DEVILS LAKE-The name of a Devils Lake police officer involved in a shooting two weeks ago cannot be released because of Marsy's Law, Police Chief Joe Knowski said.
Ramsey County State's Attorney Kari Agotness said she doesn't plan to release the name of the officer who fatally shot Daniel A. Fuller on July 5 until the North Dakota Bureau of Criminal Investigation completes its probe into the shooting.
"To tell you the truth, I have no issues with releasing the officer's name," Knowski said, but he said he has been advised that Marsy's Law keeps the name confidential. "I'm not trying to stop anything."
Marsy's Law has become a noticeable reason for keeping the names of officers involved in shootings confidential until the investigation is complete. According to a Herald analysis of news articles, North Dakota has had at least eight officer-involved shootings since Marsy's Law went into effect Dec. 8, 2016, a month after 62 percent of North Dakota's voters approved the constitutional measure. Almost all of the officers in those cases invoked their rights based on the new law, the Herald confirmed through interviews with law enforcement agencies and state's attorneys involved in those cases.
The interpretation of the law varies from county to county. Just days after the Devils Lake incident, two Grand Forks police fatally shot 41-year-old John Francis Murphy III on July 8. The officers' names were released two days later.
Grand Forks officers were given cards advising them on Marsy's Law, but Grand Forks County State's Attorney David Jones determined names were not protected under the constitutional measure, Grand Forks Police Lt. Bill Macki said.
Law enforcement agencies involved in shootings have relied on state's attorneys for legal advice when it comes to releasing information to the public. Agotness said Marsy's Law has brought attention to victims' needs, but there is no legislative history to help with certain interpretations.
"I do see some tension in Marsy's law between the rights of victims and the due process rights of defendants," she wrote in an email. "It will take some time before those tensions are better understood."
Because each state's attorney's office is its own entity, interpretations of the law can vary, said Jack McDonald, a Bismarck attorney who represents the North Dakota Newspaper Association. Withholding names of officers keeps the public from learning the whole story, he said.
"The biggest frustration would be that it has been extended to cover too many people," he said of Marsy's Law. "It's been extended to cover situations which I don't think were ever intended to be covered in the first place."
It's unclear exactly how many times officers were involved in shootings or how many of those have invoked Marsy's law.
"This office does not have jurisdiction or authority over local law enforcement agencies," Liz Brocker, a spokeswoman for the Attorney General's Office, wrote in an email. "A local law enforcement agency is not required to notify us of a use of force incident or ask the BCI to assist if there is one. Therefore, we do not have information for any (officer-involved shootings) other than the ones where we have been asked to assist."
The BCI, which is overseen by the Attorney General's Office, is the go-to agency for investigating officer-involved shootings in North Dakota. The BCI investigated 13 use-of-force cases involving officers between 2015 and 2017, according to the latest attorney general's biennial report.
Brocker's office doesn't track how many times officers invoke Marsy's Law, and it's up to the prosecuting attorney's office to track that, she said.
The law allows victims to invoke a set of rights, including keeping "information or records that could be used to locate or harass a victim or the victim's family" confidential. Those rights have extended to officers involved in shootings, and agents from the BCI have informed those officers of Marsy's Law, according to documents obtained by the Herald.
But not all officers in shootings are allowed to invoke Marsy's Law. Fargo Police Officer Jacob Rued was not listed as a victim when he shot Orlando Estrada in March, Officer Jessica Schindeldecker said. The knife-wielding suspect survived the shooting, and Rued was cleared of any wrongdoing.
One of the first tests of Marsy's Law in relation to officer-involved shootings came in January 2017, when Rolette County Sheriff's Deputy Colt Allery, 29, was killed in a shootout involving 28-year-old Melvin Delong of Belcourt, N.D. Delong was fatally shot by other officers.
Allery's name was released almost immediately after the shooting, but Delong's and surviving officers' names were withheld by the Rolette County State's Attorney's Office, which cited Marsy's Law. The names eventually were released after the BCI completed its report in late April 2017, though Rolette County State's Attorney Ryan Thompson said in early May he considered the case open.
The Herald left multiple messages with Thompson's office this week asking if he still considered the case open, but he did not respond by press time.
Attorney General Wayne Stenehjem released a set of guidelines in January 2017, stating, "There is nothing under Marsy's Law that protects the name of a victim or the victim's family."
The law still causes confusion,said Bismarck Deputy Police Chief Randy Ziegler, who called the law "convoluted."
"To be totally honest with you, I'm not even sure half the time what it does even when you invoke it," he said, adding few people have invoked the law.
Part of that might come from the fact that Marsy's Law was an initiated measure, Stutsman County State's Attorney Fritz Fremgen said. Most legislation goes through weeks of vetting in the state Legislature, which gathers input from the public and officials.
"Initiated measures don't," he wrote in an email, adding "what those rights are, most don't know."
Bismarck Police Officer Justin Antonovich invoked Marsy's Law when he shot Donald Miller in October, a shooting that was found to be justified. Though the Police Department didn't release his name immediately because of the law, the Bismarck Tribune identified the officer by looking through open records.
The law doesn't protect names from being released, Ziegler agreed, but he said officers deserve the same rights as anyone else, he added.
"We don't typically release names until an investigation is released on any type of case," he said. "Our thought process is, why would we want to change it for our officers?"
Law enforcement officers should enjoy the same constitutional rights as anyone else, said Henry Goodwin, a Marsy's Law for All spokesperson.
"Police officers can be victims like anybody else," he said.
Officers can become victims in some cases, but they handle dangerous situations everyday as part of their job, McDonald said.
"I still don't think the true intent of Marsy's Law is to cover officials," he said. "I think Marsy's Law is to cover people who, because of no fault of their own, became victims of a crime."
The Grand Forks Police Department has had a "longstanding tradition" of being open with media outlets, Macki said. Schindeldecker agreed, saying the department wants to be transparent with the public so residents trust them.
"There's information that we absolutely can't release because it could be detrimental to the investigation, but if there's information that helps illustrate what has happened or is of significant public concern, we certainly want to get out as much information as possible," Macki said.