A Right to Reasonable Protection Under Marsy’s Laws

Evan Blanchard-Wu1Evan Blanchard-Wu is a J.D. Candidate at the University of Chicago Law School, Class of 2024. He thanks Cheridan Christnacht, Matthew Makowski, Claire Rice, Virginia Robinson, and the University of Chicago Law Review Online team.

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If you are a crime victim in Ohio, you have the rights “to be treated with fairness and respect,” to “a prompt conclusion” of your case, and “to be heard in any public proceeding . . . in which a right of the victim is implicated.” These and other victims’ rights were added by ballot initiative to the Ohio Constitution. Similar ballot initiatives have passed in other states as well, and the set of enshrined rights is known colloquially as “Marsy’s Law.”

Last year, the Ohio Supreme Court heard a case to decide whether Ohio’s Marsy’s Law granted a victim of domestic violence the right to object to the reinstatement of her abuser’s firearm rights after he had completed his sentence. Domestic violence perpetrators often lose their rights to own and carry a firearm (called a “firearm disability”), either indefinitely or until they satisfy certain conditions. The court’s decision, which allowed the victim to object and ultimately denied the petitioner’s application to have his firearm rights reinstated, raises important questions about the scope of victims’ rights under Marsy’s Laws and the tension between these rights and other constitutionally protected rights. After outlining the history of Marsy’s Laws, this Essay explores the implications of one of the rights in Ohio’s and other states’ versions of Marsy’s Law: the right “to reasonable protection from the accused.”

I.  The Origins of Marsy’s Laws

Marsy’s Laws are named after Marsy Nicholas, who was stalked and murdered in California by her ex-boyfriend in 1983. Shortly afterward, her family was unexpectedly confronted by her killer after he had been released on bail with no notification to Marsy’s family. Since then, Marsy’s brother, Henry Nicholas, has spearheaded and funded efforts to pass the eponymous victims’ rights laws across the country.

California was the first state to enact a Marsy’s Law by ballot initiative in 2008. Since then, Florida, Georgia, Illinois, Kentucky, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, South Dakota, and Wisconsin have each enacted versions of Marsy’s Law. Two other states, Montana and Pennsylvania, also passed Marsy’s Laws, but their state courts have since overturned them for procedural reasons related to how the laws were passed. Efforts to pass Marsy’s Laws are underway in several other states, including Idaho, Maine, and New Hampshire.

II.  The Contents of Marsy’s Laws

Marsy’s Laws do not consist of a single set of provisions that a state adopts wholesale; rather, each state that passes a Marsy’s Law enacts slightly different constitutional provisions. Despite this variation, most versions of the law contain a list of ten to fifteen specific rights, provisions concerning the enforcement of those rights, and a definition of the victims who can avail themselves of the rights. Victims’ rights commonly included across every state that has adopted a Marsy’s Law include the right to be treated with dignity and respect, the right to be notified of their rights, the right to be present and heard at proceedings related to the crime to which they were a victim, and the right to a timely resolution of the case. Depending on the state, Marsy’s Laws may also include the right to reasonable protection from the accused, the right to reasonable notice of the escape or release of the accused, the right to refuse interview, deposition, or discovery requests from the accused or the accused’s lawyer, and the right to confer with the government’s attorney.

Marsy’s Laws sometimes provide rights to a broader category of people than just direct victims of crimes. That is because they usually define a victim as any “person against whom the criminal offense or delinquent act is committed or who is directly and proximately harmed by the commission of the offense or act.” This definition means that family members of the direct victims of grievous crimes like murder are often covered.

III.  Challenges to Marsy’s Laws

Marsy’s Laws sometimes face facial challenges. No sooner had a Marsy’s Law been enacted in California than legal challenges arose. Among the issues raised was that certain provisions conflicted directly with procedural rights of parolees that had been established by prior federal court orders, including the rights to counsel and to timely hearings. Another alleged problem with California’s Marsy’s Law was that it would likely increase the state’s prison population by increasing pressure on prosecutors to seek longer sentences and on judges to deliver longer sentences or to dismiss motions to terminate sentences early. While sentencing decisions remained fully in the hands of judges, the new law allowed victims to advocate for long sentences at every stage of criminal proceedings. Longer sentences would frustrate a 2011 Supreme Court order requiring that California reduce its prison population by 31%. Finally, although the California Supreme Court had held in 2011 that Marsy’s Law did not violate the ex post facto clauses of the U.S. or California Constitutions when it indirectly increased the severity of a sentence after the crime had been committed, a concurring justice cautioned that future factual developments regarding Marsy’s Law’s actual implementation could change the court’s analysis.

