When the state Attorney General's Office released a detailed report last week after a Highway Patrol trooper shot a man twice in Union County on Sept. 16, one key fact was missing — the name of the trooper.
In fact, no details were provided about the trooper's identity, not the gender, age or years of service.
When asked to provide this information, spokesperson Sara Rabern said she could not share it since the trooper invoked Marsy's Law, an amendment to the state constitution intended to protect the rights of crime victims. The amendment was approved by voters in 2016.
"Due to officer safety and the subject being out on bond, and that the trooper has invoked the privacy provisions of Marsy's Law, the Attorney General’s Office will not be releasing the name," Rabern wrote in an email.
According to Marsy's Law, a victim is "a person against whom a crime or delinquent act is committed." Someone becomes a victim once a crime is committed against them, not only if formal criminal charges are filed against the alleged perpetrator, Marty Jackley, South Dakota attorney general, said.
For example, he said, if someone was robbed and called the police, they would be a victim and could invoke Marsy's Law even if the robber is never found or prosecuted.
Jackley said the officer was attacked by the man before shooting him, which made the trooper a victim.
"There was a legitimate officer safety concern. So based on that concern, the trooper and the patrol exercised that right” to invoke Marsy's Law, he said.
According to the investigative report, the trooper conducted a traffic stop on 21-year-old Kuong Gatluak of Vermillion on Interstate 29 after reports that he made statements about harming himself and fled from a police vehicle. During the traffic stop, Gatluak threw what appears to be a flat, empty beer can at the trooper, according to the report and a photo of the item. He then immediately tackled the trooper and tried to steal the officer's gun, the report says. While Gatluak was still on top of the trooper, the trooper was able to aim the gun at Gatluak and fire twice, hitting him in the left shoulder and bicep.
After backup arrived, the trooper and Gatluak were taken to separate hospitals, according to the affidavit in support of the arrest warrant for Gatluak, who is charged with two counts of felony aggravated assault for attacking the trooper, court records show. He is now out of custody after posting a $10,000 bond.
The investigative report found the trooper was justified in shooting Gatluak as he "had the means and opportunity to cause serious bodily injury and was a clear and present danger to the trooper."
Gatluak's lawyer did not return a request for comment from the Journal.
Jackley said two of the 19 crime victim rights in Marsy's law prevent his office from releasing information about the officer. One of the rights is the right to privacy. The other is the right to prevent disclosing information that could be used to locate or harass the victim.
He said the trooper is a victim and invoked Marsy's Law, which means his office must follow the law's guidelines. No exception for law enforcement officers exists in the law, the attorney general added.
"We took a look at the constitutional amendment, that it doesn’t have an exception for any category," Jackley said.
He did acknowledge that the trooper's identity is in the public record due to the criminal case against Gatluak.
Both Jackley and David Bordewyk, director of the South Dakota News Association (SDNA), said they believe this is the first time a law enforcement officer has invoked Marsy's Law in South Dakota after shooting someone.
However, the law was invoked by most of the eight North Dakota police officers who shot someone between Dec. 8, 2016 (when the law went into effect) and July 22, 2018, according to an investigation by the Grand Forks Herald. Invoking the law withheld officers' names until investigations were complete.
North Dakota state attorneys' interpretation of the law varies, the article says. While some officers have had their names shielded, a state's attorney released the names of two Grand Forks police officers who were made aware of their rights under Marsy's Law after they fatally shot someone, saying their names aren't protected under the law.
Names were still withheld after the North Dakota attorney general released guidelines in January 2017 that said, "There is nothing under Marsy's Law that protects the name of a victim or the victim's family."
Bordewyk, who advocates for government transparency on behalf of the SDNA, said the decision to not release the South Dakota trooper's name is "an unfortunate consequence of Marsy's Law in our state."
"It's unfortunate that the AG's Office won't release that information about a public officer," he said, adding that the public has a right to know.
Bordewyk also said that not releasing this information could backfire by leading to rumors and misinformation.
"Lacking facts, lacking basic information, the public is left to wonder," he said.
Jackley declined to give his opinion on the fact that Marsy's Law can result in law enforcement officers having their names hidden from the public after they shoot someone. He said his job is to enforce the law, and his office can't change the constitution.
He said if the public wants to create an exception for police officers who are victims, or any other changes to Marsy's Law, it's up to the public to propose an amendment through a ballot initiative or legislation.
“If they need to have additional changes to it, they have the ability to do that," Jackley said.
He said he's aware of police officers having their names protected due to Marsy's Law in other states, and said it could happen again in South Dakota.
— Contact Arielle Zionts at firstname.lastname@example.org.