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Court News Ohio
Court News Ohio

Police Officer Cannot Anonymously Sue Protestors

A Cincinnati police officer cannot conceal his identity as he sues protestors for claiming that he is a white supremacist, the Supreme Court of Ohio ruled today.

The Supreme Court lifted the order by Hamilton County Common Pleas Court Judge Megan Shanahan allowing the officer to pursue his defamation case under the pseudonym “M.R.” The Court also ruled against shielding from public view the officer’s explanation of why he needed to conceal his identity.

The Court granted the requests of the Cincinnati Enquirer and UCLA law professor Eugene Volokh, a First Amendment scholar, to make the information immediately available.

Writing for the Court majority, Justice Melody Stewart stated that Judge Shanahan failed to link M.R.’s lawsuit and a threat of injury from retaliation by the people he is suing. Justice Stewart noted that Judge Shanahan cited the real risks police officers face from doing their jobs, but did not provide evidence that M.R. or his family had received any threat of physical harm.

The Enquirer and Volokh sought access to M.R.’s lawsuit against Julie Niesen and other protesters who attended a June 2020 Cincinnati City Council meeting. The Supreme Court is considering an appeal of an issue in that case, M.R. v. Niesen, and deciding whether the protestors can appeal a temporary restraining order (TRO) preventing them from publishing identifying information about M.R.

Chief Justice Maureen O’Connor and Justices Patrick F. Fischer, R. Patrick DeWine, Michael P. Donnelly, and Jennifer Brunner joined Justice Stewart’s opinion. Justice Sharon L. Kennedy concurred in judgment only.

Hand Gesture Prompts Complaints, Lawsuit
At the 2020 council meeting, M.R. was providing crowd control and security. He alleged that he was in a hallway occupied by a crowd chanting to “defund the police.” He said that he made an “okay” hand gesture to someone who asked him about the status of another officer who had just left the scene.

Some in the crowd interpreted the gesture as a white-supremacy hand signal. The next day, M.R. noted several derogatory comments about him on social media, and that two people filed complaints about his conduct with the city’s Citizen Complaint Authority.

About a month after the postings, M.R. filed his lawsuit against those who commented about him on social media and submitted complaints. M.R. alleged false light invasion of privacy, defamation, and making a false claim against a peace officer.

The officer requested Judge Shanahan’s permission to proceed under the pseudonym. He submitted an affidavit under seal to support a TRO that prevented his critics from publishing identifying information about him, including his name and address. The affidavit included his real name and noted that he had a wife and children. He also attached copies of social media posts and the citizen complaints against him.

Judge Shanahan granted the requests to allow the officer to proceed under the pseudonym and blocked public view of his sealed affidavit.

Newspaper, Advocates Seek Access to Lawsuit
Less than a week later, the Enquirer requested that the affidavit be unsealed. Shortly after, Volokh submitted a similar request. At a hearing to consider unsealing the records, the officer’s lawyer played surveillance video from the council meeting protest, but no witnesses testified, and no evidence was admitted.

Judge Shanahan issued a second order concealing the officer’s name and the affidavit, finding that the “risk of injury to persons, individual privacy rights and interests, and public safety” supported the restrictions.

The order stated that the job of a police officer involves the “apprehension of very violent and dangerous criminals,” and exposes an officer to physical harm. Requiring the court to publicly post a document identifying M.R. would risk injury to the officer and others, the order stated. The trial court found that in the “current climate, with the uptick in violent acts being perpetrated against law enforcement,” there was a real and serious threat of physical harm. The order stated that one of the defendants in the lawsuit had “threatened in writing” to publish the officer’s personal identifying information for the purpose of harming the officer.

Judge Shanahan argued that her ruling did not harm the newspaper or the professor because the officer’s identity had been publicly revealed multiple times since he filed his lawsuit. The Enquirer identified the officer by name, noting that the citizen complaints about the hand gesture were filed against him. Volokh produced a court transcript showing that the officer’s attorney revealed his client’s name in a separate legal matter. The attorney was representing the officer’s wife in a proceeding when he identified M.R. by name as the officer who filed the lawsuit against the protestors.

Despite the revelations, the Enquirer and Volokh sought writs of mandamus from the Supreme Court to compel Judge Shanahan to grant access to all court records and direct the officer to pursue his case using his name. They also sought writs of prohibition preventing the judge from enforcing her sealing order.

Supreme Court Assessed Rules for Sealing Documents
The Rules of Superintendence for the Courts of Ohio state that documents filed in a judicial action are “case documents.” Case documents are included in the rules’ definition of “court records,” the opinion explained. The rules state that “court records are presumed open to public access.”

Justice Stewart explained that Sup.R. 45(E) allows a court to restrict public access to a record “if it finds by clear and convincing evidence that the presumption of allowing public access is outweighed by a higher interest.” The rules guide the courts to consider factors weighing against public access, including “risk of injury to persons,” “individual privacy rights and interests,” and “public safety.”

During the trial court proceedings, M.R. produced a redacted affidavit, which included some of the reasoning for his seeking to proceed under a pseudonym. In seeking full access, the Enquirer and Volokh maintained that Judge Shanahan had no evidence that M.R. or his family were being threatened and that she merely speculated about the general risks that officers face.

The Court cited the social media post about the “threat” to identify the officer’s name, address, and phone number. The poster did not express a clear intent to publicize the information, but questioned online whether it would be legal to release the information, the opinion stated.

The trial judge did not show that publishing the officer’s information would create a risk of injury, the opinion noted. The Court cited a U.S. 9th Circuit Court of Appeals decision from 2020 (United States v. Cook), which concluded that sharing public information might be “potentially offensive and disagreeable,” but it does not rise to the level of a true threat. The opinion stated that M.R. had not presented any evidence of a threat of physical harm to him or his family.

Use of Pseudonym Considered
Ohio court rules generally require that plaintiffs provide their names and addresses when filing lawsuits, but there are “rare exceptions” for proceeding anonymously. Courts have identified numerous factors that balance the privacy interest of a party remaining anonymous and the presumption that court matters are open. In this case, the two factors at issue were the threat of retaliation against the officer and the public disclosure of his identity.

M.R. requested anonymity because someone online threatened to publish his personal information. Judge Shanahan found that threat could lead to acts of violence against M.R. or his family. The Court ruled that the potential of a threat alone does not permit a person to file a lawsuit using a pseudonym.

“A plaintiff seeking to proceed anonymously for fear of retaliation must show that the filing of the lawsuit causes a risk of retaliation,” the opinion stated.

2021-0047 and 2021-0169. State ex rel. Cincinnati Enquirer v. Shanahan, Slip Opinion No. 2022-Ohio-448.

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