Police officers who attended Trump’s Jan. 6 ‘Stop the Steal’ rally may be allowed to keep their identities private

Background: President Donald Trump speaks during a rally Jan. 6, 2021, in Washington, on the Ellipse near the White House. (AP Photo/Evan Vucci, File). Inset: A Seattle Police Department patch is seen on an officer’s uniform, July 17, 2016, in Seattle. (AP Photo/Ted S. Warren, File).

A striking legal question came before justices of the Washington State Supreme Court this week: Does a group of police officers who attended the “Stop the Steal” rally for Donald Trump at the U.S. Capitol on Jan. 6, 2021, have a Constitutionally-protected right to keep the results of a probe into their specific conduct that day secret, or must their names — and those results — be revealed to the public?

The question unfolded during oral arguments in Jane & John Does 1-6 v. Seattle Police Department et al. on Tuesday.

At the center of the case are six police officers, two of whom were fired in August 2021 and have been identified publicly by the Seattle Police Department as married former officers Caitlin Everett and Alexander Everett. Four others have not been named publicly by the department though state prosecutors noted to the Washington State Supreme Court on Tuesday that their names have previously emerged on social media. This factor is central to the state’s case; as prosecutors pointed out this week, these four individuals have not only retained their roles at the Seattle Police Department but also have not suffered any harassment as an investigation got underway, The Associated Press reported.

Records show that the Seattle Police Department (SPD), did not learn about the Everetts’ presence at the Capitol or the others officers’ attendance of the “Stop the Steal” rally or other rallies that day until after the fact when one in the group had posted a photo on social media. The SPD police chief in 2021, Adrian Diaz, ordered all officers to come forward if they were at the Capitol or attended any related events so they could present themselves for formal scrutiny by the Office of Police Accountability, or OPA.

The Everetts violated internal department policy because, as a disciplinary action report for Caitlin Everett states, the couple was in a restricted area at the U.S. Capitol as rioters were scaling the walls and local police scrambled to fend them off. Diaz resoundingly declared it “absurd” of the couple to suggest that the evidence OPA amassed did not show them trespassing directly in a zone where “they should not be amidst what was already a violent, criminal riot.”

“There was an active insurrection ongoing at the same time that you were in the immediate vicinity of the Capitol Building. This included rioters assaulting law enforcement officers and [rioters] making forced entries into the building,” disciplinary action reports for both Caitlin Everett and Alexander Everett state.

Records show neither attended their disciplinary hearing before Diaz and both insisted their conduct was protected under the First Amendment . It does not appear that any criminal federal charges have been filed against the couple at this time.

As for the four other officers, who are all currently on active duty, OPA investigators determined in a final report that three did not violate department policy while a fourth officer’s conduct was deemed inconclusive. All officers have maintained that they were not part of any wrongdoing or criminal behavior on Jan. 6 and that they were each exercising their First Amendment rights. They have argued that the exposure of their identities publicly could result in various hardships including harassment and “doxing.”

As The Associated Press reported after oral arguments on Tuesday, the officers have sought to keep their names hidden after a public records request into the OPA investigation was made by former law student Sam Sueoka. On two separate occasions lower courts have ruled against the police officers but an appeals court finally sided with them when it found that OPA had to, at minimum, consider the First Amendment rights of individuals at the center of public records requests.

What ensued was more pushback in court from state agencies who argued the ruling inflicted a new and unnecessary burden. Any time a public records request would be made, it was reportedly argued Tuesday by Seattle Assistant City Attorney Jessica Leiser, agencies would now have to parse whether a First Amendment violation was occurring. At present, Washington law around state public records already gives people the right to be notified when someone starts seeking their information.

But if it was meant for government agencies to effectively decide for people whether their rights were being violated by a request — instead of leaving it up to a person to make that decision for themselves — then legislators would have written the law that way, Leiser argued.

The officers however say they have a “legitimate fear” that disclosure of their conduct on Jan. 6 will not only inhibit their personal safety but infringe on their ability to “provide effective law enforcement to the community” as well as engage in protected political activity.

“Moreover, because other attendees at the January 6 political rally did go on to participate in the Capitol Riot, disclosure of the Exempt Information will unfairly cause Appellants to be associated with those individuals and branded as ‘criminals’ or ‘extremists’ when they have done nothing wrong — the precise reason that records relating to unsubstantiated allegations and pending investigations can be exempt from disclosure under the [Public Records Act],” attorneys for the officers wrote in their initial appellate brief .

Washington State Supreme Court Justice G. Helen Whitener, according to the AP, seemed acutely concerned on this point.

The country, she said during oral arguments, “is built on dissent, and that’s done through protesting and for marginalized populations, many of which I belong to, this is how individuals literally effectuated changes.”

If a person participating in a political rally means they immediately forsake their right to privacy as well, then, this would have a “chilling” effect on a person’s “ability to participate in what is supposed to be a constitutionally protected event,” Whitener also said, according to the AP report.

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