Detainee mugshot sites ruled ‘punishment’ by appeals court

After a Ninth Circuit Court of Appeal ruling, mugshots are no longer available on the Douglas County Sheriff’s inmate search.

Douglas photos were turned off on Friday as a result of the ruling that mugshots of detainees who hadn’t been convicted of a crime amounted to pre-conviction punishment.

On Thursday, Lyon County Sheriff Brad Pope said the Lyon County District Attorney advised him not to post mugshots until an appeal has been completed.

In his social media post, Pope posed several questions that are still to be answered.

“Can a mugshot be posted on a press release? Can the news post mugshots? Can information in relation to arrests be published?” he wrote. “The Lyon County Sheriff’s Office and the Lyon County District Attorney’s Office await more information and hope further guidance will come in the next few weeks.”

Similar questions are being asked by jurisdictions across the 10 Western states after the ruling.

The Douglas County Sheriff’s application included arrestee’s names, when they were arrested and the charges.

The ruling in Houston v. Maricopa County was issued on Sept. 5.

According to the ruling, Brian Houston alleged the Arizona sheriff’s policy of publishing photos and information on its Mugshot Lookup site violated his rights to substantive and procedural due process and to a speedy public trial.

Houston was arrested by Phoenix police in January 2022 and charged with assault. In addition to his photo, his full name, birthdate and crime type was posted along with descriptors.

The post was online for three days and charges were eventually dropped.

“The photographs posted on the Mugshot Lookup website are often gathered by other internet sites and thus remain available after they are removed from the county website, even if the arrestee is never prosecuted for convicted."

A panel of the Ninth Circuit reversed a lower court dismissal that Houston's rights were violated by posting his photo to the web site.

“Houston sufficiently alleged that, as a pretrial detainee, the Mugshot Lookup post caused him to suffer actionable harm — public humiliation and discomfort compounded by reputational harm,” according to a summary of the ruling. “Although Houston’s Mugshot Lookup post was not a condition of his pretrial detention, governmental actions that harmfully affect arrestees pretrial can violate due process if impermissibly punitive.”

Maricopa County’s attorneys argued in the lower court that “Mugshot Lookup posts both increases transparency in the criminal justice system and meets the Arizona public records laws requirement that all public records shall be made available for inspection.”

The Appeals judges were unmoved by the transparency argument.

“We cannot credit a transparency justification without evaluating what information is at issue, to whom such information is being revealed and the purpose such disclosure services,” according to the ruling. “After conducting such an examination, we conclude that a mere assertion of transparency interest does not establish a ‘legitimate governmental objective’ requiring dismissal of Houston’s complaint.”

The court rejected some of Houston’s arguments, including his due process and Sixth Amendment claims, but did find that publishing his personal information and photo amounted to pretrial punishment.

“The state may not punish pretrial detainees without an ajudication of guilty,” the court concluded. “Houston plausibly pleaded a substantive due process claim against the county based on pretrial punishment.”

The ruling only addresses whether governmental entities may post mugshots online, not whether publications like The Record-Courier may publish them.

The Record-Courier does publish mugshots of arrestees in certain circumstances.