The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I wrote about the case (in which news outlets, the defendants, and I are opposing pseudonymity) a few weeks ago here. Yesterday, WKRC (James Pilcher) wrote about the latest hearing, in which Judge Megan Shanahan has ruled that the case can continue to proceed pseudonymously:
Shanahan said the officer faces danger in the current climate for the reason in keeping his name out of the court record. She listed off several examples of other attacks on police nationally.
"Must we wait until this officer's wife is stabbed in the eye with an ice pick on her doorstep before we find real-world evidence [of malice or threat], which just happened a few states away?" Shanahan said as she issued her ruling….
[The officer's lawyers] argued the officer had been threatened online, including threats to post his home address.
I appreciate the judge's concern about the officer's possible safety, but her approach is not consistent with the general American rule regarding openness of court records: Under the "officer faces danger in the current climate" theory, essentially any lawsuit against or by police officers—or other controversial public officials—would be pseudonymous. For better or worse (I think for better), that is not the way our system handles such matters: Knowing the identities of the parties, especially public officials, are involved in legal controversies is important to allowing the public to monitor what courts are doing:
Judicial proceedings are supposed to be open, as [the precedents] make clear, in order to enable the proceedings to be monitored by the public. The concealment of a party's name impedes public access to the facts of the case, which include the parties' identity.
To be sure, pseudonymity is sometimes allowed, but it's not enough to cite the regrettably everpresent risk that some people will be upset at a public official involved in the case.
The judge has agreed with much of a different part of our request, which is to unseal the police officer's affidavit; more details on that should emerge Monday. Many thanks to my pro bono lawyer Jeffrey Nye (Stagnaro, Saba & Patterson) for all his work on the case, including doing much of the pro-unsealing oral argument today.