The Bismarck Tribune Was Right to Publish the Name of Officer Who Invoked Marsy’s Law

Last week I posted about an incident from Bismarck where an officer involved in shooting a member of the public who was allegedly attacking him invoked Marsy’s Law to hide his identity from the public.

Marsy’s Law is the supposed “victims rights” amendment to the state constitution passed by voters last year. Among the bad ideas it enshrined in our state’s most important legal document is the idea that victims have a right to have any identifying information about them kept from the public. This officer, before the shooting incident he was involved in has even been adjudicated, declared himself a victim and invoked this right. The Bismarck Police Department agreed to his request and refused to divulge his name to the press or the public.

But the Bismarck Tribune was able to figure out his name from various public records and published it anyway. Now the paper is being targeted by protesters for doing so:

Back the Blue supporters demonstrated outside of The Bismarck Tribune on Monday, voicing opposition to a news story that named a police officer who was involved in a shooting.

The officer, who shot a suspect after he was attacked while responding to a call, invoked Marsy’s Law, a new law approved by voters that expands the rights of crime victims. […]

Heather Ziebarth, of Bismarck, said she was hoping to send a message that the community wants to see the newspaper support law enforcement.

“We are a community that supports our law enforcement. Our local newspaper has shown on numerous occasions that they don’t,” Ziebarth said.

I can’t speak to the “numerous occasions” Ziebarth is referring to, but regarding this occasion I think the Tribune was in the right to publish the officer’s name.

Law enforcement officers are entrusted with vast powers over the public. The power to fine us. The power to arrest and incarcerate us. The power even to use violence against us when circumstances warrant it.

But in order to ensure that these powers are used appropriately, and are not abused, there must be a degree of transparency and accountability for the cops. That means a member of law enforcement who shoots a member of the public should be identified. Not the least so that we can explore that person’s background, including other incidents in which they’ve used force, and understand how that might relate to the situation at hand.

Wanting this transparency and accountability is not a failure to support law enforcement. I’d argue that expecting law enforcement to embrace transparency is some of the best support we can give them. It enhances trust in law enforcement, which in turn makes law enforcement’s job easier.

The problem here is not the Bismarck Tribune using the 1st amendment to keep law enforcement transparent. The problem is not that this Bismarck cop necessarily did anything wrong. From my understanding of the incident (some details here) force seemed justified.

The problem is Marsy’s Law, which is ill-considered policy making law enforcement less transparent.

On a related note, I interviewed North Dakota Newspaper Association lawyer Jack McDonald about this issue last week (audio below) and he flagged for me numerous instances where law enforcement has used Marsy’s Law to keep information from the public.

Here’s a summary he gave me via email after the show:

NDSU said it couldn’t comment further about a young person found dead in one of its dorms because of Marsy’s law; Rolette County State’s Attorney declined to release the names of those involved in a January shooting death of a deputy and a home invasion that resulted in the death of the intruder (the names of the shooter and the home invader were Marsy protected); the name of a man who was shot during a Grand Forks gas station robbery in August was withheld because of Marsy’s law; The Jamestown Police Department cut off public access to its daily log (required to be open under state law) because of Marsy (nobody asked, as is required under Marsy, they just did it); The Stutsman County Sheriff is deleting entire entries in that log, again because of Marsy

For anyone interested in transparent, accountable law enforcement this is a big problem.

Here’s the full audio of the show featuring McDonald:

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