Free Speech

No Routine Sealing of Names of Officers Who Arrested Molotov-Cocktail-Thrower

"Absent some concrete threat to the officers, which has not been suggested here, there is no principled way to discern why this case would justify redactions while others would not."

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From Magistrate Judge Stephen C. Dries in yesterday's U.S. v. Smith (E.D. Wis.), denying (correctly, I think) the government's motion to seal:

On June 4, 2020, a criminal complaint charged Tyshaun Smith with attempted arson and possession of a destructive device, as defined in 28 U.S.C. § 5845(f), in connection with his alleged throwing of a "Molotov cocktail" into a place of business. On June 5, the United States filed a motion seeking an order to seal the criminal complaint for thirty days. Now, in its place, the government proposes filing a public version of the complaint that redacts the names of the officers who arrested Smith, as well as the ATF agent who submitted the affidavit in support of the complaint. The impetus of the motion is the government's belief that current circumstances in the community could pose a danger to the officers should their names become public.

The public's nearly unfettered right to access court records is well established. Union Oil Co. of California v. Leavell (7th Cir. 2000) ("[T]he tradition that litigation is open to the public is very long standing."). This right "serves to promote trustworthiness of the judicial process, to curb judicial abuses, and to provide the public with a more complete understanding of the judicial system, including a better perception of fairness." Doe v. Pub. Citizen (4th Cir. 2014). For criminal cases, public access "plays a particularly significant role in the functioning of the judicial process" and inures to the benefit of "both the defendant and … society as a whole." Globe Newspaper Co. v. Superior Court (1982).

The United States recognizes this right, but notes that "the first amendment right of public access is not absolute; it is a qualified right." … [But] the government has not met its burden to justify the redactions it seeks.

There is no doubt that protecting the safety of law enforcement officers is a paramount government interest, yet the government has not articulated any particularized or concrete safety concern that is manifest in this case. In a time of unrest throughout the nation, law enforcement officers are arresting hundreds of individuals every day for offenses similar to those charged here.

Given the perceived antipathy of some protestors to law enforcement officers generally, it could be said with respect to almost every one of these arrests that revealing the identity of the arresting officers could pose a risk of backlash. There is no indication, however, that other courts across the country are redacting officers' identities or that the situation is so dire that traditional principles allowing for full transparency are being abrogated as a matter of course. Absent some concrete threat to the officers, which has not been suggested here, there is no principled way to discern why this case would justify redactions while others would not.

Finally, it is conceivable that redaction could backfire. Transparency is the cornerstone of public confidence in the judicial process. Shielding the identity of law enforcement officers responsible for Smith's arrest could further undermine the public's trust in the criminal justice system generally and engender ill will towards the officers specifically.

Here's the government's press release about the underlying prosecution:

According to the criminal complaint, on May 31, 2020, at approximately 11:03 p.m., Milwaukee Police Department (MPD) officers responded to a 911 call regarding an entry into the Boost Mobile store.  When officers arrived, Tyshaun Smith and two other individuals were standing outside of the store next to a broken window.  Smith was holding what appeared to be a burning Molotov cocktail.  An officer observed Smith throw the Molotov cocktail into the store.  Smith and the others then ran from the scene.  However, Smith fell and was arrested.  When arrested, Smith's sweatshirt and gloves were coated in gasoline, and he was in possession of a loaded 9 mm firearm.  Police were able to extinguish the burning Molotov cocktail in the store and recover the device.

NEXT: Does City's Painting of Messages on City Streets Require It to Give Equal Access to Other Messages?

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  1. Professor Volokh

    I assume in a situation like this, if the judge did allow the government to file a public version which had the officers’ names redacted, someone who knew those names would be free to publicize them? (Perhaps not a lawyer involved with the case?)

    Would a site like CourtListener, if it knew the redacted names, be free to edit the version of the filing which it makes available to the public to effectively un-redact the names (perhaps with an indication that the names were redacted in the original)?

    1. You assume correctly, and yes — though CourtListener, I’m sure, is big on presenting case documents precisely as they appear in the public court file.

      1. Interesting.

        What about a Massachusetts law making it a criminal offense for one college student to name the fellow student who had falsely alleged having been raped in an incident that literately shut down the university?

        1. That law would be pretty clearly unconstitutional, which is probably a part of why there is no such law in Massachusetts.