Other states’ courts have also considered challenges to specific implementations of Marsy’s Laws. In Ohio, a defendant protested when an alleged sexual assault victim was permitted to sit at the prosecutor’s table during the trial under the right to be present during trial conferred by Ohio’s Marsy’s Law. That law uncontestably gives an alleged victim the right to be present at trial, but the defense argued that this right does not permit the victim to sit directly next to the prosecutor, which could have prejudicial effects. The Supreme Court of Ohio held that such a seating arrangement violated the defendant’s right to a fair trial and therefore was not allowed under its Marsy’s Law.

Most notably, as discussed above, the Ohio Supreme Court held in State ex rel. Suwalski v. Peeler (2021) that, under Ohio’s Marsy’s Law, a domestic violence victim may object to the reinstatement of her abuser’s firearm rights even after the trial had ended, the couple had divorced, the abuser had served his full sentence, and a judge had granted the abuser’s application to reinstate his firearm rights. The petitioner (the abuser) argued that Ohio’s Marsy’s Law does not permit such an objection by the victim for multiple reasons. First, the relevant language in the law provides a right “to reasonable protection from the accused,” and an offender who has been convicted and served his sentence is no longer “the accused.” Second, the proceedings to decide whether to reinstate firearm rights were about the sentence, not “the criminal offense.” The court rejected both arguments and held that the perpetrator of a crime remains “the accused” under Ohio’s Marsy’s Law, even after his sentence is complete. Moreover, the victim’s right to protection from the accused extends at least as far as giving the victim the right to argue before a judge whether the abuser’s firearm disability should be removed.

IV.  A Right to Reasonable Protection from the Accused

The Suwalski case is precedential in Ohio only, but most states (e.g., Illinois, Kentucky, Nevada) that have adopted Marsy’s Laws have included provisions that provide a right to reasonable protection from the accused. The most common language in these provisions is very open-ended. Ohio’s constitutional language, which grants victims the right “to reasonable protection from the accused or any person acting on behalf of the accused,” is typical.

By contrast, Florida’s Constitution defines the right to reasonable protection as “the right, within the judicial process, to be reasonably protected from the accused” (emphasis added). It further clarifies that the law is not “intended to create a special relationship between the crime victim and any law enforcement agency.” It would seem, then, that a victim’s right to reasonable protection in Florida is a procedural right that begins and ends at the courthouse doors. Oklahoma narrows the right to protection still further: victims have the right, “whenever possible, [to] a secure waiting area during court proceedings that does not require close proximity to defendants.” Both Florida’s and Oklahoma’s laws avoid the Suwalski dissent’s admonishment that the right to “reasonable protection” under Marsy’s Law should not be understood as creating “a freestanding right to safety.” Other states, such as Georgia and North Carolina, have no such “right to protection” in their versions of Marsy’s Law.

Of the states that have open-ended “reasonable protection” provisions in their laws, Ohio is the only state where the highest court has addressed what constitutes “reasonable protection.” At least in the domestic violence context, Marsy’s Law allows a victim in Ohio to object to her abuser’s petition to have his Second Amendment rights reinstated even after the perpetrator has completed his judicially imposed sentence and after a judge has granted his application to reinstate his firearm rights. The court relied on the plain meaning of the relevant provision, which states that victims have the right to be heard in any proceeding “involving the criminal offense.” The court reasoned that, because the application to relieve the firearm disability required the applicant to recite the crime for which the disability was imposed, and because the disability would not have been imposed but for the crime, a final proceeding to reinstate firearm rights necessarily “involved” the criminal offense.

Crucially, the court in Suwalski did not elaborate on why the victim’s right to “reasonable protection from the accused” barred the reinstatement of the defendant’s firearm rights. Intuitively, a former abuser’s possession of a firearm seems to inherently increase a victim’s risk of being harmed again, and therefore, the need for protection would follow naturally. However, it is not clear whether this is always the case between victims and abusers, whether the nature of their past and present relationships should matter (the parties in Suwalski were married at the time of the abuse and divorced by the time Marsy’s Law was invoked), or whether other factors might affect the analysis. For example, had the abuser moved across the country to live in the woods and hunt extensively, would the victim’s need for protection still bar reinstatement? Should it matter whether the parties maintain legal ties or common obligations like children? Suwalski provided little clarity on such questions.

The dissent in Suwalski observed that Marsy’s Law does not grant “a freestanding right to safety.” Moreover, it noted that even the “reasonable protection” provision applies only to protection from “the accused,” and a perpetrator who has been charged, convicted, and sentenced is no longer “accused” in a literal sense. The majority rejected this argument for a more temporally capacious understanding of the term “accused,” but it did not clarify whether there might still be some temporal limits to labelling a convicted domestic abuser “the accused.” Moreover, neither the majority nor the dissent attempted to delineate what specific protections Marsy’s Law provides, and from what types of threats.

