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The latest example of a national trend is that nearly a dozen states have passed identical amendments, which allow law enforcement agencies to withhold the identities of police officers and witnesses in order to protect civil liberties, say advocates who argue that accountability erodes in police practices.

Police officers implicated in lethal shootings in Columbus, Ohio have had their identities kept confidential and their faces even concealed in edited body camera recordings, following the invocation of Marsy’s Law to protect their privacy, as stated by city attorneys.

The highest court in Florida is considering a legal challenge brought by the police union to prevent the city from releasing the names of officers who have shot and killed suspects, arguing that privacy should be afforded to the victims.

The urging of a billionaire tech mogul, who funded almost the entire lobbying effort, reported that similar episodes in North and South Dakota, pointing to Civil libertarians, were approved by Wisconsin voters before the Marsy’s Law.

DAs differ on the disclosure of crucial details

In April, a man armed with a gun allegedly opened fire on officers who surrounded him in his detached home’s garage in Oshkosh. This incident in Stevens Point played out quite differently than the nonfatal shooting of police in a similar incident.

Initially, the names of the police officers involved in charging Nicholas E. Meyer, the 41-year-old who faces attempted murder charges against the wounded, were withheld in the charging documents.

In a statement released by Portage County District Attorney Cass Cousins, it was announced that he had approved the use of lethal force and also disclosed the identities of the two officers involved, namely Alexander Beach and Zachary Gartmann.

Cousins informed Wisconsin Watch, “There is no explicit provision in the law that mandates the confidentiality of these names.” “I believe there will always exist a conflict between the openness of information and the rights of the victims.”

Occasionally, the identities of law enforcement officers are disclosed during the ongoing investigation.

On August 1, a 34-year-old fugitive named Russ Lt. Blahnik was shot twice in the leg after leading the police on a 24-hour foot chase through an apartment complex in Grand Chute, Wisconsin. The police later discovered that the weapon he dropped, which he had ignored commands to drop, turned out to be a replica pistol. The Outagamie County Sheriff’s Office stated that he is expected to survive.

Ambiguity in the implementation of Marsy’s Law

The difference in disclosure standards can be traced to uncertainty among prosecutors and police on how to fairly apply Marsy’s Law, a constitutional amendment approved by nearly 75% of Wisconsin voters that strengthens privacy protections for criminal defendants and broadens the definition of a crime victim, say critics.

Smith, the Chief of Police in Oshkosh, stated that law enforcement officials are keeping up with a national trend to provide more privacy to victims, including their own officers acting in the line of duty.

“The voters have expressed their desire for this,” Smith informed Wisconsin Watch. “And this is a part of that.”

The consequences of the legislation were not thoroughly elucidated and civil rights groups contended that the question regarding the constitutional amendment on the ballot was oversimplified.

Margo Kirchner, executive director of the Wisconsin Justice Initiative, a public interest lawyer group that unsuccessfully contested the constitutional amendment in court, expressed, “The impact on defendants’ rights and the public’s right to be informed about police shootings excludes a significant amount of information regarding this matter.” “Who, with sound judgment, would oppose the enhancement of victims’ rights?”

The endorsement of Democratic Attorney General Josh Kaul, including bipartisan support from the Republican-controlled Legislature, made it possible for Wisconsin’s constitutional amendment to change the standards for transparency in shooting police, without mentioning the question that went to voters in a 64-word sentence.

An anticipated issue

Critics in the legal community say that the rights of crime victims are often overlooked in the political realm, but the complications created by Marsy’s Law make this issue even more difficult to address.

Ed Fallone, a law professor at Marquette University Law School who ran without success for Wisconsin Supreme Court in 2013 and 2020, expressed, “Many individuals were aware that this issue was on the horizon.” “Regrettably, if you held a position as an elected official or were a candidate for office, such as myself, it was politically advantageous to remain silent.”

In light of privacy concerns arising from Marsy’s Law, Oshkosh’s police chief acknowledged that the names of the officers were withheld in deference to the decision of the Winnebago County district attorney. However, he conceded that this approach could potentially lead to frustration among certain individuals from the community.

Smith stated, “This is a challenging thing.” If this were to be addressed comprehensively, it would involve examining all aspects. Moreover, if I am not aware of the Marsy’s Law enshrined within our Constitution, I cannot provide any insight on the matter.

According to Eric Sparr, a longstanding prosecutor who began his career in the office in 2005, court documents that reveal the identities of law enforcement officials, individuals accused of crimes, and even individuals who provide testimony have always been customary. However, there are some exceptions to this rule, such as cases involving minors or victims of specific sensitive crimes such as sexual assault or domestic abuse.

Sparr informed Wisconsin Watch that as soon as the Marsy Law was implemented, we promptly adjusted our strategy and eliminated all references to victims’ names from public records.