  2. OT, but someone retweeted a Tweet about this incident that referred to it as a “Mazel Tov” cocktail.

    1. That should not have made me smile and laugh . . . but it did.

      1. Intentional, typo, auto-correct, or anti-antisemitism?
        We will never know – – – – – – –

        1. Bad speech-to-text automatic closed caption.

      2. Innocent humor and wordplay (and it is precisely the incongruity between a joyous “Mazel Tov!” and the un-joyous violence of bombing that makes it funny) are always good things to indulge in. And I think this case, at least, is perfectly reasonably separable from the alleged violent event underlying it, so we need not abstain from recognizing humor just because the underlying facts are bad.

  3. Probably correct, but I think if the government wanted to come up with something more than boilerplate it wouldn’t take too much effort. Just do a few hashtag searches on Twitter and you can find pretty much Hit Lists of cops floating around (how these don’t violate TOS are beyond me). Given the social climate I think there is more then a generalized fear that naming an officer is going to put their safety in jeopardy.

    1. “(how these don’t violate TOS are beyond me)”

      They violate the public TOS, but the private TOS, (The ones that are actually enforced.) read simply, “No enemies to the left.”

  4. 1. Seems like the legally-correct result, although I have sympathy for the officers’ position, given the incendiary (heh) times.

    2. (Off-point from the legal gravamen of the OP) I hope that, IF actually guilty of this, the piece-of-crap defendant gets 30 years.

  5. Speaking of concrete

    wwwdottwitterdotcom(slash)nypost(slash)status(slash)1270119355217477635(slash)photo(slash)1

    PS: Blame Reasons dumb commenting system.

        1. You can post a single link.

        2. Also: Hahaha, those are concrete samples, kept not in Ice Cream containers, but rather coffee containers.

          You can tell they’re samples because they have the mix written in marker on the side.

          LOL.

          1. So its impossible to use a concrete sample as a weapon?

            1. No new goal posts. The tweet is: ‘NYPD finds concrete disguised as ice cream at George Floyd protests’

              That is extremely, desperately, laughably wrong. And you posted it unironically. You should maybe think about that.

              Because sure, lots of things can be used as weapons. But finding a heavy thing on the ground in NYC is not a sign of anything nefarious.

  6. “The United States recognizes this right, but notes that ‘the first amendment right of public access is not absolute; it is a qualified right.'”

    Prof. Volokh, what is the definition of a “qualified right?”

    Just a nice way of saying penumbra since public access is not specifically defined in 1A?

    1. “Prof. Volokh, what is the definition of a “qualified right?””

      I’ll take a stab at it.

      A qualified right is a right that the government doesn’t like and wants to ignore for no other reason than ignoring it is more convenient for the government.

      1. A qualified right is a right that is not absolute. It could be enumerated or unenumerated; it could be quite forceful in many contexts (as it the First Amendment right of access). It’s just a right that can be overcome in certain situations by certain other factors, e.g., “the qualified right to be represented by counsel of one’s choice” under the Sixth Amendment, which to some extent “is qualified by the fact that the attorney has represented other defendants charged in the same criminal conspiracy” and thus has a serious potential conflict of interest.

        One sees this a lot in non-constitutional cases — common-law privileges against libel liability are often broken up into “qualified privileges” (which can be rebutted by showing of knowledge of falsehood, or intent to harm, or other factors that may vary by privilege) and “absolute privileges.” Likewise, immunities against liability under 42 USC 1983 are famously divided into “qualified immunity,” which can be rebutted by a showing that the defendant’s behavior violated clearly established law, and “absolute immunity” (such as that enjoyed by legislators, judges, prosecutors, and the like), which is more categorical.

        1. “A qualified right is a right that is not absolute.”

          But no right is absolute, so that makes no sense.

          1. It makes sense as a rhetorical trick, at least. 🙂 (Rhetorical trick for the original namers, that is — I think Eugene is speaking descriptively, not trying to play word games.)

            While most rights are indeed qualified, there are at least a few that are absolute — absolute immunity for prosecutors acting in the scope of their duties comes to mind. But of course maybe it often depends how you define what the right actually is — it’s easy to say a right is absolute if you exclude all the hard cases from it from the get-go.

            1. “there are at least a few that are absolute — absolute immunity for prosecutors acting in the scope of their duties comes to mind. ”

              1. That is NOT a right.
              2. “acting in the scope of their duties” is a qualifier, so it is qualified.

  7. The request was for a 30-day embargo on names. Given the utter lawlessness in much of the country, I’m sure that a judicious sampling of CNN/Fox news stories would be utterly convincing to any mythical “reasonable person”.

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