By Noble Brigham and Katelyn Newberg
Las Vegas Review-Journal
LAS VEGAS — Local police departments are citing a new 9th Circuit Court of Appeals ruling to deny access to mugshots of people arrested and accused of committing crimes.
Brian Houston sued Maricopa County in Arizona, claiming the county humiliated him and harmed his reputation by posting his mugshot and identifying information online after he was arrested on suspicion of assault, a charge that was eventually dropped.
Judge Marsha Berzon ruled that Houston suffered “actionable harm” as a result, according to an opinion filed earlier this month.
The court found that third-party websites could access the information, even after its removal days later from the county website.
“The result is public exposure and humiliation of pretrial detainees, who are presumed innocent and may not be punished before an adjudication of guilt,” Berzon wrote in the opinion.
The Metropolitan Police Department, Nye County Sheriff’s Office and Henderson Police Department said they will not release booking photos or mugshots because of the decision. The North Las Vegas Police Department said the city attorney’s office is reviewing the ruling.
Before the ruling, those photos were regularly provided to the public and published by local media outlets.
Maricopa County argued that posting mugshots and personal information online promotes transparency, but the court did not agree.
‘Vague concept’ of transparency
The judge wrote that transparency is a “vague concept,” and requires “context” over what information is being revealed and why.
“Nowhere does the County explain how posting specific, highly personal information about individual arrestees online — including, here, Houston’s image, birthdate, full name, appearance details, and charges — furthers any transparency interest,” Berzon wrote.
First Amendment experts disagreed with preventing the release of mugshots.
Mugshots are “basic arrest information” and public records that have historically been available, said Brendan Healey, a Chicago-based media lawyer. The public has a right to know who is being arrested and why, he said.
Most people know a mugshot is not a determination of guilt, he added.
Denver First Amendment attorney Steven Zansberg said mugshot access varies by state, but most states consider them public.
He thinks they should be available. When people are deprived of their liberty, the public and press should be able to keep tabs on the actions of law enforcement, he said.
Review-Journal Chief Legal Officer Benjamin Lipman said the ruling is not an excuse for local police departments to withhold booking photos.
“The 9th Circuit did not rule that the arrestee’s constitutional rights were violated, only that they might have been, but we respectfully disagree with the limited ruling that the arrestee might have a constitutional right to keep their mugshots secret,” Lipman said.
“Perhaps more importantly, the 9th Circuit specifically avoided ruling on whether mugshots must be provided if the state’s public records act establishes them as public records,” Lipman said. “Under the Nevada Public Records Act, mugshots are public records and, therefore, the 9th Circuit holding does not provide a basis to withhold mugshots in Nevada, in any event.”
‘Critically important public records’
In recent years, there are news organizations, like those in the Gannett chain, that have made the decision to stop publishing mugshots in at least some cases.
“The presumption of innocence is part of the fundamental bedrock of our judicial system, and mugshots can provide a significant hurdle to that process,” said the Montgomery Advertiser in 2018, explaining why it would no longer run mugshot galleries.
But mugshots can help hold police accountable, said Review-Journal Executive Editor Glenn Cook.
In 2023, for instance, the Idaho Statesman used a mugshot of a bloodied and bruised suspect for a story about how police had beaten him.
“Booking mugs are critically important public records because they more thoroughly identify those arrested on suspicion of crimes,” Cook said. “They protect public safety by helping residents recognize suspects when they are released before trial. And the photos help prevent confusion between the identities of criminal suspects and law-abiding citizens with similar or identical names.”
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