The Washington Supreme Court heard arguments Tuesday in a nine-month legal fight over whether records identifying six Seattle police officers who attended a pro-Trump rally before the Jan. 6 attack on the U.S. Capitol should be publicly disclosed.
During oral arguments via videoconference, Chief Justice Steven C. Gonzalez and other justices tried to suss out whether the state's highest court actually needs to weigh in on the issue, or whether it should simply send the matter back to the trial court, based on new facts that have emerged since a ruling in March.
"Given the passage of time and further developments, what is there left for us to decide at this point?" Gonzalez asked when opening Tuesday's hearing.
The legal fight was sparked in February by six officers who faced an internal investigation for attending the so-called Stop the Steal rally in Washington, D.C., on Jan. 6.
After Seattle University law student Sam Sueoka and three other individuals separately requested records about the officers while the investigation was still underway, the city voluntarily notified the officers it was prepared to release some records unless they got a court order to stop it. The officers sued, seeking to block that disclosure.
In March, a King County Superior Court judge ruled against the officers' arguments that privacy rights barred release of the records, finding they attended a public rally and the records in question must be disclosed.
Since then, the case's circumstances have changed substantially as it has made its way to the Supreme Court.
Following the March order, which was stayed during the officers' appeal, the city's Office of Police Accountability completed and released findings of a detailed six-month investigation. It found two of the officers, who have since been fired and identified in the press, had trespassed on restricted grounds outside the Capitol during an "active insurrection."
Three of the other four officers were cleared of allegations of unprofessional conduct and did not break any laws, the investigation found. Evidence wasn't conclusive as to whether the fourth officer broke any rules or laws.
Tuesday, lawyers representing the four officers cleared of wrongdoing didn't dispute that the Supreme Court should remand the case back to the trial court. But they argued the court should instruct the trial court to reconsider privacy issues it ruled didn't apply when denying a preliminary injunction in March.
Blair Russ and Aric Bomsztyk, the officers' attorneys bankrolled by the Seattle Police Officers Guild, contended the officers have a constitutional right to remain anonymous, even when attending a political rally in public.
If records revealing the officers' identities are released, "intimate details of their lives can be widely disseminated, subjecting them to hatred and ridicule," Russ said.
Seattle Assistant City Attorney Carolyn Boies, who said the city has avoided taking a position on legal arguments in the case, noted "if the full amount of requested injunctive relief were provided to the officer appellants, it would result in a sea-change in the way public records requests are evaluated for exemptions."
Boies said the city believes the case should be remanded. But "it would be untenable for public records officers to have to consider what might be implied, inferred or assumed" when assessing records that had yet to even be put into evidence, Boies said.
Janet Thoman, an attorney for Sueoka, argued the officers' rights to free expression when attending the rally are undeniable. But she added: "It's difficult to understand how they could conceivably think that's a matter they could keep entirely to themselves."
The Supreme Court should affirm the trial court's ruling before sending the case back for the lower court to deal with questions about the extent of any other redactions that should be made before releasing the records, Thoman said.
Neil Fox, who also represents Sueoka, told justices the Supreme Court also could simply rule on a pending motion to bar the officers' use of pseudonyms in the case. The motion contends the officers have failed to show "a serious and imminent threat" still exists that would allow them to keep shielding their identities in the lawsuit, he said.
Fox argued that the officers, known only as Jane and John Does in legal pleadings, have only given vague concerns of being harassed or doxxed if their identifies were made public shortly after filing the lawsuit in February. Since then, the OPA findings were released and names of two officers who were fired have been publicized, yet "there has been no evidence of threats or harassment towards any of these officers," Fox said.
"It is their burden to maintain this kind of shield of anonymity, and we've challenged that," Fox said. "I would urge you to grant the change in case title and require the use of real names. And that may end this litigation."
The Supreme Court court will rule on the matter at a later date that wasn't specified Tuesday.
