A Law Intended to Protect Crime Victims Is Being Used to Shield the Identities of Police Officers

A highway patrol officer in South Dakota is using a law intended to protect the identity of crime victims to keep his or her name from being publically released after shooting a suspect.

So-called “Marsy’s Laws” are victim’s rights regulations that, among other things, allow a crime victim to prohibit the release of information or records that could used to “locate or harass the victim or the victim’s family.” The first Marsy’s Law was passed in California and enshrined in its state constitution. It has since spread to Illinois, Ohio, Montana, North Dakota, and South Dakota.

What on earth does a victim’s rights law have to do with a police officer demanding to conceal his identity from the public? According to the Rapid City Journal, the officer in question shot 21-year-old Kuong Gatlauk following a confrontation during a traffic stop. According to the police report, Gatlauk made statements intending some sort of self-harm and fled from a police vehicle. In a confrontation, he apparently threw a beer can at the trooper and then tackled the trooper and tried to steal the trooper’s gun, according to this report. The trooper was able to keep his gun and shot the suspect twice.

Because Gatlauk was subsequent charged with assaulting the trooper, the trooper is claiming the right under Marsy’s Law to have his or her name kept confidential, even though this action happened in the course of public police work and much of the records involved are public records. The state’s attorney general has agreed. South Dakota’s Marsy’s Law does not have any sort of exceptions for law enforcement.

As the Rapid City Journal notes, this is not the first time police officers have used the law to try to shield their names from disclosure. Several officers in North Dakota also used their version of Marsy’s Law to conceal their names during the investigation of a police shooting.

The American Civil Liberties Union has been critical of Marsy’s Laws, partly because of their vagueness and partly because they can jeopardize defendants’ due process rights. In May, Jeanne Hruska, the policy director of the ACLU’s New Hampshire chapter, warned:

Would it prevent the release of names or crime reports? Would it reduce the amount of information that press outlets are allowed to provide to the public regarding crimes? Could it give a victim and their attorney control over the limits of a victim’s testimony at trial?

Too much of the Marsy’s Law narrative is abstract, obscuring what the implications would be for our legal system. The multi-million dollar campaign that comes with Marsy’s Law focuses on the intent of the law. But, well-meaning intent does not cure bad language. The concern over ambiguous language and unintended consequences are particularly acute because, unlike a statute, if problems arise with a constitutional experiment, legislators’ hands are effectively tied. To change even a few words requires another constitutional amendment.

In South Dakota, they had to do exactly that, to clarify the law to make it clear that police could disclose important information to get help from the public and to limit who was actually covered by the definition of a “crime victim.”

In California, media outlets had to take a lawsuit all the way up to the state Supreme Court just to establish that law enforcement agencies couldn’t simply conceal the names of officers who had been involved in shootings. And they recently passed a law making public the records of police officers in situtations involving deadly force and certain crimes.

Voters in six states—Florida, Kentucky, Georgia, Nevada, North Carolina, and Oklahoma—will be considering Marsy’s Law amendments to their states’ constitutions in November. They should keep these (likely) unintended outcomes in mind.