Another Pseudonymous / Sealed Police Officer Lawsuit

The case is Doe v. Town of Lisbon (D.N.H.), which stemmed from police officer Doe's being fired—wrongly so, he claims—and being placed on the "Exculpatory Evidence Schedule" (also known in New Hampshire as the "Laurie List"), in which his disciplinary record would be disclosed by prosecutors to defense lawyers whenever he testifies. Such placement naturally damages a person's job prospects as a police officer in any department (at least in New Hampshire but I expect elsewhere as well).

Now I can't speak to whether Doe was indeed wrongly fired, but I don't think that this is a case where pseudonymity is legally authorized; generally speaking, people suing over allegedly wrongful firings have to sue in their own names, even though this might well further publicize what they are claiming to be false allegations against them. (See generally Appendix 7 of my The Law of Pseudonymous Litigation draft.) That requirement of open litigation strikes me as especially apt when important government officials such as police officers are suing. Yet the case was apparently sealed outright in state court; the court granted a motion that argued that,

The Plaintiff is concerned that publicly having his name as plaintiff will undercut any relief obtained in this matter, and will further jeopardize his ability to obtain future employment in the criminal justice and policing field—even if he is fully vindicated in this matter.

When determining whether to seal a case, "the burden of proof rests with the party seeking closure … to demonstrate with specificity that there is some overriding consideration or special circumstance, that is, a sufficiently compelling interest, which outweighs the public's right of access to those records." In re Keene Sentinel, 136 N.H. 121, 128 (1992) (citation omitted).

The plaintiffs' interest in having this lawsuit be filed under seal, while his Constitutional rights are vindicated, is a compelling interest that outweighs the right of the public's right of access to this litigation's docket.

And while there has been no motion to seal the federal court case (the defendants had removed the case from state to federal court), the federal case is apparently being litigated pseudonymously. I may end up moving to intervene and oppose pseudonymity, as I did in the Ohio police officer plaintiff case; in any event, I thought I'd note that such attempts at pseudonymity seem to be happening in various places (see also here).

Comments

[QuantumBoxCat]

I find the logic of a request to proceed pseudonymously in a case such as this to be contradictory. The officer in this case is claiming, general speaking, that he was wronged by the police department. And he is suing to vindicate his rights and therefore demonstrate that the actions taken against him were wrong. But, if one accepts the offers factual allegations as true, then being named in the suit should be assumed to benefit the officer, since it makes his vindication a part of the public record. It is only with his name on the record that he can show everyone that he is, in fact, in the right. The very thing he is seeking (vindication of his claims) necessitates that he be a named party.

For a party to a suit to claim they did nothing wrong, but rather were wronged by the opposing party, would seem to diminish a claim that they need to proceed pseudonymously.

[apedad]

It might be because he's suing his "employer," here the police dept.

And (rightly or wrongly), one could suppose a future police chief could decide not to hire this type of "trouble-maker," regardless if he's vindicated.

[ReaderY]

No, whether or not it’s permissable, proceeding pseudonymously is completely understandable from the officer’s point of view. Most police departments keep disciplinary records secret, except to other departments. So if he wins the lawsuit, nobody will ever know that either the disciplinary action or the lawsuit happened.

If he lhas to proceed in his own name, however, even if he wins people will know that he was disciplined but he sued and some judge overturned it, which will tend to cast considerable doubt on his suitability. Perhaps more so than if he hadn’t sued. Today many employers simply refuse to hire peoole who initiate lawsuits, regardless of outcome, because they don’t want to employ troublemakers, the sort of people who might consider suing them.

[ReaderY]

Your argument is a bit like saying that logic dictates that the sun ought to revolve around the earth. Perhaps so, but empirically the sun DOESN’T revolve around the earth. It’s more the other way around; the center of gravity both wobble around is much closer to the sun than the earth.

Perhaps that means the world just isn’t logical as it should be; perhaps it means ones logic needs to be updated. Either way, arguments about what logically ought to be often fail to establish what actually and empirically is.

This is another one of those cases.

[John F. Carr]

The First Circuit has decided a few non-pseudonymous cases involving police officers being put on the no-testify list.

http://media.ca1.uscourts.gov/pdf.opinions/20-1135P-01A.pdf
"He stated that in light of the obligation imposed on law enforcement officers by the Brady and Giglio doctrines, Stuart was 'unable to perform essential job duties including testifying credibly in court or in other forums.'"

There was a more interesting case out of Maine a year or two ago which I'm having trouble finding.

[John F. Carr]

This is the Maine case I was thinking of:

http://media.ca1.uscourts.gov/pdf.opinions/20-1702P-01A.pdf

I was wrong, it was pseudonymous. Officer sued prosecutor demanding she rescind her descision to consider the officer _Giglio_ impaired and not prosecute his cases. The First Circuit said "Roe does not have a protected liberty or property interest in the prosecutor's charging decisions, decisions regarding what materials are disclosed to criminal defendants during discovery, or decisions as to who to call to testify at trial." And if he had a property interest in his job the prosecutor was not responsible for his termination. The record did not state whether he sued or settled with the town that reported him to the prosecutor and fired him.

