Pseudonyms and self-incrimination

From the Seventh Circuit decision on Jan. 27 Roe v. DettelbachBy Judge Diane Wood and joined by Judges David Hamilton and Amy St. Eve:

This suit is about a person’s right to receive a gun part called a “drop-in auto sear.” John Roe, suing under a pseudonym to avoid possible criminal liability, filed suit for a judgment declaring that he was entitled to keep a drop-in auto sear that he currently owns….

Before we return to the reasoning in Roe, we must first pose a question of our own: Shall we allow this case to be litigated in pseudonymity? Our courts are open to the public. A consequence of that fact is that “[t]He dislikes using fictitious names The Federal Rules of Civil Procedure state that “all parties must be named in the complaint.” “Judicial proceedings are supposed to be open … so that the proceedings can be observed by the public. Withholding a party’s name prevents public access to case information, including the identity of the parties.” That said, in narrow circumstances it is “presumed that the identity of the parties is public information, and it is possible to overcome possible prejudices. from behind to the opposing party. A party seeking to proceed under a pseudonym must “show[ ] That’s a loss [party] … outweighs the potential harm from concealment.”

Rowe alleged that if he used his real name, he would face possible criminal charges if it was found that his possession of the auto-sear was illegal. This argument has the shadow of a Fifth Amendment self-incrimination claim. We provide limited anonymity in cases where there is a risk of retaliation and “when necessary to protect the privacy of children, rape victims, and other particularly vulnerable parties or witnesses.” On the other hand, we declined to allow the plaintiff to proceed anonymously to avoid embarrassment. We have never had to consider whether the threat of criminal exposure should be a factor for a district court in deciding whether to permit a plaintiff to sue pseudonymously. One could argue that the threat of retaliation includes the threat of criminal prosecution, but that would be breaking new ground. Cf. to do v. city ​​of chicago (7th Cir. 2004) (indicating that we will protect a plaintiff’s identity so that their sexual orientation is not disclosed); Ex rel. Doe v. Elmbrook School Dist. (7th Cir. 2011) (protecting plaintiff’s identity to prevent public retaliation for religious beliefs); Revid in bank (vacated on other grounds).

Our sister circuits are several [citing Fifth, Sixth, Ninth, and Eleventh Circuit cases]However, in determining whether the plaintiff’s privacy interest outweighs the public interest and the defendant’s interest, it allows consideration of whether “plaintiffs were compelled to admit their intent to engage in illegal conduct, thereby risking criminal prosecution.”

This is a delicate issue – one that we need to approach carefully. We conclude that this is not the case in making any broad declaration about criminal exposure. Roe’s anonymity was not among the issues the parties presented and argued on appeal Admittedly, the district court ordered Roe to show cause why he could proceed anonymously, and the parties briefed the issue at that level. The district court signaled its skepticism, explaining that “[e]The application of the law is unlikely to cause such harm as would permit a litigant to remain anonymous.” It also indicates our intent to adhere to the directive that “the judge has an independent duty to determine whether exceptional circumstances justify ․ a departure from the normal course of proceedings in federal court.” But it ultimately never formally decided the issue, choosing instead to let Roe remain anonymous, albeit only through the motion-to-dismiss stage.

For good reason, it is unusual for plaintiffs to attempt to litigate in this manner. We do not encourage this in any way. And even if the public docket reflects a pseudonym, that does not excuse the duty to comply with Circuit Rule 26.1, which requires even an anonymous litigant to disclose his or her real name in the disclosure statement and to file the statement under seal. This rule is necessary “to enable a judge of this court to determine whether he or she [should recuse] from litigation” and protect the impartiality of our proceedings…

For more, see Law of Pseudonym Cases, p. 1400.