For the second time, a South Dakota police officer involved in a fatal shooting is using a state law to remain anonymous.
The so-called Marsy’s Law provides protection for crime victims in more than 30 states, and in South Dakota that includes law enforcement officers.
While state voters have approved the victim’s rights law twice, some worry it’s not being used as intended.
A few weeks ago Pennington County Sheriff’s deputies were after a young man in Rapid Valley. They pursued 19-year-old Matthew John Lorenzen onto Interstate 90. Pennington County Sheriff Kevin Thom describes the rest of the scene.
“[The] individual fired at our deputies during the pursuit, ultimately crashed, came out of the vehicle with a weapon, which resulted in one of our deputies firing a shot that killed the individual,” Thom says.
The public will not know which deputy shot and killed Lorenzen.
That’s because the sheriff’s department says Lorenzen shot at the deputy during the pursuit. That made the officer, a crime victim. The sheriff says it was the individual deputy’s decision to invoke Marsy’s Law, not the department.
“My position is that law enforcement, and law enforcement officers, are entitled to the same constitutional protections as any other citizen,” Thom says. “They’re citizens of our state. They don’t forfeit that when they put a badge on. So, they’re still entitled to those protections.”
Thom calls it an unfortunate scenario that involved a loss of life and trauma as a result.
He has asked the Division of Criminal Investigation to conduct a review of the incident.
This isn’t the first time a South Dakota law enforcement officer has used Marsy’s Law.
In September, after a high speed chase on I-29 a state Highway Patrol Trooper shot 21 year old Kuong Gatluak. State investigators say Gatluak tackled the trooper and reached for her weapon. Gatluak was shot twice and survived.
Officials with the South Dakota Highway Patrol declined to comment, but issued a statement that reads…
“The South Dakota Highway Patrol trooper in the officer-involved shooting WAS the victim and has, in accordance with Marsy’s Law, invoked their right not to be identified. The case is now proceeding through the court system. The Highway Patrol’s concern is for the safety and well-being of the trooper.”
Attorney General Marty Jackley called the use of force justified. And again, because that trooper was the victim of an assault, she was not named.
South Dakota voters have passed Marsy’s Law twice. In 2016, the measure passed with 60 percent of the vote. In 2018, the law was revised and 80 percent of voters said yes. For now, it’s sealed into the constitution.
Sioux Falls Representative Mark Mickelson is the outgoing Speaker of the House. He worked on the revisions to Marsy’s Law this year.
He says he’s disappointed the highway patrol trooper invoked Marsy’s Law, but believes the officer has the right to do so.
“I do think that when someone takes on a role serving the public like that, then maybe there’s a little bit of a different standard,” Mickelson says. “That was one of the issues that some of us had with writing things like a very detailed set of a couple thousand words of Marsy’s Law into the constitution.”
However, Mickelson says in the future he’d like to see measures like this approved as state law, rather than a constitutional amendment.
“And when these things come up, that’s why you got a legislature,” Mickelson says. “Let them go sort this out and have people come testify and let them see if there’s not an appropriate adjustment for a situation like this.”
Officials with a local civil rights and liberties group agree voters should be careful about when they are willing to change the state constitution at the ballot box.
“When an officer uses potentially deadly force and discharges their weapon, that is an instance where the most transparency possible should be used,” says Libby Skarin, policy director for the ACLU in South Dakota.
“That’s really important because they’re a government officer, because they are tax payer funded, and also to maintain the public trust in law enforcement, right?" Skarin adds. "If the public thinks Marsy’s Law is being used as an end run around government transparency—and I think that’s a legitimate argument to be made here—that’s really troubling and that makes us, the public, think that the government has something to hide.”
Skarin says because of that conflict, there are times when Marsy’s Law isn’t working the way voters were told it would.
Paul Cassell is a law professor at the University of Utah and an unpaid consultant for the Marsy’s Law group. He’s been involved with crime victim’s rights for decades. Cassell says crime victims have a different right to privacy than law enforcement officers do.
“However, the situation is different with respect to law enforcement officers. At least with respect to the name of a law enforcement officer,” Cassell says. “I believe a law enforcement officer waives their right to privacy, including their right to confidentiality under Marsy’s Law by accepting a public position and public compensation.”
Attorney General Marty Jackley says that’s not the case in South Dakota. He, along with state and local law enforcement investigate officer involved shootings. They release a written report within 30 days of a shooting. Jackley says he tries to release as much information about those events as the law allows. He says an officer invoking Marsy’s Law is consistent with the constitution.
“I think where the debate or conversation goes from here is in the event there are more changes that are needed to Marsy’s Law—and we’ve already seen that happen at the ballot box, we’ve seen that happen with assistance from the legislature—I think it needs to be looked at," Jackley says. "Are there those situations where the right of privacy comes up against the public’s right to know. Where are those lines to be drawn?”
Jackley says any future revisions to Marsy’s Law are not for his office to make. And, based on the language, he says it may not even fall to the legislature. That means any change would likely require another constitutional amendment.
