Marion County Sheriff’s Office attorneys claim three deputies should be afforded victim protections following shooting incident

Marion County Sheriff Billy Woods speaks against an emergency ordinance to require face coverings during the Ocala City Council meeting at Ocala City Hall in Ocala, Fla. on Tuesday, July 21, 2020. The City Council voted 3-2 against the emergency mask ordinance suggested by Councilman Matt Wardell that would have required people in Ocala to wear face coverings in indoor locations amid the COVID-19 pandemic. [Bruce Ackerman/Ocala Gazette] 2020.

According to attorneys for the Marion County Sheriff’s Office (MCSO), the identities of three deputies involved in a fatal shooting in Fort McCoy on Nov. 15 are protected under a law meant to protect victims from harassment by their attackers. The law is called Marsy’s Law.

Approximately three hours following the incident, the MCSO posted to Facebook:

“At approximately 7:40 p.m. on November 15, 2021, deputies responded to the area of NE 140th Avenue and NE 245th Street Road, (Orange Springs/Fort McCoy) in reference to a shooting. Upon arrival, deputies located a deceased male at the residence. They were then met by a man, who engaged them with a shotgun. After refusing several commands to drop the weapon, deputies were forced to protect themselves and fired on the subject. The armed subject is deceased. At this time, this is an active investigation and MCSO is fully cooperating with the Florida Department of Law Enforcement (FDLE).”

Requests for more information from the Sheriff’s office were directed to FDLE and attorneys for the Sheriff indicated they would not be releasing the deputies or decedents names, citing Marsy’s Law.

Marsy’s Law was first passed in California in 2008 and then adopted by Florida on Nov. 6, 2018, after 61% of state registered voters voted in favor of it.

According to the website of the law’s proponents, Marsy’s Law was named after Marsalee (Marsy) Ann Nicholas, a University of California Santa Barbara student, who was stalked and killed by her ex-boyfriend in 1983.

“Only one week after her murder and on the way home from the funeral service, Marsy’s family stopped at a market to pick up a loaf of bread. It was there, in the checkout line, that Marsy’s mother, Marcella, was confronted by her daughter’s murderer. Having received no notification from the judicial system, the family had no idea he had been released on bail mere days after Marsy’s murder,” the website states.

The goal of Marsy’s Law is twofold – to keep the victims informed of the progress on the cases against their assailants and to protect the victim’s personal identities.

Marissa D. Crill, Assistant General Counsel for the MCSO, explained why the agency’s deputies qualified for this protection: “Having been threatened with deadly force, the deputies in this case were the victims of a crime (attempted murder/aggravated assault) and therefore entitled to the protection that Marsy’s Law affords.”

Crill pointed to the First District Court of Appeal case Fla. Police Benevolent Ass’n, Inc. v. City of Tallahassee, which is currently being challenged before the Florida Supreme Court. Crill wrote by email that the case “held that police officers who had to respond with deadly force after being faced with the imminent threat of harm were ‘victims’ under Marsy’s Law.”

The Florida Association of Sheriffs issued a legal memo on the case cited by Crill, which concluded that, “The court did not address the issue of whether a victim, including an officer, must invoke the protections of Marsy’s law or if the protections should be extended without any request from the victim for identifying information to be withheld. Because this issue has not been settled, sheriffs may reasonably construe Marsy’s Law in either manner. In other words, a sheriff’s office may require a victim, including an officer, to make such a request, or the sheriff’s office may redact or withhold identifying information without any action taken by the victim to secure Marsy’s Law protections.”

According to a poll earlier this year of Florida sheriff’s offices by the First Amendment Foundation, there are differing opinions amongst sheriffs on how this law should be applied to law enforcement.

The foundation reported that some sheriff’s offices felt the law should only be applicable when a member of law enforcement was a victim of a crime outside the line of duty since officers accept certain risks in their professions. Others stated it was their practice to release deputies’ names unless there was some other reason to keep it protected – such as for a deputy working undercover.

On Nov. 18, the Supreme Court approved amendments to procedural rules related to Marsy’s Law that were submitted by committees organized to explore the matter by the Florida Bar.

Amongst other things, the procedural rule update included the definitions of who is a victim.

“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 or against whom the crime or delinquent act is committed. The term ‘victim’ includes the victim’s lawful representative, the parent or guardian of a minor victim, or the next of kin of a homicide victim, except upon a showing that the interest of such individual would be in actual or potential conflict with the interests of the victim. The term ‘victim’ does not include the accused.”

A Florida Bar news report dated Nov. 22 on the rule amendment indicated that the committees struggled to draft some of the rule language because of issues that needed to be resolved by the Supreme Court. Meanwhile, “the committee recommended a system where the police agencies and state attorney offices that file charges would indicate on the initial filing documents whether Marsy’s Law protections apply.”

The report stated that “Chief Justice Charles Canady wrote a partial concurring and partial dissenting opinion that addressed that issue and said he would add language to the definition of ‘confidential crime information’ in the new rule.”

The report further quoted Canady as saying that the Marsy’s Law amendment creates, “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.’ (Emphasis added.) By establishing a ‘right to prevent’ disclosure, the constitutional provision indicates that action must be taken by the victim to assert the right. At the end of the definition of ‘confidential crime victim information,’ I therefore would add the following phrase: ‘If the victim has asserted the right to prevent disclosure of such information.’”

Crill did not identify who the deputies feared harassment from, only that they were entitled to Marsy’s law protection, which prevented the department from releasing their names.

Nine days after the incident, the exact location of the incident in Fort McCoy was released as were as the names of the decedents – James Levitz and Micah Brillhart.

Crill wrote by email, “I reached out to FDLE yesterday to iron out whether the deceased were protected under Marsy’s Law, and only then did we learn that they were not. Accordingly, we are releasing the names of the deceased. I apologize for the delay on it, but we at least had to do our due diligence to ensure that we complied with Marsy’s Law.”

Without the names of the deputies involved in the shooting, the Gazette is unable to make a public records request for employment files reflecting their background and/or any prior relevant work and training history.

Dana Kelly, a spokesperson for FDLE says that MCSO is not required to report all their officer shootings to FDLE, rather MCSO “may opt to request FDLE to investigate their officer use of force (including officer involved shootings) incidents.”

“When local law enforcement agencies request that FDLE investigate an incident of their officer’s use of force, we conduct an extensive investigation that includes interviewing witnesses and officers, establishing a timeline and collecting and analyzing the evidence. Once complete, we send our investigative findings to the State Attorney’s Office, and that office determines whether or not to file criminal charges. Because each case is unique, there is no standard time estimate for how long each investigation will last.,” said Kelly.

Kelly also confirmed that this case is their only active officer use of force open with the Marion County Sheriff’s Office.