Pseudonymous Lawsuit by Police Officer Over His Placement on "Exculpatory Evidence List"

I blogged last month about this motion to unseal and oppose pseudonymity that I filed  in this case (Doe v. Town of Lisbon); since then, the officer filed a response, and I just filed a reply:

[I.] Lawsuits related to allegations of criminal misconduct are routinely
litigated in public, without pseudonyms

When a police officer arrests a citizen who is then prosecuted, the court filings in­clude the citizen's name—even though the citizen is presumed innocent, and may eventually be acquitted. If the citizen sues a police officer for false arrest, the citizen must generally sue in his own name, even though that would further publicize the citizen's alleged transgression. This is equally true if the citizen sues over an allegedly unconstitutional Terry stop or search unconnected to an arrest, which would other­wise never have been publicly noted. See, e.g., D.E. v. Doe, 834 F.3d 723, 728 (6th Cir. 2016) ("As for potential negative scrutiny from future employers, D.E. … 'forfeited his ability to keep secret his actions at the international border … when he sued United States Customs and Border Patrol agents.'").

If one citizen sues another over allegedly slanderous allegations of misconduct, criminal or otherwise, the plaintiff generally sues in his own name, even though that would further publicize the allegations. If a plaintiff sues a defendant alleging sexual assault, the defendant will generally be named, even though that too would publicize the allegations of conduct that is criminal as well as tortious. If an employee sues an employer for discriminatory firing, and the employer's defense (which the employee says is unfounded) is that the employee was fired for professional misconduct, the employee must generally sue in his own name. Doe v. Frank, 951 F.2d 320, 322-24 (11th Cir. 1992) (denying pseudonymity where employee sued for discrimination, and the employer claimed the employee was fired "because of an inability to perform his assigned duties, a repeated failure to maintain regular attendance and improper conduct in reporting to work under the influence of alcoholism"). If a professional sues a licensing agency that had found him guilty of professional misconduct, he must generally sue in his own name. Coe v. U.S. Dist. Court for Dist. of Colorado, 676 F.2d 411, 415, 418 (10th Cir. 1982) (concluding, after "balancing the need advanced by Dr. Coe to maintain individual and professional privacy rights against the right of the public to know all of the facts surrounding the formal proceedings posited with the Board," that "the privacy interest does not outweigh the public's interest").

In all these situations, the citizen's desire not to have his name associated with allegations of misconduct must yield to "the public's ability to oversee and monitor the workings of the Judicial Branch," which "promotes the institutional integrity of the Judicial Branch." Doe v. Public Citizen, 749 F.3d 246, 263 (4th Cir. 2014). The public has a "legitimate interest in knowing all of the facts involved, including the identities of the parties." Doe v. Frank, 951 F.2d at 322.

And the presence of allegations of criminal behavior is not a basis for pseudonymity, as D.E. v. Doe, supra, illustrates. When Doe v. Stegall, 653 F.2d 180 (5th Cir. Unit A 1981), allowed pseudonymity for a mother and two children who were challenging unconstitutional prayer in Mississippi public schools, the court did note that the family's views were "shown to have invited an opprobrium analogous to the infamy associated with criminal behavior"—but only in indicating the risk of "extensive harassment and perhaps even violent reprisals if their identities are disclosed." Id. at 186. "The threat of hostile public reaction to a lawsuit, standing alone," the court stressed, "will only with great rarity warrant public anonymity." Id. It was "the threats of violence generated by this case, in conjunction with the other factors weighing in favor of maintaining the Does' anonymity," that "tip[ped] the balance against the customary practice of judicial openness." Id.

Yet despite the general requirement that even professional damaging allegations must be discussed in open court, without pseudonyms, plaintiff Doe is arguing that New Hampshire police officers are entitled to pseudonymity when they sue in federal court over similar allegations. That is inconsistent with the federal courts' general—and sound—insistence on openness in litigation.