Court says online mug shots unlawful
Judge says practice humiliates people presumed innocent
The 9th U.S. Circuit Court of Appeals has ruled that a practice by the Maricopa County Sheriff ’s Office of posting online mug shots of people who’ve been arrested is unconstitutional.
Attorneys for the man who brought the lawsuit that led to the ruling said they believe it is the first ruling of its kind and could lead to changes in how law enforcement agencies across the country handle mug shots.
For three days after a person is arrested, the Maricopa County Sheriff ’s Office posts pictures and identifying information about them on a public website titled “Mugshot Lookup.” Other internet sites gather the information and republish it, so the pictures can remain online even if a person is never charged or convicted.
“The result is public exposure and humiliation of pretrial detainees, who are presumed innocent and may not be punished before an adjudication of guilt,” wrote Judge Marsha Berzon in an opinion issued Thursday.
The ruling came in response to an appeal from Brian Houston, who claimed that his rights were violated. A trial court dismissed his arguments, but the appeals court ruled partly in Houston’s favor upon review.
The 9th Circuit ruled that Houston’s substantive due process rights, which protect pretrial detainees from punishment before they are found guilty, were violated.
“Punishment” is defined as an intentional act of punishment that harms the detainee, according to the ruling.
The court said the intent to punish people who’ve been arrested could be inferred by the lack of any other rational explanation for posting the mug shots online.
Phoenix police arrested Houston in January 2022 on assault charges. His
photo and personal information, including his birth date, sex, height, weight, hair color and eye color, as well as the charges on which he was arrested, were posted online by the sheriff’s office for three days.
But the charges against Houston were dropped, and he never went to trial.
Houston alleged third parties scraped the sheriff’s office mug shot website while Houston’s information was online, causing him “emotional distress and public humiliation” and permanent damage to his reputation, according to the appeals court opinion. He also claimed the disclosure of his personal information placed him at risk of identity theft, fraud and extortion.
The sheriff ’s office maintained in court filings that its mug shot publication policy promoted transparency, according to the ruling.
“But the ‘Mugshot Lookup’ page did not contain the names of the arresting officers, the ... police department responsible for the arrest, whether charges were pursued or dismissed, or the jail in which Houston was held,” Berzon
wrote. “The ‘Mugshot Lookup’ posts thus shed light only on arrestees, not on the operations of the Sheriff’s Office or ... law enforcement.”
The 9th Circuit also found that publishing Houston’s information did not promote public safety.
“What is the public interest, for example, in publicly disclosing Houston’s weight?” the appeals court asked.
The 9th Circuit relied heavily on legal precedent set in a case stemming from the administration of former Maricopa County Sheriff Joe Arpaio.
In Demery v. Arpaio, defendants sued over the sheriff ’s office livestreaming from webcams installed in the county jails, turning pretrial detainees into “the unwilling objects of the latest reality show,” as a 9th Circuit opinion in that case from 2004 concluded.
“As in Demery, the County’s post on its ‘Mugshot Lookup’ exposed Houston’s image and the fact of his arrest to the ‘millions of strangers’ able to access the Sherriff’s public website online, triggering discomfort that ‘almost anyone would regard as profoundly undesirable,’ ” Berzon said.
She proposed that the posting of mug shots was potentially more harmful than the jail livestreaming.
“Unlike the livestreamed footage in Demery, the distributed image of Houston identified him personally by name and birthdate, making his ‘Mugshot Lookup’ record immediately searchable,” Berzon wrote. “This exposurebased harm falls well within – and in one respect exceeds – the humiliation and discomfort recognized as actionable harm in Demery.”
A spokesperson for the sheriff ’s office said agency officials were still conferring with their attorneys about their next legal steps and whether they would take the Mugshot Lookup site down in the interim. The Maricopa County Mugshot Lookup website was still active as of Sunday.
Houston’s case has been sent back to the trial court for further proceedings based on the appeals court ruling, but the sheriff’s office could request a rehearing from the appellate court or appeal to the U.S. Supreme Court.
Houston’s lawyers, Daniel Kloberdanz and Andrew Ivchenko, planned to resume their work to get Houston’s case certified as a class action. Ivchenko said he believes the number of people eligible to be part of the class of plaintiffs could be close to 100,000.
They said they want to seek an order demanding the mug shot website be taken down and financial damages for members of the plaintiff class.
“We do hope that this decision is the beginning of the end of the mugshot practice that has harmed so many people throughout the nation,” said Daniel Kloberdanz. “This decision is controlling in the Ninth Circuit, but the law that this Ninth Circuit applied is substantive due process claim, which I feel would be equally applicable to anywhere in the nation.”
Kloberdanz said the ruling should be a “wake-up call” to sheriff’s offices everywhere. “They’re causing a lot of people a lot of harm,” he said.
Ivchenko said Houston was motivated by the 9th Circuit ruling allowing the case to move forward.
“He’s very determined,” Ivchenko said. “He thinks it’s wrong what the county is doing to so many people, and he wants it to stop.”
“But the ‘Mugshot Lookup’ page did not contain the names of the arresting officers, the ... police department responsible for the arrest, whether charges were pursued or dismissed, or the jail in which Houston was held. The ‘Mugshot Lookup’ posts thus shed light only on arrestees, not on the operations of the Sheriff’s Office or ... law enforcement.”
Judge Marsha Berzon