Judge says IDs of Seattle cops who attended rally before Capitol riot can be released

A judge denied the officers' privacy arguments, saying the officers "participated in a very public and publicized event"


By Lewis Kamb
The Seattle Times

SEATTLE — A King County judge on Wednesday denied a request for an injunction to block the City of Seattle from disclosing records that would identify six Seattle police officers as participants in the Jan. 6 pro-Trump rally in Washington, D.C., that led to a deadly siege on the U.S. Capitol.

"They traveled to Washington, D.C., and participated in a very public and publicized event," Superior Court Judge Sandra Widlan said, when explaining why the officers' privacy arguments to prevent disclosure had failed. "There is not case law that speaks to these circumstances. ... The officers' actions in this case were public, they are part of a public event."

Widlan's oral ruling Wednesday essentially means that the city can release records that identify the officers — but not yet. After denying the officers' motion, the judge agreed to extend by seven more days a temporary restraining order granted last month that prevents the disclosure, while allowing the officers to seek an appeal of her ruling before Washington's Court of Appeals.

Pending such an appeal, Widlan also agreed to broaden the temporary order so that it applies not only to the four public records requests that prompted the officers' lawsuit last month, but also to any other request for records containing information that would disclose their identities.

[READ: Public employee speech and consequence of unlawful action]

The officers —who are identified in pleadings only as John and Jane Does 1 through 6 — filed suit on Feb. 23 seeking to block release of police personnel and investigative records to four individuals, including a KOMO news reporter, who separately had requested the records under the state's Public Records Act (PRA). The city voluntarily notified the officers it was prepared to release the information if they didn't get a court order to stop it.

Bankrolled by the Seattle Police Officers Guild, the officers' attorney, Kelly Sheridan, had argued that the records are barred from disclosure under public records law because they are part of an open investigation. Sheridan also said the law provides exemptions for privacy and constitutional free speech rights.

All of the officers acknowledged they attended the so-called "Stop the Steal" rally on Jan. 6, staged in protest of the presidential-election results, while off-duty and as private citizens who were exercising "their constitutional rights to free speech," according to their lawsuit.

But Sheridan and the officers' suit have claimed none of them participated in the riot at the Capitol or engaged in any wrongdoing of any kind while in Washington, D.C.

Two days after the Capitol riot, when images surfaced on social media of two of the officers at the rally, Seattle Police Chief Adrian Diaz ordered any officer who had attended the event to self-report their participation. Each of the six officers did so and have since been placed on paid leave while the Office of Police Accountability (OPA) investigates whether they broke any laws or department rules.

The siege — which left the Capitol ransacked, prompted lawmakers to flee for their safety and led to the deaths of five people, including a federal police officer — resulted in an ongoing FBI investigation, with arrests and charges against multiple defendants including scores of Proud Boys, Oath Keepers and others with ties to extremist groups.

Each officer provided a sworn written statement describing fears about personal safety and professional reputation if records naming them are released. They also contended they'd be targeted, harassed and unfairly linked to those who committed crimes at the Capitol despite a lack of proof that they did anything wrong.

Unless and until allegations of wrongdoing are proven, Sheridan said, there's no legitimate public interest in disclosing the names of public employees who privately attended a political rally.

"Public agencies should not be in the business of collecting and releasing information about its employees' private political activities," Sheridan said Wednesday.

But Neil Fox, a lawyer for Sam Sueoka, one of the four public records requesters, countered a legitimate public concern exists about the officers' attendance at the rally and none of the cited exemptions applied to the situation at hand.

"Public employees have First Amendment rights, but police are not normal public employees," Fox added. "We give them guns and they have incredible powers. There are limits on First Amendment rights of police officers when their off-duty conduct throws into question their commitment to professionalism and bias-free policing. The public has a right to know."

Assistant City Attorney Carolyn Boies, who disagreed with Sheridan that the open-investigation exemption applied to a probe of alleged misconduct of employees outside the workplace, has said the city didn't take a position on whether the officers had a privacy right to block disclosure.

Instead, the city voluntarily provided the officers with the third-party notice, which isn't mandatory under Washington's records law. That gave them the opportunity to try to stop the records from being disclosed to the four requesters: Sueoka, Jerome Drescher, Anne Block and KOMO reporter Cristi Landes.

During her ruling, Widlan one by one addressed and rejected the officers' legal arguments for each public records law exemption and cited case law as inapplicable given the circumstances. Among her reasoning, the judge noted she "takes very seriously" the officers' safety concerns, but said no high-ranking police or city officials have come forward to support the officers' claims they would be unfairly targeted or harassed if the records identifying them are released.

"No one but the officers themselves are really asserting this," Widlan said. "Anyone in this situation or a similar situation could come forward and pretty much say that in any case to (prevent disclosure) ... and that is not in the spirit of the Public Records Act."

But the judge agreed with lawyers for both the officers and the city that, pending appeal, the temporary restraining order should be broadened to apply to all similar requests beyond just the four at issue so the parties didn't have to continually come back to court.

Since the officers filed suit last month, the city has received "no less than 25 additional PRA requests from 17 different requesters" as of March 2, with new requests submitted "on a daily basis," Sheridan noted in a brief. The Seattle Times has at least four active records requests related to the matter.

(c)2021 The Seattle Times

McClatchy-Tribune News Service

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