Last week the Sheriff’s Office posted this note on the Sheriff’s booking log webpage: “Due to a recent ruling of the 9th Circuit Court of Appeals, in the case of Houston V. Maricopa, the Mendocino County Sheriff’s Office is not posting photographs of arrestees on the Mendocino County Sheriff’s Office booking log website.”
From my union days, I’m familiar with the 9th Circuit Court of Appeals from years of rulings on cases of ours that had been appealed. The 9th Circuit ruled in our favor on each and every case. We benefitted from the black robes friendly inclinations to labor unions, or at least our union, the Air Transport Employees. But the 9th Circuit can also issue reality-bending decisions that for the past 40 years have gotten tossed by both “Liberal” and “Conservative” Supreme Courts.
Most recently the 9th Circuit’s ruling that state and local governments had no authority to issue bans on homeless encampments, etc., was overturned three months ago when the Supreme Court ruled that state and local governments do have the authority to enact laws and ordinances that prohibit people from sleeping or camping on sidewalks, shopping malls, residential neighborhoods, and state, city, and county public parks and lands.
I believe the Supremes will make a similar ruling on this mug shot decision by the 9th Circuit.
Here’s some quick comments on mug shots and the 9th Circuit’s ruling
According to court records, Brian Houston was arrested by Phoenix, Arizona police in January 2022 and charged with assault. As part of the booking process, his photo was taken and posted, along with many others, on that county’s publicly accessible website.
Next to his mug shot photo were his full name, date of birth, and the crime he was arrested for. The website site also has a “more details” button revealing his sex, height, weight, hair color, eye color, and the specific charges on which he was arrested.
What appeared on the website is generally found on all cop booking logs, including ours here in Mendocino County.
It should be pointed out that Mr. Houston was never prosecuted on the charges on the post, which were later dropped.
Houston then sued Maricopa County Maricopa County and Sheriff Paul Penzone, alleging that the County's practice of posting arrestees’ photographs and identifying information on its mug shot website violated his substantive and procedural due process rights and his right to a speedy public trial. He claimed this caused him public humiliation, reputational harm, and emotional distress.
The United States District Court for the District of Arizona dismissed Houston's claims. The court found that the mug shot post was not a condition of pretrial detention and that Houston failed to show a cognizable liberty or property interest under state law for his procedural due process claim. The court also dismissed his Sixth Amendment claim, noting that Houston was not prosecuted and thus had no trial.
Houston appealed to the 9th Circuit Court of Appeals which reversed the district court's dismissal of Houston's due process claim, and found that he suffered “actionable harm.”
The situation now is that all nine western states under the 9th Circuit’s jurisdiction have probably temporarily suspended the public posting of arrestees’ photos. Most likely jailhouse photos are still being taken but are not posted on websites or released to the public and the media pursuant to Public Records Act law.
Here are my thoughts.
- World-wide, the history of police mug shots goes back to the 19th Century.
- The primary purpose of the mug shot is to allow law enforcement to have a photographic record of an arrested individual to allow for identification by victims, the public and investigators.
- Presumably, arrests are made with probable cause. For nearly 200 years, arrestees’ photos have been part of the initial investigatory process. This is self-evident but mug shots are an important segment in the probable cause process.
- Since probable cause is necessary to effect an arrest, that threshold should be the benchmark for releasing mug shots as well.
- Chances are these days that an arrestee may not remain in custody for long, and will be out free on their own recognizance or “zero bail.” Chronic offenders will often continue to commit crimes while awaiting adjudication. The mug shot may cause a potential new victim to provide police with information of a new crime.
- Booking photos provide information to both the public and law enforcement in the region of what a recently captured offender looks like who may be “active” in their area.
I wouldn’t be all that surprised if the next step is a legal challenge to security videos, cell phone videos or even still photos showing crooks committing crimes or fleeing from a crime scene. I suspect it is next on the list for the same reasons raised in the Houston case.
Currently arrest logs are public records. Will there be an attempt to conceal those records from the public as well?
We live in a world now where nearly everything we do is recorded or electronically captured in some fashion or by some technology. Are we going to prohibit all of that?
That genie escaped the bottle a long time ago.
The 9th Circuit’s mug shot decision is an example of a bad case making bad law.
It should, and probably will, be overturned by the Supreme Court.
(Jim Shields is the Mendocino County Observer’s editor and publisher, observer@pacific.net, the long-time district manager of the Laytonville County Water District, and is also chairman of the Laytonville Area Municipal Advisory Council. Listen to his radio program “This and That” every Saturday at 12 noon on KPFN 105.1 FM, also streamed live: http://www.kpfn.org)
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