FARGO - Police in Fargo and West Fargo might restrict information about the identity of crime victims and the location of crimes as a result of Marsy's Law, the new victim's rights law passed by North Dakota voters on Nov. 8.
Deputy Chief Joe Anderson of the Fargo Police Department said no decisions have yet been made, but said the law, which forbids disclosing "confidential or privileged information about the victim," could bar release of crime victims' names or the location of crimes.
Similarly, West Fargo Police Chief Mike Reitan said he believes the law would require law enforcement officers to withhold victims' names and addresses, but said he is seeking legal advice.
South Dakota law enforcement agencies including the Department of Public Safety and Sioux Falls Police Department have determined that South Dakota's Marsy's Law, also passed by voters Nov. 8, prohibits the release of victim's names. In South Dakota, some officials have concluded that records of state reportable crashes can no longer be made available.
Police in Sioux Falls announced earlier this week that they are "no longer able to provide the name or specific address of a business or residence where a crime has taken place." Addresses in police logs will be substituted by a reference to a police district beat where a call occurred.
The privacy provisions restricting release of information about crime victims in the North Dakota and South Dakota Marsy's Law are identical.
"We are having discussions internally with the city attorney to try to figure out what that means," Anderson said Wednesday, Nov. 30. "I would interpret it much like South Dakota has."
Anderson said that interpretation might conflict with North Dakota's open records law. Fargo police officials will meet Thursday, Dec. 1, with Erik Johnson, the city attorney, to discuss the issue to get some guidance.
A lawyer who is an advocate for Marsy's Law in North Dakota said the law's privacy provision only takes effect if the victim asks criminal justice officials not to release their name or address.
"The victim has to claim these rights and tell the officer they don't want that information released," said Lacee Anderson, a Bismarck lawyer and Marsy's law supporter. "So it really comes down to the victim."
Also, Lacee Anderson said, Marsy's Law does not allow victims to take legal action if their name or other information is erroneously released against their wishes, so law enforcement officers could not be held liable.
"There's no cause of action," she said.
Marsy's Law supporters have money available to train law enforcement officers and prosecutors on the law, and have been consulting with the North Dakota Attorney General's Office to conduct training seminars.
"Right now, we're jumping the gun a little bit," Lacee Anderson said. Marsy's Law will take effect Thursday, Dec. 8, 30 days after voters approved the amendment to the state constitution.
"It's not going to be much of a change," she said, referring to the law's privacy provision.
Jack McDonald, a lawyer who represents the North Dakota Newspaper Association, said he believes the privacy restriction in Marsy's Law does not apply to information about crimes that is routinely made public.
"If somebody is shot in a robbery attempt, that's a public event," McDonald said. "It's already public information. I think the intent of the law is to prevent release of information that otherwise wouldn't be public."
Crimes, fires and accidents, he said, take place in the public, and therefore should not be considered confidential. "I don't think that's a logical reading of the law," McDonald said.
Law enforcement officials already are inclined to restrict information about crimes, and Marsy's Law now gives them another excuse, he said.
In California, the first state to adopt Marsy's Law, there is no broad ban on releasing the names of crime or accident victims, said Jim Ewert, general counsel for the California Newspaper Publishers Association.
"Members of the public, and more particularly, members of the press still have access to that information," he said.
"I think it's an erroneous interpretation and certainly not consistent with the spirit of the law" to adopt a blanket policy withholding victims' names, Ewert said.
If police were to routinely withhold information about crimes, it would lead to negative consequences, including the erosion of public trust in law enforcement, he added.
"Without this information, it's going to be impossible for anyone to track where crimes are occurring," Ewert said, which he called important information in evaluating the effectiveness of law enforcement. "These are all tools that are absolutely necessary for the public to use."
But Reitan, who noted that the North Dakota Chiefs of Police Association did not endorse Marsy's Law, said withholding victims' names could be an unintended consequence of the law.
"I think we're in a position where we're not going to be able to release names to the press for a number of things," he said. "We don't want to be in a position where we're re-victimizing a victim, either."