they were subject of a criminal offense
By Nick Evans
The Ohio Morning Journal
COLUMBUS — The Ohio Supreme Court has ruled police officers can be considered victims, and thus not subject to public disclosure, under Ohio’s Marsy’s Law privacy protections.
The case stems from a July 2023 incident in which three men robbed several car dealerships, banks, and even a GameStop before getting tracked down police.
A car chase on I-70 ended in a shootout. Two suspects fled on foot. But a third shot one officer five times and was approaching a second officer when he was shot and killed.
The fleeing suspects were caught, and in January of this year sentenced to 25 and 13 years respectively.
But the day of the shooting, reporters at the Columbus Dispatch filed a public records request for bodycam and dashcam footage.
Columbus Police eventually released redacted footage that shielded the identities of the officers claiming they were victims of a crime.
The Dispatch sued, claiming police officers acting in their official capacity can’t be considered victims because they’re representing the state.
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Ohio Supreme Court Justice Patrick DeWine, writing for the court’s majority, disagreed — and he didn’t seem to think it was a hard call.
“Applying the plain text of the amendment, we have no difficulty concluding that an ordinary understanding of Marsy’s Law’s definition of victim encompasses the officers in this case,” he wrote.
To DeWine, it boils down to a simple equation: A victim under Marsy’s Law is a person against whom a criminal act is committed, and a police officer is definitely a person.
The court is not being asked “to determine whether an edge case fits within the scope of underdeterminative constitutional text,” DeWine continued. “This is a case in which the text is clear and determinative with respect to police officers.”
The police union was thrilled with the decision.
“This ruling is a bright light for common sense,” Fraternal Order of Police of Ohio President Jay McDonald said in a statement.
“Of course, Marsy’s Law protects police. When an officer is attacked, they are a victim like anyone else, and they deserve the same privacy and protections.”
But to some other justices on the bench, the case isn’t quite that simple — even if they agree police officers can meet the definition of victims.
Background
Marsy’s Law was first adopted as part of the California State Constitution in 2008.
The amendment provides several protections for victims of crime to ensure they’re heard in court, aware of developments in the case, and afforded privacy as proceedings play out.
Since its adoption in California, 13 states have adopted a version of the amendment. In Pennsylvania and Montana state courts later overturned the provisions.
Courts in Kentucky threw out that state’s version of Marsy’s Law, too. But voters approved a second version in 2020. The law is currently in effect in 12 states.
Since at least 2020, journalists have been raising alarms about law enforcement agencies use Marsy’s Law protections to shield the identity of officers involved in use of force incidents.
ProPublica noted it was particularly common in Florida, where voters approved Marsy’s Law in 2018.
But even some prominent law enforcement officials like Pinellas County Sheriff Bob Gualtieri pushed back on that use of the law.
“A police officer who shoots and kills another is not a ‘victim’ of that shooting and cannot invoke Marsy’s Law to shroud his shooting in secrecy,” he wrote in an amicus brief.
In 2023, the Florida Supreme Court ruled Marsy’s Law doesn’t afford any victim, “police officer or otherwise — the categorical right to withhold his or her name from disclosure.”
The court determined that would be incompatible with the right to confront adverse witnesses in court and the state’s sunshine laws.
Ohio’s ruling, and its dissents
Among its arguments, The Columbus Dispatch said police officers, acting in their official capacity, need be treated differently under Marsy’s law because they’re treated differently under many other statutes.
“A person may commit many criminal offenses against a police officer that would not be criminal offenses if committed against a private individual,” the newspaper said.
That’s because offenses like false statements, resisting arrest, and failure to comply, are treated as offenses against the state, rather than the individual officer.
Just look at the two men charged with armed robbery in the underlying case.
The plaintiff wasn’t officer John Doe 1 or John Doe 2, as they’re identified in the Ohio Supreme Court case, and it wasn’t the businesses they robbed — it was the United States.
Granting police officers the right to shield their identity if they’re subject to any criminal offense would be a sweeping change.
It’s unlikely voters who approved Marsy’s Law, the newspaper said, “understood that they were granting state actors any rights that might result in their being deprived of their existing right to obtain information about police officers through public records requests.”
Justice DeWine brushed those arguments off.
“It may well be true that when a person has made a false report to a police officer or committed a similar crime, the police officer is not a victim of that crime under the constitutional definition,” he wrote. “But that is not the case in front of us.”
In a pair of dissents, Justices Patrick Fischer and Jennifer Brunner complicated DeWine’s straightforward interpretation.
Both agreed that officers can be victims under Marsy’s Law, but they still found fault with the police department’s stance.
Fischer said the facts of the case demonstrate Doe 1 and Doe 2 were in fact victims and the department was justified in redacting their identifying information under Marsy’s Law. But he stressed they weren’t the only officers on the scene.
“The evidence provided by CPD plainly shows that there are other records — specifically, body-worn-camera and dashboard-camera footage from other officers at the scene who were involved in the shooting — that are responsive to the Dispatch’s request and that were withheld by CPD under the victims’ rights exception,” he wrote.
Fischer noted the department conceded at oral argument that those other officers were not victims.
He contends the court should direct the department to release the remaining footage to The Dispatch.
Justice Brunner argued Ohioans have an understood constitutional right to access government records like body cam footage.
Instead of arguing a public official can never be a victim, she focused on the expectation of privacy.
Because police operate in public, with their name and badge number readily available, Marsy’s Law privacy protections shouldn’t extend to their conduct.
“Once the officers are on duty in public, they do not have an expectation of privacy in their names or identities,” she wrote.
Reactions
While the police union celebrated, Columbus City Attorney Zach Klein, who serves as legal advisor to the police department, sounded a more measured tone.
Although he respects the public’s desire for transparency, especially in use of force cases, he said city officials were simply trying to follow the law as written.
“Today’s ruling by the Ohio Supreme Court affirms that interpretation of Marsy’s Law,” he said. “If the Ohio legislature chooses to amend or clarify these important public record provisions in the future, we will of course follow those laws at that time.”
And the ACLU of Ohio, which opposed Marsy’s Law when it went before voters, is looking to the future as well.
In a statement Senior Policy Counsel Patrick Higgins wrote, “the ACLU of Ohio believes a transparent government can be an accountable government. In the wake of this decision, we stand ready and look forward to working with the state legislature to ensure that violent encounters between state actors and civilians are scrutinized under the daylight they deserve.”
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