COLUMBUS, Ohio (WCMH) – When a sweeping piece of victims’ rights legislation went into effect in April, it was a culmination of five years of work: meetings, draft legislation and intense collaboration among law enforcement, victims’ rights groups, courts and lawyers.

But now enacted, it’s bringing about another change: the withholding of the names of law enforcement officers involved in deadly shootings, sometimes of unarmed people.

Last year’s House Bill 343 codified Marsy’s Law, a constitutional amendment Ohioans overwhelmingly passed in 2017 that outlined certain rights of crime victims. Under the law, victims are entitled to notification about important dates, updates to a defendant’s case, restitution and reliable contact with prosecutors, among other things. 

Less than two weeks after HB 343 went into effect, however, law enforcement agencies began raising concerns. Most significant was the requirement that upon initial contact with a victim, officers go over a victim’s rights form in detail, regardless of the severity of the crime, the likelihood of prosecution, or the victim’s ability in a traumatic moment to process the information.

“We are in this profession to help victims; however, the reality is that providing this form to all victims as the law seems to now require will do nothing for most of them (because a suspect will never be charged) and takes up the time of officers we do not have to spare,” Jeff Furbee, police legal adviser for Columbus, wrote in an April 19 email obtained by NBC4.

By May, HB 343’s sponsor, Rep. Andrea White (R-Kettering), began to discuss revisions. Some of the “top brass” from Columbus police attended, said city attorney Zach Klein, including Furbee and Deputy Chief Greg Bodker. Law enforcement from Dayton and Cincinnati attended too.

The revisions clarified many procedural things, but the biggest change was a provision automatically opting victims of violent crime into certain rights until they speak to a prosecutor. Those rights include notifications of court dates but also the ability to redact their name, address and other identifying information from public records related to the case.

Within days of passage, a consequence of the amendments to Marsy’s Law began rearing its head.

On July 9, multiple Columbus police officers exchanged gunfire with men at the end of a robbery chase. The shootout on Interstate 70 closed the highway for hours and left a Columbus police officer seriously injured. He was hospitalized for more than a month, including rehabilitation.

On July 11, Furbee asked law enforcement from Toledo, Cincinnati and the state’s Bureau of Criminal Investigation if, under the revised Marsy’s Law, police officers were considered victims and thus entitled to anonymity. All agencies said yes.

Two days later, Columbus police explained in a news release that Marsy’s Law required the names of officers involved in the I-70 shootout be withheld. Because the suspects were shooting at the officers, all the officers were considered crime victims, according to the release.

“We met with Rep. White, and other reps, when this was being written, and warned her and her staff of this scenario,” Furbee wrote in a July 11 email to a BCI attorney. 

Absent any carve-out to release the identity of police officers who use deadly force against suspects, Klein said local governments are left to follow the language of the law. With the victim of crime defined broadly, that often means police officers who kill on the job remain anonymous – unless later indicted by a grand jury. 

Even before Marsy’s Law changes went into effect, police departments across Ohio rarely offered the names of officers who killed suspects in initial releases, according to an NBC4 analysis. Sometimes, officers’ names wouldn’t be released until months later, at the conclusion of a BCI investigation or grand jury deliberation.

But before the changes to Marsy’s Law, police departments did not have a legal reason to justify keeping officers’ identities secret. After several highly publicized killings of citizens by law enforcement, Klein acknowledged how withholding those officers’ names could further sow mistrust in the police. 

“There is a real concern about the lack of transparency that leads to undermining the progress that has been made, that can undermine the public trust as it relates to officers using force. That’s why I think we, as a city, raised that concern with the legislature,” Klein said. “We told them this is a big deal, by shielding the officer’s name, because it leads down a slippery slope.”

More than half of fatal officer-involved shootings in Ohio in 2023 happened in the three months since the amendments to Marsy’s Law went into effect, according to data from the Gun Violence Archive. Among the most high-profile is the death of 21-year-old Ta’Kiya Young, an unarmed pregnant woman who was shot by a Blendon Township officer in August.

Blendon Township withheld that officer’s name because Young grazed him with her car, making him the victim of vehicular assault. A second officer, who never drew his weapon, is considered a victim because his hand was in the driver’s side window when Young began moving the car. 

But Marsy’s Law does not mean that officers’ names will be held indefinitely. The BCI investigates all officer-involved shootings, and Marsy’s Law does not impact how use-of-force investigations proceed, Klein said. If presented with a case, grand juries are privy to the identity of the officer.

