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Augmented Legality
BlogsPublications | March 14, 2016
2 minute read
Augmented Legality

Michigan Privacy Law: Detroit Free Press and DOJ Face Off Over Mugshots

On March 10, 2016, lawyers for the Detroit Free Press and the Department of Justice met in the U.S. Court of Appeals for the Sixth Circuit in the latest chapter of a decades-long battle over access to "booking photos," or mugshots. Twenty years ago, the Free Press obtained a ruling from a panel of the 6th Circuit that people have no federal privacy right in the mugshots taken of them when they are arrested by the U.S. Marshals Service. Twice since then, the same court has upheld that ruling.

Because two other Courts of Appeal have since disagreed, however, the Marshals Service unilaterally announced that they would no longer follow the 6th Circuit ruling. A panel decision may only be overruled by the entire court sitting together en banc. So, on March 10, all 15 judges of the 6th Circuit heard the parties' arguments. You can hear the full exchange on the Court's website here.

An impressive array of 59 other media organizations filed briefs supporting the Free Press' position that the media ought to have the unfettered right under federal law to obtain and publish mugshots, arguing that "criminal defendants have no reasonable expectation of privacy in who they are as individuals accused of crimes by the federal government," and that "booking photos tell the 'who' story in a way that a (defendant's) name alone can't." The DOJ, on the other hand, believes that it should have the right to determine whether or not to disclose a mugshot, and that the media should be required to file a FOIA request to obtain them.

Meanwhile, the majority of state law enforcement agencies release mugshots to the media as a matter of course--including in Michigan, thanks to a court decision that was also won by the Detroit Free Press.

As a longtime advocate for media rights myself, I'm biased on this one--I'm rooting for the media. Regardless of the outcome in the 6th Circuit, though, it seems likely that the aggrieved party will push for a final resolution of the issue by the US Supreme Court.