Neither incident resulted in a report of officers being injured and each case went before a grand jury, where charges against both officers were declined.
“If the Ohio General Assembly had intended that peace officers not be afforded the same protections as other victims, then the Ohio General Assembly would have written a different definition,” wrote Kettering Law Director Theodore Hamer in a Dec. 29 letter to an attorney representing the Dayton Daily News seeking release of the records under Ohio public records law.
But the victim rights advocate who fought successfully for the passage of the Marsy’s Law constitutional amendment in 2017 and the state legislator who sponsored the bill allowing for the implementation of Marsy’s Law last year — and who represents Kettering — both said there was never any discussion of classifying as victims police officers who shoot people in the line of duty.
“I think that the stronger, clearer and broadened crime victim rights in our ‘Marsy’s Law’ constitutional amendment, mostly implemented in Ohio Revised Code 2930, generally do not apply here,” said David Voth, the now retired executive director of the nonprofit Crime Victim Services in Allen and Putnam counties.
“I do not recall any conversations of victim rights advocates that the intended privacy protections of victims would apply to law enforcement officers while apprehending suspects.”
Marsy’s Law is named for Marsy Nicholas, a Cincinnati native who was murdered in California and whose 1983 death led multiple states, including Ohio, to adopt stronger protections for crime victims.
Voth was a leader in Ohio’s 1994 and 2017 constitutional amendment campaigns expanding victim rights, and state Rep. Andrea White, R-Kettering, sponsored legislation codifying the 2017 amendment into ORC 2930. Her bill passed unanimously in the state legislature in December 2022 and took effect in April 2023.
“When the question of excluding law enforcement from their constitutional rights as victims first came up in April of 2023 right after the bill became law, I checked with all the key individuals and groups who were involved during the five years it took to draft and pass this bill, including before I joined the legislature in early 2021. Not one of them remembered anyone raising the issue,” White said on Thursday.
She and Voth both said one of the goals of Marsy’s Law was protecting the privacy of crime victims.
“Our Ohio constitution clearly states that ‘all victims are fairly treated with respect for their safety, dignity and privacy’ and are informed of their rights,” White said. “One of the things we heard over and over from virtually everyone involved in creating the Marsy’s Law enactment legislation was that if you don’t have an option for redaction you don’t have the chance for privacy.”
The Kettering police shootings
Kettering officials redacted from city police reports some incident narrative and the names of:
- The officer who shot Antonio M. Rose, 25, in an Aug. 3 incident in the 500 block of Hadley Avenue when police responded to a 911 call that a suicidal man had reportedly attacked his estranged girlfriend and cut his wrists with a knife. Rose later faced multiple charges, most of which were dismissed when he pleaded guilty to misdemeanor domestic violence and no contest to trespass in a habitation and misdemeanor aggravated menacing. On Dec. 27 Rose, of Kettering, was sentenced in Montgomery County Common Pleas Court to up to five years of probation.
- The off-duty officer who shot Enrique Perez Mendez, 25, on Oct. 8 after a chase that began at the Kettering Meijer store parking lot and ended in a neighborhood yard in the 4400 block of Tangent Drive. Perez Mendez, who authorities said was armed with a gun, is accused of robbing a store in Riverside, abducting a man there and forcing him to drive to Meijer to withdraw money from his bank account. Perez Mendez is awaiting trial in Montgomery County Common Pleas Court on two counts of aggravated robbery, one count of kidnapping, one count of improper handling of a firearm in a motor vehicle and a misdemeanor count of criminal damaging.
Large sections of narratives from responding officers are redacted from the Kettering police reports. Among the information blacked out in the reports are details from officers describing what they saw and did before, during and after the shootings.
Credit: Jim Noelker
Credit: Jim Noelker
The Dayton Daily News has for months sought release of the officers’ names and personnel files and unredacted police report narratives, but the city has refused.
In a statement released on Thursday, Hamer said the city must follow state law as written.
“As an Ohio municipality, the city of Kettering must balance its commitment to transparency with the requirements of Ohio law,” Hamer said, citing the law that took effect in April 2023. “These new changes to Marsy’s law require the redaction of a victim’s identifying information from records before release to requesting members of the public, including the media.
“Marsy’s law defines the word ‘victim’ as ‘a person against whom the criminal offense or delinquent act is committed or who is directly or proximately harmed by the commission of the offense or act.’ The definition of ‘victim’ used in the law does not make any exception based on a person’s job as a police officer,” Hamer said. “As a result, if a delinquent act or criminal offense is committed against a police officer, then that police officer is a victim, and their identifying information must be redacted from any records before release in accordance with (Marsy’s Law).”
Court case pending
In Franklin County, the Columbus Dispatch is asking the Ohio Supreme Court to force the Columbus Police Department to release the names of officers involved in deadly shootings.
“When reviewing the conduct of an on-duty law enforcement officer who has used physical force, the right to privacy of their name must quickly yield to the public’s right to know,” said Jessica Ryan, communications director of the advocacy group Marsy’s Law for Ohio.
Late last year the Florida Supreme Court unanimously overturned an effort to use that state’s Marsy’s Law to shield the names of officers involved in fatal shootings, saying it violates the state’s public records law.
“This matter is before the Ohio Supreme Court and it’s going to be up to the justices to determine or clarify what the constitution’s language provides regarding police officers who are victims of crime,” White said.
Depending on the situation, Voth said injured officers could be covered under Marsy’s Law. But at the time of the 2017 campaign supporters didn’t anticipate that an officer who was shot at while pursuing a suspect would be classified as a victim.
“I assumed that every drunk suspect who yelled a threat at an officer would not make that officer a menacing victim who is eligible for victim rights,” Voth said. “There is a reasonableness standard or definition that we expect the courts will develop as to when the ‘crime victim’ line is crossed.”
Staff writer Jen Balduf contributed to this report.
Some of the Marsy’s Law provisions
- Expands a victim’s representative rights, including early and increased access to information on their cases.
- Requires law enforcement to immediately give crime victims a detailed pamphlet on their rights, plus provide a victim’s rights request form within 14 days of starting prosecution.
- Sends victims notice of relevant actions by courts, prosecutors, jails and probation departments.
- Offers free or inexpensive access to copies of many legal documents.
- Lets victims of violent crimes submit statements before authorities consider parole, commutation or a reprieve for an offender.
- Allows testimony by child victims to be taken by deposition, recorded or provided by video.
Source: Ohio’s Legislative Service Commission analysis of ORC 2930
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