Marsy’s Law is meant to protect crime victims. So why is it being used to shield the name of a Boynton officer who chased a 13-year-old boy who died?

BOYNTON BEACH — One month after a 13-year-old boy crashed his dirt bike and died while a police officer chased him, the public is left with a mystery: Who was the Boynton Beach Police officer?

Stanley Dale Davis III’s family and friends have filled the city commission chamber at meetings since his death on Dec. 26 to speak about him publicly, his name on signs and shirts for all to see.

Friends and family of Davis say they want to make sure no one forgets their loved one — or the officer who was following him. But a state law and its applications complicate those efforts.

Boynton Beach Police have not released the officer’s name, saying the officer invoked his right to protect his name from the public under Marsy’s Law, a constitutional amendment approved by voters in 2018 that allows crime victims to shield their name and personal information from the public.

First Amendment advocates and attorneys say officers using Marsy’s Law in Davis’ death and similar situations is an unintended consequence that voters did not have in mind when they approved the amendment, that it makes it difficult to know whether a specific officer has a history of issues and that it can fuel an ongoing mistrust between the public and police officers.

The Boynton police department says Marsy’s Law applies to the officer because he and his family were receiving threats and because of the crash.

“The department has taken the time to consult with the City Attorney’s Office, and based on their advice, Marsy’s Law does apply to this officer in both the threats case and Sunday’s crash,” says a police department statement released Dec. 29, three days after the fatal crash. “Therefore, in order to comply with the law, the department will not be releasing the name of the officer involved in the crash.”

“According to Marsy’s Law, every victim is entitled to the right to be free from intimidation, harassment and abuse,” the statement continues. “In addition, the law gives every victim 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, or which could disclose confidential or privileged information of the victim.”

Stephanie Slater, a spokesperson for the police department, said in an email last week that the officer and his family have been threatened in text messages and on social media, which the department is investigating.

“As a result of the ongoing investigation, we are unable to elaborate further,” Slater wrote.

The Boynton Beach Police Department has denied public record requests from the South Florida Sun Sentinel for the administrative leave paperwork for the officer the family and their attorneys believe was involved as well as the department’s incident report of the fatal crash, body-worn camera footage, any footage from security cameras near where the crash happened, dispatch audio related to the crash and any 911 calls, citing the ongoing investigation.

The question of law enforcement officers who were acting in their official capacity invoking Marsy’s Law to shield their identities is one that has repeatedly surfaced since the amendment passed in 2018, and some experts have pointed out the ambiguities of the law that allow it to happen and say that it leaves room for what some consider a misuse of the law.

Boynton City Attorney James Cherof declined to answer questions about the specifics of how Marsy’s Law applies to the officer in both the threats and the crash.

“There is nothing I can add to the department’s statement,” Cherof said in an email to the Sun Sentinel last week.

Frank LoMonte, the executive director of the University of Florida College of Journalism and Communications’ Brechner Center for Freedom of Information, said Marsy’s Law is about protecting the privacy of crime victims. But for officers who are on duty, acting on behalf of their agencies, this law “should never apply.”

“If the officer is getting threats because a child died during a pursuit, the officer is not getting threats by virtue of being a crime victim. The officer is getting threats by virtue of being a police officer,” LoMonte said. “That’s not what Marsy’s Law was for. It’s not police officer privacy. It’s crime victim privacy. That’s not remotely what voters of Florida had in mind when they voted to make information about vulnerable crime victims confidential.”

Receiving threats from suspects or the public, Philip Sweeting, a retired Boca Raton deputy police chief, said, is part of the job.

“Does that mean you’re never going to release an officer’s name that makes an arrest? I don’t think so. In the past, I’ve arrested people and they’ve threatened me. It probably happens at least 10 percent of the arrests,” Sweeting said.

At least half of Florida’s 30 largest police agencies have hidden the names of on-duty officers with Marsy’s Law, a ProPublica and USA Today investigation found last year, and at least seven agencies withheld officers’ names who killed civilians, including the Broward Sheriff’s Office.

The ProPublica and USA Today story found that Marsy’s Law had been used in cases where an officer was hit on the shoulder by the wire of a suspect’s pulse monitor while restrained in a hospital bed and a deputy who shot at a drunk driver because the suspect fled in the deputy’s direction.

