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Jackley Clarifies Crime Victim Amendment, Says Victims Must Invoke Rights to Withhold Info

Attorney General Marty Jackley has issued an official opinion to clear up the ambiguity of Amendment S (now South Dakota Constitution Article 6 Section 29), the new crime victims bill of rights brought to us by his gubernatorial campaign manager, Jason Glodt. A.G. Jackley clears law enforcement officials to release motor vehicle crash reports and include street addresses and names of victims in crime reports and radio communications.

A.G. Jackley grants that his campaign minion’s amendment is “ambiguous… requiring constitutional interpretation.” He gets local law enforcement off the hook by affirming Glodt’s assertion that these new crime victims rights are “opt-in.” A.G. Jackley likens these rights to the Fifth Amendment right to remain silent: cops can badger a suspect until the suspect explicitly pleads the Fifth. A.G. Jackley also points to the Sixth Amendment right to “compulsory process”: accused citizens can compel witnesses to testify for them, but they have to invoke that right by “complying with the established procedure or obtaining a subpoena.” By analogy, A.G. Jackley contends that until crime victims assert their rights, police and prosecutors have no obligation to respect those rights.

The official opinion says it is “absurd to conclude the Amendment automatically prohibits releasing public information.” A.G. Jackley says insurers, first responders, and the general public need information about crime to help victims, protect themselves, and “instill[] a sense of safety and security in their communities.” A.G. Jackley asserts a “presumption of openness” in state law and the First Amendment; however, Jackley does not demonstrate how state statute overrides the new constitutional rights, and he fails to note that First Amendment free speech rights to share “non-confidential information” apply to citizens but not to police and prosecutors acting their official capacities as arms of the state.

I must thus conclude that if I call in to report that I’ve been burgled or beaten, I can say, “By the way, I invoke my Article 6 Section 29 Clause 5 right to ‘prevent disclosure of information or records that could be used to locate or harass the victim or the victim’s family'” and thus stop the police from revealing my name, address, or other identifying information in their reports and communications.

The Attorney General’s opinion has the force of law until a court rules otherwise. State’s attorneys and law enforcement officials who follow the opinion have qualified immunity from lawsuits that may arise from enforcement (or lack thereof) of Amendment S.

A.G. Jackley issued this opinion in response to a request from Beadle County state’s attorney Michael Moore, one of the only state’s attorneys in South Dakota to campaign for Amendment S. Incoming Brown County state’s attorney Chris White made clear during a conference call with the Attorney General Monday that he doesn’t like Amendment S or the A.G’s opinion:

Brown County State’s Attorney-elect Chris White said he does not agree with the opinion, but that he appreciates that law enforcers have immunity.

The biggest problem that White has is that the law was written in a “sloppy fashion,” he said during the call [Kathy Jensen, “Jackley: Marsy’s Law Should Not Restrict Flow of Information,” Aberdeen American News, 2016.12.06].

The Attorney General’s official opinion fills in some gaps in Glodt’s sloppy language. Now let’s see how many crime victims assert their new rights.

3 Comments

  1. Porter Lansing 2016-12-06 11:33

    Boy, I would. Say for instance, a prominent Sioux Falls businessman’s pitbulls attack and inflict a wound on my person. I would certainly invoke my right to privacy, fearing that angry protesters for pitbull rights would picket my home, harass my school age children and bring unwanted recognition to the pending lawsuit.

  2. moses6 2016-12-06 13:57

    Porter you think this guy will prosecute. or go which ever way the wind blows.

  3. Porter Lansing 2016-12-06 14:04

    What do you think, Moses? I don’t know.

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