In 1983, Marsy Nicholas, a student at the University of California Santa Barbara, was stalked and killed by a former boyfriend. Just one week later, her mother was in a grocery store – right after visiting Marsy’s grave – and came face-to-face with her daughter’s killer.
No one had informed the family that he had been released on bail.
That was the impetus for what eventually became Marsy’s Law, which has been passed in several other states. The law ensures that courts consider the rights of victims and their families when it comes to bail and release and gives the family legal standing when it comes to various hearings involving the accused or convicted.
Marsy’s Law was never intended to shield law enforcement officers from public identification when they are performing their public duties. However, that’s exactly what’s happening in South Dakota, where a highway patrol officer is invoking Marsy’s Law to keep their name from public release. The state adopted Marsy’s Law in 2016.
The officer shot a 21-year-old man – identified as Kuong Gatlauk – on September 16 after an incident at a traffic stop. Gatlauk apparently said he intended to harm himself, and then escaped from Officer Unknown’s vehicle. Officer Unknown went after him, and Gatlauk threw a beer can at the cop, attempted to assault the officer, and tried to steal his gun. Officer Unknown then shot Gatlauk twice; once in the bicep and once in left shoulder, while the two were struggling.
No Exceptions for Law Enforcement
As expected, Gatlauk was charged with assaulting the highway patrol officer, whose gender as well as identity is not known. The officer is claiming that his or her name should remain confidential under Marsy’s Law, as they were a victim. Even though the incident occurred in the course of duty and would normally become a matter of public record, the South Dakota Attorney General Marty Jackley agreed with the officer. As written, there is no exception under Marsy’s Law for police officers. Marsy's Law defines a victim as "a person against whom a crime or delinquent act is committed." Jackley said a person becomes a victim once a crime is committed against them, “not only if formal criminal charges are filed against the alleged perpetrator.” Because Gatlauk attacked Officer Unknown prior to being shot, that makes Officer Unknown a victim.
North Dakota Differs
Neighboring North Dakota has also passed Marsy’s Law, but one State’s Attorney came to a different conclusion when it involves police officers. In the period between December 2016 – when Marsy’s Law went into effect - and July 2018, eight North Dakota officers shot someone in the line of duty. The names of the officers were not released until the investigations were completed.
However, the Grand Forks County State’s Attorney David Jones determined that the names of two Grand Forks officers who shot a 41-year-old man on July 8 were not protected under the law, and their names were released on July 10.
This doesn’t mean another State’s Attorney in North Dakota won’t decide differently since each county office serves as its own entity. Marsy’s Law permits victims to invoke certain rights, and those include the confidentiality of information that could lead to harassment of the victim or their family.
There’s still a great deal of confusion. In January 2017, Rolette County Sheriff’s Deputy Colt Allery was killed in a shootout with Melvin Delong, who was then shot by other law enforcement personnel. While Allery’s name was released immediately, that was not the case with Delong or the surviving officers. After the investigation was completed a few months later, all names were released.
It was right after the Allery killing that Attorney General Wayne Stenehjem set out guidelines stating that nothing in Marsy’s Law prevented the release of the name of a victim or their family. One Bismarck deputy police chief says that very few people do invoke the law, but he’s not sure how it works even when it is invoked.
Clear Up the Confusion
If even law enforcement personnel don’t understand a law, then that law requires clarification. The ACLU opposes Marsy’s Law because “Granting equal constitutional rights to a victim identified at the outset of criminal proceedings threatens due process and diminishes fundamental principles of American justice.”
When it comes to preventing the release of the name of an officer involved in an investigation, that is especially true. As one North Dakota attorney remarked, “It’s been extended to cover situations which I don’t think were ever intended to be covered in the first place.” The clear concern is that if an officer is involved in unlawful behavior while on the job -an unjustified shooting perhaps- all they have to do is claim that they were assaulted first, which they frequently do, and, abracadabra, their name disappears from public scrutiny. This is not what Marsy’s Law was intended for and is a loophole that must be closed.
Joseph Tully is a certified specialist in criminal law by the California state bar, and has been recognized as a Top 10 Criminal Defense Attorney by Attorney and Practice Magazine, one of an elite few having earned that designation. To connect with Joseph: [hidden email].