吃瓜大本营

After a high-speed pursuit in South Dakota in September, a highway patrol trooper a man after he 鈥渋gnored verbal commands鈥� and 鈥渢ackled鈥� the trooper. One month later, the Department of Criminal Investigation of any wrongdoing. Then in November, a South Dakota sheriff鈥檚 deputy a suspect who had fled after reportedly firing at deputies during a pursuit.

The people of South Dakota, however, do not know the names of these law enforcement officers. And the reason for this lack of transparency is Marsy鈥檚 Law, an obscure set of victims鈥� rights, which South Dakota voters into the state constitution in 2016. In both instances, the officers invoked their right to privacy under Marsy鈥檚 Law as crime victims.

Yes, you read that right. The officers, public servants who used their weapons in the line of duty, both claim they are crime victims and therefore assert that the government is legally prohibited from releasing their names publicly.

While Marsy鈥檚 Law looks slightly different in each of the 11 states where it has been adopted, one consistency is its of victim and the victim鈥檚 right to privacy.

According to Marsy鈥檚 Law in South Dakota, a victim is 鈥渁 person who suffers direct or threatened physical, psychological, or financial harm as a result of the commission or attempted commission of a crime or delinquent act.鈥� This definition captures everything from someone who witnesses a drug sale to a corporation that experiences minor check fraud or shoplifting.

Also under South Dakota鈥檚 Mary鈥檚 Law, everyone who fits under that expansive definition of victim has the 鈥渞ight to privacy.鈥� This, according to the law, 鈥渋ncludes the right to refuse an interview, deposition or other discovery request, and to set reasonable conditions on the conduct of any such interaction to which the victim consents.鈥�

These rights, apparently, now extend to police officers, with grave implications for government transparency, public scrutiny, and freedom of the press in the state.

If police are considered victims under Marsy鈥檚 Law every time they are involved in a police shooting, a hostile arrest, or similar situation, officers would have the right to withhold their name from the public and avoid answering questions from the press or, even more disconcerting, from defense counsel. Given the sweeping right to refuse an interview, it鈥檚 worth considering whether Marsy鈥檚 Law could be invoked by an officer to refuse an interview by their own internal affairs investigators.

Our objections to this interpretation of victims鈥� rights go beyond the ACLU鈥檚 previously stated concerns about granting victims a constitutional right to refuse discovery requests. Enabling police to withhold information from defendants and defense counsels could strike an even greater blow to a defendant鈥檚 constitutional right to see evidence that could prove the defendant鈥檚 innocence.

Moreover, it is exactly in situations of police violence that the public interest in transparency is the most heightened. In the context of civilian victims of violent crime, particularly victims of domestic or sexual violence, withholding their name from the media may be appropriate.

Police officers, however, are public servants. When they are involved in arrests, shootings, or other law enforcement activities, they are doing so on behalf of the taxpayer and using taxpayer money. There are different expectations of transparency and public access to information.

South Dakota already to prevent the unintended withholding of information related to unsolved crimes. And yet those tweaks didn鈥檛 address the law鈥檚 continued infringement on public accountability and transparency.

After the November mid-term elections, Marsy鈥檚 Law will be in effect in 11 states, and the people behind it, including California billionaire Henry Nicholas, are expected to pursue its adoption in other states. The spread of Marsy鈥檚 Law to new states, coupled with Nicholas鈥� 50-state strategy and goal of adding Marsy鈥檚 Law to the U.S. Constitution, makes the law鈥檚 unintended consequences a concern for all.

States can strengthen victims鈥� rights without adopting the overly broad and problematic language in Marsy鈥檚 Law and without simultaneously shielding law enforcement from public scrutiny. Just as we said that victims鈥� rights should not come at the expense of defendants鈥� rights, neither should victims鈥� rights come at the expense of police accountability.

As public servants entrusted with the use of deadly force, police should be held to a higher standard of accountability and transparency. The use of Marsy鈥檚 Law to instead lower that standard is one more reason why states should be leery of adopting this law and its unintended consequences.

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