[John F. Carr]

...and as much of the _Doe v. Lisbon_ complaint as requests relief against the state runs head on into that binding precedent. Prosecutors are allowed to enter into their files a false accusation of dishonesty against a police officer giving no opportunity to explain it away or deny it.

[SKofNJ]

What makes no sense about these cases and similar cases is the woke need to disclose internal affairs matters under Brady and Giglio. The fact that a police officer has been found guilty by his department of violating a departmental rule or regulation, or engaging in any other type of sanctionable misconduct, is decidedly not a matter that can be admitted into evidence at another forum as affecting the officer's credibility as a witness. It is not a conviction of a crime. It is merely a prior bad act that if not substantively relevant to the issues at trial, is not admissible at any trial where the officer is a witness. Moreover, putting an officer on such a list, and then declaring him unfit to do his duty as an officer, and then trying to fire him on that basis, turns every minor bit of misconduct by an officer, such as failing to properly shine his shoes, or being merely negligent in carrying out an administrative assignment, into a fireable offense.

[wolfefan]

What in your view makes this a "woke" issue? It seems like it's a criminal defense/prosecution issue regardless of wokeness, ideology, or politics.

[Cal Cetín]

I don't know if this particular cop is a good apple or a bad apple.

But in general, why would the woke object to bent cops? Such compromised officers are fit instruments for woke rulers, carrying out dubious orders without question.

[apedad]

Apparently you don't care how your taxes are used - but many of us are - and we'd like to have the ability to review how they're being used, including if we're electing or hiring law-abiding, compliant, effective/efficient govt officials.

And no one gets fired if their shoes aren't shined or they make an admin mistake.

They DO get fired if there's a pattern of not shining shoes (if that's a rule), or making mistakes - and rightly so.

Those are indicators that if we can't trust a govt official to follow simple tasks then how can we trust them when faced with a significant issue, like if/when a cop should shoot someone.

[John F. Carr]

I assume there is a lot being left out of the complaint. Like the headline "sentenced to life for taking a slice of pizza" instead of "career criminal sentenced to life."

[ReaderY]

You don’t need proof beyond a reasonable doubt for credibility impeachment evidence to be admissable. And evidence a police officer lied under oath, tampered with evidence, etc. is absolutely relevant to and probative of credibility. It’s not a mere prior bad act. Professsional misconduct is probative of professional reliability and claims of professional expertise. And misconduct implicating honesty is probative of claims to be telling the truth.

[Holden C]

Dear Eugene Volokh,

Recently, you’ve written a lot about pseudonymous plaintiffs, but your analysis, in my view, misses the mark. You seem to focus a lot on the defendants, how it’s unfair for the defendants to be named but the plaintiff to remain anonymous, because “it wasn’t the defendant’s fault” for being hailed into court.

Sure, that’s true to a certain extent, but how come you never consider the other, perhaps more common case – the defendant harmed the plaintiff in some way, and it was NEVER the PLAINTIFF’s goal to be hailed into court. The plaintiff had no choice but to use the court and legal system to stop a defendant’s tortuous actions.

Just think about the exploding cases of cyberstalking or cyber-harassment. Was it the plaintiff’s fault to be harassed, stalked, or doxed by the defendant, often times truly malicious people? No. The defendant chose to commit a crime, to harm the plaintiff, who has no choice but to commence legal action to stop the defendant from inflicting further harm? In this very frequent case, how is it not justifiable that the plaintiff SHOULD be granted a pseudonym for trial? The plaintiff is defending him/herself from the defendant’s attacks! If the plaintiff uses his real name, that means EVEN IF he wins the suit against the defendant and stops the attacks, he is still HARMED (and never made whole) due to the public disclosure of the case. So in privacy situations like this, I think it is absolutely necessary, for just basic fairness, for the plaintiff to remain anonymous, simply for the fact that if he were to suffer defendant’s attacks, and ALSO forced to litigate using his real name, he would NEVER be made whole, rather he would be punished twice, once by the defendant and another time in the court of law just for exercising his legal rights. This is especially prevalent in the age of internet harassment where the entire offense in question is to “dox” victims, disclosing private or personal information for the purpose of harassing or ruining their life. A pseudonym is absolutely appropriate and should be granted in this case.

If the defendant wants to also use pseudonym in this case, I think it would be fine for both parties to use pseudonym. But to frame the pseudonym litigant situation as somehow “an injustice” caused by the plaintiff “bringing” the defendant to court, is in my view, to grossly mischaracterize the truth – that in most cases the DEFENDANT THROUGH HIS MALICIOUS ACTIONS forces the plaintiff to use the court to defend himself.

I also think courts need to take into account that we are now in the age of the internet, where real damage can be done to a victim/plaintiff/defendant just simply for having his name associated with a lawsuit, regardless of whether he is the victim, the guilty party, or a third party. It's very necessary for courts to be more liberal in allowing pseudonym litigation. This would generally still preserve "open courts" but protect against the encroaching role of technology in invading privacy. The world and public don't need to know who the two parties are in a private dispute to appreciate the law behind it.

Yours,

Holden