Utilizing deadly force involving law enforcement officers is possible. Sparr acknowledges the concerns regarding the lack of transparency, but determining the balance is challenging. Local prosecutors are tasked with interpreting the rights to privacy of the victims, which he describes as “frustratingly vague” and subject to interpretation.

Sparr stated, “Regarding the execution, there is not much direction.” “The Department of Justice has attempted to explain and distribute their explanations so that there can be as much consistency as feasible across the nation, but it is inherently challenging when the wording and the modification were quite broad,” he further commented.

According to the laws concerning public records, the Wisconsin Watch was directed by the state Department of Justice to a 2021 advisory provided by its Office of Open Government. The advisory focuses on the need to strike a balance between protecting the privacy of victims and fulfilling the responsibility to disclose information.

Authorities stated, “When deciding whether or not to release information or records, the law requires us to apply a case-by-case balancing test to determine if the public’s right to access public records still applies.” They further stated, “We cannot establish a clear-cut policy or rule to withhold all information and records pertaining to victims.”

Kaul opted not to offer any remarks. Nonetheless, he released a statement in the spring concerning the third year commemoration of the constitutional modification.

“I am pleased with the outstanding effort that the Wisconsin Department of Justice puts forth to advocate for victims in Wisconsin,” Kaul expressed in a statement published on the website of the Marsy’s Law for All foundation. “Guaranteeing that the privileges of individuals affected by crimes are honored not only enhances the safety of Wisconsin but also plays a crucial role in attaining fairness.”

The Division of Criminal Investigation (DCI) of the department conducts inquiries into incidents such as police shootings, as required by a 2014 law that necessitates the participation of external organizations. The department’s website continues to publish case files containing the names of police officers.

The city’s police department’s interpretation of officer privacy in the case of the Oshkosh police shooting was deferred to in a press release. The intricate and conflicting duties have granted local authorities the ability to interpret, which they have done.

Marsy’s Law, as mentioned by Fallone, permits certain police departments to regress on transparency. Fallone, who served as the chair of the Milwaukee Fire and Police Commission for two years before resigning in July, stated this.

Fallone stated, “It is subjective and dependent on individual perception.” “Furthermore, I am not astonished that certain law enforcement agencies and legal representatives have a broad interpretation of police victimhood, while others have a more limited interpretation,” he added.

Marsy’s Law does not protect against disclosure in Milwaukee.

In the charging documents against a teenager who allegedly illegally modified a pistol that was rapidly fired like a machine gun, the name of Milwaukee Police Officer Andrew Langer has been identified as one of the officers wounded in the pair of police shootings on Cinco de Mayo.

The incident, which took place in 2018, involved a violent confrontation in which several Milwaukee officers tased, pepper-sprayed, and clubbed a man. The incident attracted significant public scrutiny and publicity, with cameras recording the incident and bystanders capturing it. At least nine officers, including one named in a lawsuit brought by the man, were involved in the altercation. Milwaukee police officials have confirmed that Langer is the only officer on the force.

The Milwaukee Common Council reached a settlement of $175,000 after the civilian filed a lawsuit claiming excessive use of police force.

The spokesperson for the Milwaukee Police Department said that they do not release the names of officers involved in shootings publicly. Chief of Police Fallone credits this to the interpretation of Law Marsy’s, which serves as a barrier against the disclosure of officers’ records in public requests or court proceedings by members of the police commission.

He said it is important to hold the officers involved in the use of force accountable, as their identities can be known later, although this does not always happen.

He said, “actions their for consequences any faced really never and around moved kind have who officers about upset still are residents.”

The firearm, which was legally possessed, engaged in a shootout with individuals in a vehicle during a disorderly incident. The 22-year-old Greenfield resident, whose identity remains undisclosed, was defending himself following the conclusion of the Milwaukee County District Attorney’s investigation, which determined that no charges would be pressed in an unrelated Cinco de Mayo shooting.

The district attorney’s office said that the investigation into the nonfatal shootings that occurred on May 5th is still ongoing. It is unclear whether the name of the officer involved will be released, and it is also uncertain if charges will be filed in these cases.

Winnebago DA: Police aren’t inherently victims

In 2022, in Shawano County, Lucas Christenson, a 46-year-old man, shot and killed a police officer. He aimed his gun at the officer and fired 11 times, striking Officer Buettner twice. After threatening his wife and son with a shotgun, Christenson was taken down by Officer Shawano.

In answer to a plea made by the district attorney of Shawano County, Sparr carried out the legal examination of the demise of Christenson — who had initiated an autonomous bid for county sheriff in 2014.

