Published   June 12, 2013

ACLU and Border Coalition Seek Open Public Record in Anastasio Hernandez Rojas Civil Suit

Border Agents Claim of Unspecified “Security Concerns” Not Compelling

anastasio-CBP

SAN DIEGO – Noting that the death of Anastasio Hernandez Rojas generated enormous public interest, the San Diego ACLU filed a motion late yesterday urging a district court judge to deny permission for the border enforcement agents accused of serious abuse resulting in the man’s death to remain anonymous. Representing the Southern Border Communities Coalition, the suit seeks to protect the public’s interest in open and transparent proceedings in cases involving serious questions of official misconduct.

In May 2010, Anastasio Hernandez Rojas, a 42-year-old construction worker and father of five, died after being beaten and then tased by a group of up to twenty Customs and Border Protection officers at the San Ysidro Port of Entry. The family of Hernandez Rojas believes his death was due to excessive force, and filed a civil suit against the federal government and individual officers.  The government and the officers have made an extraordinary request to seal all documents related to their pending motions for summary judgment, and have also requested that all public court records maintain their anonymity, citing only vague “security concerns.”

“The defendants’ extraordinary request to allow this case to proceed under full seal due to unspecified and unproven ‘security concerns’ violates both the First Amendment and the common law right of access to judicial records,” said David Loy, legal director of the ACLU of San Diego & Imperial Counties. “Openness in judicial proceedings is essential to creating public trust in the legitimacy of the proceedings. In this case, defendants have not met the strict standard for cutting public access to the court record.” The records of civil cases are usually open to the public.  The court cannot seal judicial records unless it finds that maintaining secrecy over limited portions of the record is narrowly tailored to a compelling government interest.

The issue arose when the unidentified defendants made the motion to seal all court records related to the Hernandez Rojas civil case, citing unspecified “security concerns.” Their declarations to support this motion contained no facts suggesting that anyone made any threats against any of the defendants.  Lacking any evidence, defendants cannot claim reasonable fear of retaliation if their identities are allowed into the public record.

According to the San Diego ACLU motion, the district court judge must balance five factors in determining whether defendants should be allowed to remain anonymous:

  1. The severity of the threatened harm
  2. The reasonableness of the anonymous party’s fears
  3. The anonymous party’s vulnerability to such retaliation
  4. The prejudice to the opposing party; and
  5. The public interest.

However, since the defendants have not provided the court with any specific evidence demonstrating that any genuine threat exists, the motion argues the court has nothing to balance, and therefore, no seal should be imposed.

Other circuit courts have held that the First Amendment protects access to these types of court proceedings, especially at summary judgment hearings.  To seal court records, the court must make specific, on-the-record findings that sealing the proceedings is necessary to preserve a compelling government interest, and that the sealing is as narrow as possible to achieve that goal. Even without applying First Amendment protections, however, the San Diego ACLU brief argues that defendants did not meet the strict standard for shrinking public access to judicial records under the common law, which the Ninth Circuit Court of Appeals has held imposes “a strong presumption in favor of access.”

The defendants’ blanket request to seal the entire summary judgment record is, as the motion says, “grossly overbroad.” A motion to seal has to take each detail, document by document, and determine whether that particular document needs to be shielded from the public eye. Litigation is a public business, and except under certain, specific, exceptional circumstances, the courts have ruled that all parties to a lawsuit must be identified.

The public interest in this case is particularly strong, because it raises serious questions of law enforcement misconduct. SBCC has identified 22 cases of individuals killed or seriously injured by border agents just since 2010. The public’s legitimate interest in the identity and activities of peace officers is even greater than those of the average public servant, because law enforcement agents possess the means and the authority to exercise force, and misuse of this authority can result in significant loss of constitutional rights and personal freedom, or, in the case of Hernandez Rojas, loss of life.

The court has an obligation to uphold the public interest in open courts, by requiring the defendants to identify themselves unless they can prove in substantial and specific ways justification for anonymity.