The Ohio Supreme Court sided with the city of Columbus over the Columbus Dispatch, agreeing that a state statute meant to protect the identities of crime victims can apply to on-duty police officers.
The Columbus Dispatch sued last year to release the names of eight officers who responded to a July 2023 Hilliard bank robbery. These officers' names were kept confidential by the city under Marsy's Law. The law was passed as a constitutional amendment by voters in 2017, to give broad protections to crime victims.
Justice Patrick DeWine authored the majority opinion — published Tuesday — with Chief Justice Sharon L. Kennedy and Justices Joseph T. Deters, Daniel R. Hawkins and Megan E. Shanahan joining him. Justice Jennifer Brunner and Patrick Fischer wrote separate opinions that concurred and dissented with DeWine's opinion.
In July 2023, one officer was shot by the suspect during a shootout on I-70 after the bank robbery. The officer survived his injuries, while the suspect was shot and killed by officers.
DeWine wrote that Marsy’s Law provides a definition of a victim, which includes any person against whom a criminal offense is committed or who is directly harmed by a criminal offense.
“Applying the plain text of the amendment, we have no difficulty concluding that an ordinary understanding of Marsy’s Law’s definition of victim encompasses the officers in this case,” DeWine wrote.
Beryl Love, the regional editor for the USA TODAY Network Ohio, responded to the ruling in a statement to WOSU.
“If you understand the history of Marsy’s Law, you know that it was not intended to shield the names of police officers involved in fatal shootings. The court today green-lighted this overreach and in doing so reduced the transparency that is vital to preserve the community’s trust in law enforcement," Love said.
Columbus City Attorney Zach Klein said in a statement the ruling affirms how the city has interpreted and used Marsy's Law.
“I respect and appreciate the media and the public’s desire to receive important records and information, especially when it involves officers and use of force," Klein said. "Our goal all along has been to follow the law as written by the Ohio legislature, and today’s ruling by the Ohio Supreme Court affirms that interpretation of Marsy’s Law. If the Ohio legislature chooses to amend or clarify these important public record provisions in the future, we will of course follow those laws at that time.”
DeWine's opinion focused on only two of the officers involved in the 2023 shootout on I-70. But, the case could be used as precedent for similar cases before the court in the future.
"This is a case in which the text is clear and determinative with respect to police officers. They easily fall within (Marsy's Law's) scope," DeWine wrote. "In other words, because police officers are persons against whom crimes can be committed, they can be victims."
Police agencies maintain that the officers are crime victims, and their identities are protected by Marsy’s Law.
Since then, Columbus and other police departments have use Marsy's Law to justify hiding the identities of police officers who are involved in shootings.
This includes the fatal shooting of Ta'Kiya Young by Blendon Township Police Officer Connor Grubb. The township hid Grubb's identity and blurred his face on body-worn camera footage.
Grubb was identified by WOSU when a Franklin County Prosecutor's Office employee with a similar last name had to clarify she had no relation to Grubb. Grubb was later identified to the public when he was charged with murder for killing Young.
Grubb was just found not guilty of all charges in the case last week.
DeWine wrote that the Dispatch had an "uphill battle" to prove its argument. He said the court has never recognized a free-standing constitutional entitlement to public records, but instead recognizes a right to public records with caveats provided in the Ohio Constitution.
DeWine recognizes the provisions of Marsy's Law as one of those caveats.
"Even if we were to conclude that the Constitution provides some generalized right to obtain public records, we would be hard pressed to say that this generalized right prevails over the more specific guarantee of crime-victim privacy rights established by Marsy’s Law’s constitutional protection," DeWine said.
Fischer's separate opinion stated that identifying information about the first two officers on the scene, labeled as Officer John Doe 1 and Officer John Doe 2, could be redacted from the records provided to the Dispatch.
Fischer dissented in part, noting six other officers joined the incident, and the city has not revealed their identities. Fischer wanted to make additional recordings from the incident available to the Dispatch.
DeWine responded to Fischer's opinion, writing Fischer "appoints (himself) lawyer for the Dispatch" and makes arguments Fischer believes the Dispatch should have made. DeWine argues the Dispatch only asked for the identities of the first two officers.
"Then, without giving the (Columbus Police) an opportunity to respond to its arguments, it puts back on the judicial robe and pronounces itself fully convinced by the arguments it has made on the Dispatch’s behalf, declaring the Dispatch the victor," DeWine wrote.
Brunner wrote in her separate opinion that she agrees a police officer can be a crime victim. However, Brunner wrote the majority opinion was unconstitutionally applying Marsy's Law in this case.