Apart from the deceased man’s spouse, the sheriff’s department refrained from directly disclosing the identity of the law enforcement officer. However, they did make public Sparr’s comprehensive report, which revealed the identities of all individuals involved in the incident on November 19, 2022. The shooting in question was thoroughly examined in collaboration with state investigators.

Sparr said, “Those titles possess the authority to execute legal procedures in the memorandum that we need to do.” “Ultimately, it is up to them to decide what actions they want to take.”

The recent report contrasts with the decision to withhold the officer’s name, who fired the deadly shots in nonfatal police shootings in Oshkosh.

Sparr stated that it is a decision he must make on a case-by-case basis.

Sparr said, “If we don’t know whether the victims were officers or not, I truly question if we have ever faced the explicit with them.”

According to him, the individual whose name was not disclosed, who happened to be the man’s separated spouse, was the one facing the greatest danger during that incident, as the officers failed to react.

“They were thinking of themselves as victims, but I guess that wasn’t really the case,” Sparr added. “It seems like no one else in law enforcement realized that the main person who was endangered was at least someone.”

In another incident from 2023, a police officer in Oshkosh fired on a suspect. The officer allegedly drove a car toward the suspect, whose name remains blacked out in the legal memo. Wisconsin Watch obtained the charging documents.

Clark Montrael, the 44-year-old suspect who survived a gunshot to the forehead, is facing felony charges of reckless endangerment and the charging documents have been identified.

If the case proceeds to trial, the details of the case will be presented to a jury.

“And then obviously, names are emerging, individuals must testify,” Sparr stated. “There’s no way to avoid it at that moment.”

Fallone stated that when police officers take the concept of victim privacy to an extreme, it becomes challenging to conduct regular scrutiny.

“According to Fallone, being a police officer and dealing with the challenges of public oversight, transparency, and disciplinary actions can be quite challenging. Some individuals may interpret these difficulties as falling within the scope of Marsy’s Law.”

The state DCI conducted an investigation into the shootings, and their agents disclosed the identities of the individuals involved. However, the district attorney’s office in Dane County has not identified the officers in two separate press statements, in which they declared the officers’ use of force as justified.

In November 2021, a despondent individual shot himself with his personal firearm, and in March 2022, District Attorney Ismael Ozanne identified the officers who employed force in a public statement exonerating Madison law enforcement officers who had deployed a stun gun on him.

Ozanne did not reply to inquiries for feedback regarding the policy of his office.

Introduction to the amendment of the constitution

Although it has been overturned in Pennsylvania and Montana due to conflicts with the U.S. Constitution, Marsy’s Law has been approved by voters in at least 14 states through ballot measures.

During the early 1980s, his sister, who tragically lost her life due to her former partner, was given a name inspired by legal principles. The campaign to ratify the constitutional amendment was financially supported by Henry Nicholas III, a billionaire in the technology industry.

At one point, the organization employed five registered lobbyists and spent $1.5 million on lobbying efforts.

Wisconsin’s Law Marsy’s was entirely funded by Nicholas’ national organization, spending nearly $4.5 million to sway voters in support of the constitutional amendment.

The Wisconsin Justice Initiative tried to organize opposition but was outspent by a ballot proposition that received support from both major political parties.

Kirchner reminisced about the 2020 campaign, stating, ‘They focused solely on one matter and possessed a substantial amount of funds.’ ‘There was no one opposing them who had the means to pay for television advertisements,’ thus, they resorted to airing advertisements urging individuals to vote affirmatively.

The question ballot that claimed a legal challenge was too simplistic. When the group won in Dane County Circuit Court, the Initiative Justice Wisconsin publicly urged Kaul to not defend the amendment, considering the well-publicized challenges in other states.

She stated, “They decided to battle for the legitimacy of the amendment. Therefore, Josh Kaul’s office opted against appealing and simply allowed Marsy’s Law to collapse.”

The Supreme Court of Wisconsin ultimately decided to uphold Marsy’s Law, but the decision was fractured, with five separate decisions applying different legal reasoning to sort out the criminal justice system’s separation of powers.

Ongoing legal obstacles to Marsy’s Law persist

In a battery case, witnesses are routinely sequestered to ensure that their testimony is not influenced by hearing the testimony of others. The victims’ rights guarantees, such as Marsy’s Law, prevent the prosecutor from being influenced by the testimony of other witnesses, including a contempt order against the prosecutor. Another pending challenge exists in the Court of Appeals.

Nela Kalpic, the director of Wisconsin’s Law Marsy’s, acknowledged the need to clarify how the law should be applied fairly. She said she was not familiar with the examples in Winnebago County, where multiple law enforcement incidents involving shots fired have occurred since 2020. She also mentioned that the names of those officers who have been released have been disclosed.

She stated, “over time, it is appropriate for the law to be applied by local and state courts and policymakers moving forward.”