By DAMIEN FISHER, InDepthNH.org
A former Lisbon police officer trying to get off the state’s Laurie List can keep his name hidden from the public, according to a ruling from the First Circuit Court of Appeals.
The officer is suing the town in the United States District Court in Concord under the pseudonym John Doe in his effort to get taken off the Laurie List, also known as the Exculpatory Evidence Schedule.
The use of the Doe identity was challenged by Eugene Volokh, a UCLA Law professor and commentator, who argued keeping the officer anonymous harms the public at large and violates the First Amendment.
“It is the right and duty of the people to hold public officials accountable and to supervise their actions (including the actions of courts). This task becomes much harder when the identities of the key actors are concealed,” Volokh wrote in his challenge.
However, the First Circuit Court disagreed, siding with Judge Joseph LaPlante’s decision to allow the use of Doe.
Judge William Kayatta wrote in the opinion that allowing the officer to sue under the Doe name protects his rights while also helping to assure the public that the EES is accurate and reliable.
“The list is valuable to the state and to the public only if it is accurate, and ensuring that listings are thoroughly vetted before being published directly furthers that end,” Kayatta wrote. “Officers, too, have a strong interest in being able to challenge listings before they are made public. The listing is a form of official public branding by the state. The effects of such an official public branding on one wishing to work as a police officer are likely to be immediate and concrete.”
The EES, or Laurie List, is the list of officers deemed to lack credibility because they lied, broke the law, or otherwise demonstrated a violation of their positions. Doe’s lawsuit contends that he was placed on the list as retaliation by superiors after he complained about mistreatment.
Doe was hired in Lisbon in 2009. The trouble started when he sought reimbursement for his ballistic vest, which the department refused in 2011.
When the ballistic vest needed replacement in 2016, Doe again asked the town to pay for it, which was refused despite purchases for other officers, the complaint alleges.
When Doe complained about the vest issue, he was disciplined and only got a new vest after making demand through counsel, according to the complaint.
On October 15, 2020, Doe conducted his fitness test with the police chief of the Bethlehem Police Department, passed and submitted the form to the state of Police Standards and Training Council, which the council accepted.
Lisbon Police Chief Benjamin Bailey invalidated Doe’s passing test, the complaint said. Doe received a verbal and written warning for failure to perform a physical fitness test. That same day, Doe received a warning about failing to turn off lights, according to his amended complaint.
On Jan. 14, 2021, Doe was terminated as a police officer and Bailey notified the Attorney General’s Office that Doe would be placed on the Exculpatory Evidence Schedule. Doe argued he was not afforded any opportunity to appeal prior to the EES notification. The complaint said he was not given the opportunity to assess or question his accusers and the EES notification was not based upon fact.
The New Hampshire Center for Public Interest Journalism, which publishes InDepth NH.org, signed on to an amicus brief in support of Volokh’s appeal. New Hampshire Center for Public Interest Journalism was joined by the Reporter’s Committee for Freedom of the Press, as well as more than a dozen other news outlets.