By Lena Williams :: A federal court has ruled that government authorities are no longer legally, and might I add constitutionally, required to release criminal mug shots to the press or the public.
The Sixth Circuit Court of Appeals says it made a mistake 20 years ago when it ruled that the Freedom of Information Act “required” the release of booking photographs of criminal defendants, finding that the defendants “lack any privacy interest in the photos.” That case was brought by the Detroit Free Press.
On July 14, the same court reversed its 1996 decision, ruling that federal officials could withhold mug shots because “disclosed booking photos cast a long, damaging shadow over the depicted individual.”
This time, the court ruled against the Free Press and in favor of a longstanding Justice Department policy that keeps mug shots private.
In its ruling, the justices said they found their original decision “untenable,” and now believe “individuals enjoy non-trivial interests in their booking photos.”
Among the myriad legal arguments put forth by the court was that mug shots are being used by people on the Internet and social media to “embarrass and humiliate” defendants and that the release of criminal mug shots violate the accused privacy.
“In 1996, when we decided Free Press 1, booking photos appeared on television or in the newspaper and then, for all practical purposes, disappeared,” the court wrote in its 23-page decision. “Today, an idle internet search reveals the same booking photo that once would have required a trip to the local library’s microfiche collection.”
Since when has the publication or broadcasting of embarrassing mug shots been considered a violation of the Eighth Amendment that prohibits cruel and unusual punishment of criminals?
Robert Loeb, an appellate attorney who argued the case on behalf of the Free Press, said the Sixth Circuit ruling confuses embarrassment with the right to privacy and they’re not the same thing. He said the federal government isn’t concerned about the privacy rights of defendant, but in having control over information.
“They just want their own discretion,” said Loeb. “It’s about government control of information to the press.”
In the 9-7 decision, the court noted that potential employers and other acquaintances can easily access booking photos on websites, “hampering the depicted individual’s professional and personal prospects” and “may endanger one’s prospects for successful reintegration into the community.”
While a case can be made that innocent people’s lives have been ruined after their mug shots appeared in newspapers or on television, a free press cannot and should not be held responsible for mistakes by law enforcement officials.
The court failed to take into account the fact that the publication or broadcast of mug shots can be a public service.
For decades, law enforcement agencies have released mug shots to the media to help apprehend criminals, to inform the public about dangerous criminals or to find additional victims of a crime.
Judge Danny Boggs who wrote a dissenting opinion noted that the public’s interest in knowing whom the government is prosecuting is “strong.”
“The regular release of booking photographs helps to avoid cases of mistaken identity, by prompting individuals to assist the government in finding the actual perpetrator,” Boggs said. “Moreover, booking photographs also reveal what populations the government prosecutes – black or white, young or old, female or male – and for what sorts of alleged crimes.”
He said the release of the photos could raise questions about prosecutorial decisions and give the public the chance to hold to account those prosecutors who disproportionately charge or overlook defendants of a particular background or demographic.
In its ruling, the court claimed that the Free Press “overemphasizes” the Constitution’s role in defining statutory privacy rights.
However, Boggs argued that the vast majority of states do not recognize a “statutory privacy interest” that would require state and local authorities to withhold booking photographs in the ordinary case.
“Booking photographs are either available, or presumptively available, to the public under the law of most states,” wrote Boggs.
As for the court’s argument that it erred 20 years ago, Boggs pointed to the fact that neither the Supreme Court nor Congress corrected the court’s reading of the facts in the case as evidence that the decision was legally sound.
The case in question began in 2013 when the Free Press filed a FOIA request with the United States Marshal’s Service for the booking photos of four Highland Park police officers who were charged that year with multiple public corruption crimes and later convicted of the charges.
The Marshal’s office refused the request and the Free Press sued. The Reporters Committee for Freedom of the Press filed an amicus brief in the case on behalf of a group of 37 media organizations supporting the Free Press. Two lower courts, citing the 1996 Sixth Circuit court decision, ordered the release of the photos. The Sixth Circuit decided to rehear the case to “reconsider” whether there is a personal-privacy interest in booking photos.
The Free Press is said to be considering the possibility of seeking further review by the Supreme Court.
In the meantime, the Justice Department and other federal agencies can decide on a case-by-case basis which booking photos the government will and will not release to the press.
Boggs believes the decision deprives the public of vital information about how its government works and does little to safeguard privacy. The DOJ has indiscriminately used its policy as it sees fit, releasing booking photographs as evidence in criminal proceedings or except “when a law enforcement purpose is served.”
“Information can be both public and embarrassing,” Bogg said. “The fact that a record is embarrassing does not answer the question whether an individual can reasonably expect that record to remain private.