In South Florida, officers have invoked Marsy’s Law in a 2020 case involving two Palm Beach County Sheriff’s Office deputies who shot a 20-year-old man who was armed with a knife, saying the officers were victims of assault from the man they fatally shot, the Palm Beach Post reported.

LoMonte said there’s a risk of the amendment losing its credibility if the public believes it is being misused.

“I don’t question at all police have dangerous jobs and they are worried about threats. That’s a completely realistic and legitimate fear and nobody should minimize that,” LoMonte said. “But when you take on a sensitive public service position with a lot of power, you give up some of your privacy.

“Ultimately if Marsy’s Law gets over-applied to anything and everything involving policing, then it’s going to get repealed,” he said. “The public is not going to stand for it.”

Davis’ family has hired Ben Crump, the high-profile attorney who has represented the families of George Floyd, Ahmaud Arbery, Breonna Taylor and litigated other civil-rights-related cases. Crump has not publicly identified the officer but has said that the officer has a history of violating vehicular pursuit policies that led to the death of a man in 2012 and a 5-year-old boy in 2016.

That makes it critical for the public to know the officer’s name, LoMonte said.

“We need to know if this is a tragic one-off occurrence or if there might be some pattern of behavior. If there is an allegation that this isn’t the first time the officer has made a questionable judgment on pursuits, then that is all the more reason why we should know the officer’s name,” LoMonte said.

The highest court in the state will decide on the issue of officers using Marsy’s Law later this year.

Pam Marsh, executive director of the First Amendment Foundation, said she has seen officers invoke Marsy’s Law after having a “violent encounter” with a citizen or when an officer believes a suspect was committing an assault on the officer. For example, the Florida Supreme Court agreed in December to take jurisdiction over a case involving two Tallahassee officers whose identities were shielded under Marsy’s Law because they said they were victims in separate deadly use-of-force incidents.

“It will be a very important decision and I am so grateful the Supreme Court decided to take jurisdiction over the case … This will be one of the most important decisions for Florida this year,” Marsh said.

But Marsh said the Boynton incident is the first case she has seen where Marsy’s Law was invoked to protect an officer from threats from the public rather than a suspect and without there being an encounter with the citizen.

“I have not seen Marsy’s Law used to hide the identity of a law enforcement officer hours, days after the incident has occurred,” Marsh said.

The definition of a victim in Marsy’s Law, Marsh pointed out, is defined as “a person who suffers direct or threatened physical, psychological or financial harm as a result of the commission or attempted commission of a crime.”

“What we need in our communities is trust. We’ve got to build trust. We’ve got to build accountability, not run away from it,” Marsh said. “And that’s only going to happen when there’s transparency and responsibility, and we are going backwards from that right now.”

In the Tallahassee case, Leon County Circuit Court, Judge Charles Dodson wrote in July 2020 that Marsy’s Law was not meant to apply to officers acting in their official capacity.

In the case of the two Tallahassee officers, “the would-be accuseds are dead, killed by the officers in the line of duty,” Dodson wrote. “The officers do not seek protection from the would-be accuseds, instead they apparently seek protection from possible retribution for their on-duty actions from unknown persons in the community. This type of protection is outside the scope of Marsy’s Law and is inconsistent with the express purpose and language of the amendment.”

But an appeals court last year overturned that ruling and decided that officers could be protected under the law.

“This does not mean that the public cannot hold law enforcement officers accountable for any misconduct. Maintaining confidential information about a law enforcement officer who is a crime victim would not halt an internal affairs investigation nor impede any grand jury proceedings. Nor would it prevent a state attorney from reviewing the facts and considering whether the officer was a victim,” Chief Judge Lori Rowe wrote.

The officers’ names in the Tallahassee case are still not known. Neither are the deputies in the fatal shooting of the Palm Beach County man.

Ed Birk, a news media attorney who represents news organizations, said the decision the Supreme Court makes, possibly by the end of the year, will be critical in clearing up the ambiguities of Marsy’s Law.

“We’re just hoping the Supreme Court gives us guidance. Everybody needs an answer. The police, First Amendment advocates, the public, cities and counties and sheriffs,” Birk said. “Everybody needs an answer here. We need clarification, and we sure hope it’s in favor of transparency.”

The First Amendment Foundation, the Brechner Center, Birk and attorneys for the South Florida Sun Sentinel have intervened in the case the Supreme Court has taken up this year.