And if criminal charges are filed against an officer following the deadly use of force, all claims to Marsy’s Law are off. Criminal defendants are excluded from the definition of “victim” in the Ohio Constitution.

In cases where an officer is not indicted, that officer’s name may never become public record. When it comes to shielding officers’ identities, Klein said until the law changes, police departments’ hands are tied, whether in Columbus, Blendon Township or across the state.

“I understand why the public wants to know, I appreciate why the public wants to know, I respect why the public wants to know,” Klein said. “But I don’t think it’s sufficient for me to then be the arbiter of that decision, to say, ‘Your rights are going to be violated, sorry about your luck.’”

And he reiterated a point Furbee made in his July 11 email to a BCI attorney – the city warned White what would happen if victims of violent crime were automatically opted into confidentiality.

“It really is the legislature’s call,” Klein said. “They’re the ones that chose to broadly define victims, they’re the ones that chose to ignore our advice and recommendation to include an exception for law enforcement.”

Elizabeth Well, legal affairs director at the Ohio Crime Victim Justice Center, called that characterization of the revision process “disingenuous” at best.

How a victims’ rights bill opened a gaping hole in public records law

Before the codification of Marsy’s Law, and even with rights written into the constitution, Well said Ohio was a “patchwork” of victims’ rights policies. Some judges were receptive, she said, while others did not “believe in” victims’ rights. Codifying Marsy’s Law ensured that victims had a mechanism to enforce those rights, or seek recourse if their rights were violated.

“I could be a victim of crime, and I could try to go to court and I could find that the courthouse doors were locked. I have literally been locked out of the court as an attorney, so you can only imagine what victims are going through in that jurisdiction,” Well said. “And then I could go 30 minutes down the road to another jurisdiction, where they were completely on board with the victim’s rights and doing a great job.”

Left with unenforceable rights after the Marsy’s Law constitutional amendment passed, Well said the Ohio Crime Victim Justice Center took the lead on drafting legislation. White coordinated meetings with about three dozen interested parties, Well said, from every corner of the criminal justice system.

It was “one of the most democratic” legislative processes Well had ever seen. Rarely had victims’ rights organizations been able to weigh in on legislation, let alone lead the charge to write it.

Law enforcement was not heavily involved in the drafting process before the law went into effect, Well said. It was only during the law’s implementation that agencies began raising concerns.

The first time Well remembered someone asking about whether police officers’ identities could be withheld under Marsy’s Law, she said it was during a Zoom meeting with interested parties about possible revisions to the recently enacted legislation. 

“We said the same thing to them at that time that we said to everybody else who had brought concerns,” Well said. “We said, ‘Draft language – you draft the language of what you think this should look like.’”

At an in-person meeting shortly after, Well said she explained again that anyone with concerns about specific provisions should submit proposed language. She said she learned early in the drafting process that her attempts at determining what an agency wanted often backfired, and it was better for the parties at stake to write their own suggestions.

No law enforcement agency submitted language about the release of officers’ identities under Marsy’s Law, Well said. 

Klein told NBC4 that officials from the city and Columbus police emphasized during their conversations with White that officers who used deadly force against suspects would be considered victims, and thus subject to automatic confidentiality.

White was not available for an interview by the time of publication. She did not directly respond to questions about the application of Marsy’s Law in deadly use of force incidents, but in a statement said that the intention of the revisions was “to protect vulnerable victims of violent, sexually-oriented or protection order violation crimes who are unable to complete the request form at first contact with law enforcement.”

In emails obtained by NBC4, Furbee with Columbus police made line-by-line revisions to the legislation but did not mention how the law could apply to officer-involved shootings. In the records provided to NBC4, the only documentation that Columbus police considered officers’ anonymity under Marsy’s Law was in Furbee’s emails to various law enforcement agencies on July 11 – days after the revisions were codified and the I-70 shootout occurred.

On June 20, White explained to the House Civil Justice Committee why it was necessary to add her 130-plus pages of legislation into an unrelated bill. During the 30-minute hearing, only Rep. Richard Brown (D-Canal Winchester) raised concern about rushing to codify the amendments. 

“Why wasn’t this just a standalone bill, where it could have been assigned to the proper committee – the criminal justice committee, not the civil justice committee – and had hearings with proponent, opponent testimony so that it could be fully vetted, so that when folks voted on it they would know what the heck they were voting on?” Brown asked.

The next day, the House Civil Justice Committee, Brown included, forwarded SB 16 to the House floor, where it passed 90-2. The next week, it unanimously passed the Senate, and Gov. Mike DeWine signed the amendments into law, effective immediately.