V.  Constitutional Clash: Implications for Marsy’s Laws Post-Bruen

By defining “the accused” to include an offender who had served his sentence and had been granted an application to restore his firearm rights, and by failing to define or limit the vague phrase “reasonable protection,” the Ohio Supreme Court left open a potential clash of constitutional rights. Whether a victim’s right to “reasonable protection” in Ohio and other states with similarly worded laws could withstand close constitutional analysis is uncertain, particularly under the U.S. Supreme Court’s recent constitutional jurisprudence. The rights conferred by Marsy’s Laws allow someone other than the state or a judge (i.e., the victim) to repeatedly argue that an individual should not be granted full Second Amendment rights. Prior to the enactment of Ohio’s Marsy’s Law, victims were permitted to attend court proceedings and even provide victim impact statements at sentencing. Now—at least in Ohio—victims can also file several petitions throughout various court proceedings before, during, and after trial and sentencing to try to convince a judge that another citizen does not deserve access to a federal constitutional right. Moreover, this power has been granted to victims through open-ended and ill-defined language, as described above.

Less than a year after the Ohio Supreme Court decided Suwalski, the U.S. Supreme Court decided New York State Rifle & Pistol Association v. Bruen (2022), a landmark Second Amendment case invalidating gun control laws that required individuals to provide a reason (a “proper cause”) why they should be allowed to carry a handgun. The implications of Bruen have yet to be worked out in the courts, but courts may find that state laws allowing non-parties to oppose an individual’s application to regain their firearm rights conflicts with the Second Amendment under Bruen.

A key aspect of Bruen that could affect an analysis of the legality of Marsy’s Laws in Ohio and other states that adopt Suwalski is the Court’s “history and tradition” test. Under this test, courts must consider whether a limitation on the right to possess a firearm “is consistent with the Nation’s historical tradition of firearm regulation.” A detailed historical inquiry could shed light on whether domestic abusers were banned from possessing firearms near the time of the nation’s founding or whether such restrictions emerged later (such as in 1968, the year the current federal firearm disability laws were promulgated). Crime victims were involved in prosecutions near the time of the founding, but whether they had a say in restricting domestic abusers’ firearm rights may be less clear. If there was no such practice until recent decades, provisions in Marsy’s Laws that allow victims to intervene may be found unconstitutional or may be interpreted narrowly to avoid clashing with Second Amendment rights.

Moreover, the Court has yet to clarify the level of generality with which to apply the history and tradition test. Is it sufficient that victims had some role to play in prosecutions, or must they have been afforded the right to oppose sentencing-related decisions? Relatedly, if historical inquiry provides no guidance, are all “new” restrictions on firearm rights automatically unconstitutional? These and other questions remain open in the wake of Bruen and are likely to be worked out gradually as new cases make their way through the courts.

Another potential problem after Bruen is that the right of victims to object during proceedings places a new hurdle in front of convicted abusers seeking to access their Second Amendment rights, even after they have already fulfilled their obligation to society through a judicially imposed sentence. If states cannot impose firearm restrictions on people who cannot articulate a good reason for possessing one, perhaps they cannot allow nonparties to object to firearm reinstatement proceedings.

This potential clash between constitutional rights could be resolved a couple of ways. First, voters could amend Marsy’s Law provisions in states that provide an open-ended right to reasonable protection from the accused. Adopting Florida’s or Oklahoma’s versions of these provisions, for example, would limit victims’ right to protection within the judicial proceedings themselves. It is not obvious that restricting the right to protection in this way would satisfy the Court’s history and tradition test, but a more limited right would be more likely to do so than an open-ended one. It is rare for a ballot-initiated constitutional amendment to be revised later by follow-up initiatives, so this approach seems unlikely to succeed.

Second, courts could clarify the scope of the right to reasonable protection as cases arise in a way that avoids the federal-constitutional issue. This approach would maintain the full scope of broadly worded victims’ rights for an indefinite amount of time, after which the rights may be gradually circumscribed when necessary to comply with the federal constitution. What this approach lacks in clarity and efficiency may be compensated for by maximizing rights and only limiting them where absolutely necessary. But one way or another, new legal challenges to Marsy’s Laws are likely on the horizon.

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Evan Blanchard-Wu is a J.D. Candidate at the University of Chicago Law School, Class of 2024. He thanks Cheridan Christnacht, Matthew Makowski, Claire Rice, Virginia Robinson, and the University of Chicago Law Review Online team.

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