Police use victims’ rights law to hide from scrutiny

Caitlin Vogus Headshot

Deputy Director of Advocacy

Police in several states have withheld the names of officers involved in shootings or other altercations while on duty, citing Marsy’s Laws.

Image created by Harris Lapiroff using Midjourney, CC BY-NC

What if the names of the police officers who participated in the murder of George Floyd had never been made public, because they claimed they were the victims of an attempt by Floyd to resist his arrest? It may sound far-fetched, but if Minnesota had a crime victims’ rights law known as Marsy’s Law, it could have happened.

The original Marsy’s Law, passed in California in 2008, prohibited the release of victims’ confidential information to a defendant. But now, while the exact language of Marsy’s Laws differs from state to state, some newer versions prohibit the release of victims’ information to anyone.

That change opened the door to police officers using the law to hide their identities when they’re involved in on-duty incidents. Law enforcement officers around the country are arguing that Marsy’s Laws shield the names of officers who wound or even kill people while on duty. Police departments have relied on the laws to withhold officer names from press releases and even refuse to supply them in response to journalists’ public records requests.

The latest examples of this troubling trend are from Wisconsin and Ohio. In Wisconsin, the identity of a police officer who shot a suicidal man at the end of June has been withheld, even from court records, thanks to its Marsy’s Law. In Ohio, the Columbus police department is withholding the names of the officers involved in four separate fatal shootings in July and August, citing its Marsy’s Law. In one instance, the Columbus police are refusing to release the names of all eight officers involved in a shootout on a highway that left one person dead.

Incredibly, officers in states with Marsy’s Laws have claimed to be victims even when the other person involved in an incident did nothing to harm them. For example, police in Florida cited the provision in refusing to release the name of the officer who chased and tried to pull over a 13-year-old boy riding a dirt bike. The boy crashed and died. It’s nonsense for the pursuing officer to claim he is the “victim” in that scenario. But this type of claim is common. According to one investigation, “Officers sustained no injuries in at least half of the incidents for which they claimed victims’ rights.”

Protecting the rights of actual crime victims is important. But officers involved in altercations while on the job shouldn’t be considered “victims'' entitled to keep their information private. Police are using Marsy’s Laws to hide from public accountability and scrutiny. The public has a right to know what individual police officers are doing in their official capacity, on behalf of the public. Withholding officers’ names makes it harder for journalists to report about police actions, and for the public to hold both individual officers and law enforcement institutions responsible for misconduct.

Without officer names, the press and the public couldn’t identify officers who repeatedly violate the law or police rules. For example, if an officer who shoots a suspect can demand that their name be withheld from news reports, the public will be unable to look at past reporting to determine if a particular officer has a pattern of shootings. And journalists’ investigations into bad cops will also be stymied if police names can be scrubbed from public records.

A 2020 investigation by USA Today and the Invisible Institute, for instance, used misconduct reports to identify nearly 2,500 officers who have been investigated on 10 or more misconduct charges and 20 officers who “faced 100 or more allegations yet kept their badge for years.” That investigation would have been impossible if these officers could withhold their names under Marsy’s Laws.

Even states that don’t have Marsy’s Laws are negatively impacted by them. By potentially shielding the names of problematic officers from disclosure, the laws make it easier for them to move to states and continue to work in law enforcement. Journalists have relied on being able to report the names of officers found guilty of misconduct in one state when they simply move on to work in another.

It’s been years since police first started claiming to be victims entitled to keep their names secret under Marsy’s Laws, and legal battles over this issue are playing out in at least one state. There’s ample notice of the law’s anti-transparency impact. Yet campaigns to pass Marsy’s Laws in other states continue without acknowledging this fundamental flaw.

Lawmakers in states without Marsy’s Laws should reject any version that allows police officers to keep their names secret, and states with this law on the books should amend it to prevent law enforcement misuse. When police officers carry out their official duties, they’re acting on behalf of the public. Laws that wrongly hide their names, including from journalists, do a disservice to the public — and ultimately to real victims.

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