Brunner, the lone Democrat on the court, wrote while police officers may be victims under the state’s law officers who are on duty in public do not have an expectation of privacy.
She quoted U.S. founding documents and former U.S. presidents Thomas Jefferson and James Madison who argued that for the public to grant its consent to be governed, the public must have information about the government’s conduct, as opposed to uninformed or misinformed consent.
"If this court acquiesces to the other branches of government before it fulfills the duty to ensure that the power of self-governance reserved by the people is kept by them, it tips the scales toward political slavery to the government officials who are required to serve them," Brunner wrote. "And when such a scenario exists, the people’s further consent is at best starved of knowledge and at worst procured through obfuscation, or deception, that usually accompanies corruption."
Brunner argues Ohio's definitions of privacy are too broad and sometimes remain undefined, especially around the expectation of privacy for public officials.
"The crime victims here are police officers. Police officers are charged with many critical responsibilities, some of which they fulfill outside of public view. But many of those responsibilities are—and by definition must be—performed in and before the public," Brunner said.
Brunner said these officers didn't have an expectation of privacy in their names and identities. She said that is particularly true given that a directive of the Columbus Police Department provides that the department’s personnel “shall give their name and badge/tech/IBM number to any person upon request” and that “[u]niformed sworn personnel shall display their identification card to any person upon request or as soon as safe and practical.”
Most of the debate during oral arguments before the Ohio Supreme Court in February revolved around whether or not police are exempt from the protections Marsy's Law provides to victims of crime. Justice Fischer and the state's attorney Jana Bosch, the Ohio Deputy Solicitor General, illustrated the debate in an exchange during the arguments.
Fischer was quick to ask questions of Bosch and the Columbus Dispatch's attorney Jack Greiner, interrupting both just as they started their arguments.
"They walk to the crime. They go to the crime... to get shot at, maybe," Fischer said.
"It is true that they often put themselves in harm's way to serve the public," Bosch responded. "But that doesn't change their status as a person, and it doesn't change anything about the text of Marsy's Law."
Fischer interrupted Greiner earlier to ask him, "does it matter who shot first? If someone shoots at you, aren't you a victim?"
"Carrying a gun, acting in the official capacity as agents of the state, as state actors, (police officers) come to that scene in furtherance of that position, then I do not think that it matters if the suspect shoots first or if they shoot first," Greiner responded.
The Florida Supreme Court faced this same question last year and ruled 6-0 that the Sunshine State's version of Marsy's Law should not shield officers identities from public disclosure.
Fraternal Order of Police Capital City Lodge #9 President Brian Steel told WOSU the ruling is a win for police officers. Steel said he responded the day of the July 2023 shootout on I-70 and still relives those memories.
"I talk to the officers involved all the time. They were one hundred percent victims of crimes. You don't all of a sudden not become a victim of crime simply 'cause a uniform you wear," Steel said.
Steel said he respects news media and the public who seek public records, but criticized the Dispatch for arguing the case was about transparency.
"What this all comes down to is the Dispatch wanted full, unredacted access simply for what? The story," Steel said. "Now we could pretend it was for transparency... It's just to print it in the paper, to sell papers."
Steel said officers who shoot at someone and are not a victim will still be revealed. WOSU pointed out to Steel that in most police shootings, officers often give statements that claim they feared for their lives.
Steel then gave an example of the Columbus Police officers who traveled to Milwaukee Wisconsin for the Republican National Convention last year. The officers fatally shot a man, but were identified by police.
"Those officers were were justified in shooting an individual to to protect the third person, but the officers were not victims. Therefore, those officers' names were immediately released," Steel said.
Steel said the officer who was injured on I-70 2023 is still recovering from his injuries and Steel still doesn't know when the man may become an active police officer again.
"When you take multiple gunshots to your abdomen, to your to your intestines, your bowels, it's just... he's just fighting infections over and over. So he's hopeful that he will come back to the job one day, but right now he's still he's still recovering," Steel said.
Emily Cole with Ohio Families Unite for Political Action and Change said in a statement the group is disappointed in the decision. Cole's organization advocates on behalf of people who have experienced police brutality, among other issues.
"Either (police) are acting on behalf of the state, or they are not. If law enforcement initiate the interaction, they should not then have the ability to shield their identity," Cole said. "Law enforcement were never considered in the original bill language and there was no intent to create new protections for state actors through Marsy’s Law."
Cole said the OFUPAC wants to work with the legislature to correct this in the law.
