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In South Dakota, Police Officers Involved in Shootings Are Claiming They Have a Right to Privacy as Crime Victims

Police officer's back and holster
Police officer's back and holster
Jeanne Hruska,
Political Director,
ACLU of New Hampshire
Janna Farley,
Communications Director,
ACLU of South Dakota
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December 27, 2018

After a high-speed pursuit in South Dakota in September, a highway patrol trooper shot and wounded a man after he “ignored verbal commands” and “tackled” the trooper. One month later, the Department of Criminal Investigation cleared the trooper of any wrongdoing. Then in November, a South Dakota sheriff’s deputy shot and killed 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’s Law, an obscure set of victims’ rights, which South Dakota voters added into the state constitution in 2016. In both instances, the officers invoked their right to privacy under Marsy’s 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’s Law looks slightly different in each of the 11 states where it has been adopted, one consistency is its overly broad definition of victim and the victim’s right to privacy.

According to Marsy’s Law in South Dakota, a victim is “a 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.” 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’s Mary’s Law, everyone who fits under that expansive definition of victim has the “right to privacy.” This, according to the law, “includes 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.”

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’s 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’s worth considering whether Marsy’s Law could be invoked by an officer to refuse an interview by their own internal affairs investigators.

Our objections to this interpretation of victims’ rights go beyond the ACLU’s 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’s constitutional right to see evidence that could prove the defendant’s 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 amended Marsy’s Law once to prevent the unintended withholding of information related to unsolved crimes. And yet those tweaks didn’t address the law’s continued infringement on public accountability and transparency.

After the November mid-term elections, Marsy’s 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’s Law to new states, coupled with Nicholas’ 50-state strategy and goal of adding Marsy’s Law to the U.S. Constitution, makes the law’s unintended consequences a concern for all.

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