I write this post to share a thought that I didn't get the chance to complete during my recent appearance on the Bloomberg Law Show. It's about the July 14, 2016 decision in Detroit Free Press v. Department of Justice, in which the en banc 6th Circuit decided 9-7 to reverse 20 years of precedent that had allowed the media to obtain copies of mugshots from the US Marshals Service promptly after an arrest was made. Instead, the court has now decided that the photos are exempt under Exemption 7(C) of the Freedom of Information Act, which permits agencies to refuse requests for “records or information compiled for law enforcement purposes” if public release “could reasonably be expected to constitute an unwarranted invasion of personal privacy.”
First, let's admit that the majority's reasoning has a certain logic. The Court took notice of what the concurring opinion called “the online mugshot-extortion business,” in which websites collect mugshots and force the depicted persons to pay to have the photos removed. The majority described these photos as being “snapped in the vulnerable and embarrassing moments immediately after an individual is accused, taken into custody, and deprived of most liberties.” As such, the photos are “embarrassing and humiliating information.”
Yet one can admit all of this without concluding, as the majority did, that these concerns warrant the federal courts recognizing a new privacy right. As it has with many other forms of information, the Internet has made the spread and exploitation of mugshots more efficient. That doesn't mean that publishing a mugshot (a government-created document that has historically always been public, and that depicts the same face that a person reveals to the world every day) is now “private,” or that publishing it is now “an unwarranted invasion of personal privacy.” That, in a nutshell, is why seven judges disagreed with the Court’s result. As a long-time media lawyer who has often defended the First Amendment rights of the Detroit Free Press and other publishers, I side with the dissenters.
The reason this decision matters—deeply and right now—however, goes deeper. It has to do with transparency and accountability in law enforcement.
It goes without saying that the relationship between law enforcement in the United States and the citizens they police is at a low point. I was in Dallas earlier this month when a gunman killed five policemen, which drove this reality home for me in a palpable way. We have all grieved at the heavily publicized deaths of African Americans at the hands of police, and over the ongoing string of attacks on law enforcement officers following the Dallas massacre. Regardless of our race, our political beliefs, our opinions about who was at fault in any particular incident, or which group of people we tend to sympathize with most, all clear-thinking Americans ought to be able to agree that this state of affairs needs to improve.
Historically, the most effective way that any democratic society--especially ours--has preserved peace between the government and the governed is through transparency and accountability. Free people will not long consent to being governed by those who are not subject to the same laws and principles they enforce. And the people cannot hold officials and officers accountable to those laws and principles unless they are fully informed. As the dissenting judges wrote, “public oversight is essential in criminal proceedings, in which the government wields the power to place the individual in jeopardy of imprisonment. Closing a window into such proceedings undermines the public confidence that is essential to any effective criminal-justice system, for it is difficult for citizens to accept what they are prohibited from observing.”
We’ve seen this principle vindicated in the string of recent cases upholding the public’s right to record law enforcement officers carrying out their official duties (another topic I’ve litigated and written on). It's the same principle behind the FOIA statute under which this case was brought—a statute motivated by Watergate and other high-profile reminders of the need for government accountability.
Mugshots may not be the most important or effective tool for accomplishing transparency in law enforcement, but publishing them does serve that goal. “The public has come to expect that such photographs will be accessible,” wrote the dissenters. “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…. 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. Their release may raise questions about prosecutorial decisions, enabling the public to detect and hold to account prosecutors who disproportionately charge or overlook defendants of a particular background or demographic.” Perceptions of unfairness in how police enforce laws against African Americans and other groups is exactly what is driving so much of the anger against police right now. We ought to be using every tool at our disposal—including unfettered access to mugshots—to expose injustice where it exists, and to dispel perceptions of unfairness where they are mistaken.
Mugshots “also help the public learn about what the government does to those whom it detains.” As an earlier Sixth Circuit opinion had explained, “had the now-famous videotape of the Rodney King beating in Los Angeles never been made, a mug shot of Mr. King released to the media would have alerted the world that the arrestee had been subjected to much more than a routine traffic stop and that the actions and practices of the arresting officers should be scrutinized.” Citing other, more recent examples of police brutality revealed by mugshots, the dissenting judges concluded that mugshots “play a role in building public awareness of what law enforcement does and why, which in turn enables the public to hold authorities to account.”
Of course, by the same token, mugshots also help to dispel false accusations of brutality, and sometimes offer clues even into the underlying crime for which the suspect was arrested. For example, analysts and citizens across the world pointed to the apparent absence of injuries in photos and video of George Zimmerman as evidence undercutting his story that Trayvon Martin had assaulted him.
Finally, there is a double standard in the DOJ’s position here that only serves to further undermine public trust in law enforcement. The court’s decision allows the government to deny a reporter’s request for a mugshot, but there is no law preventing the government from releasing a mugshot when doing so serves its interest. There will, of course, frequently be sound reasons for law enforcement to release such photos, such as to alert the public to an escaped suspect, to encourage witnesses to come forward, or to rebut a false accusation of brutality. But when the government is the only one who gets to decide which photos are released, anything it publishes inherently becomes less trustworthy, and its motivations for doing so become suspect. In a 2002 case striking down the government’s practice of secretly detaining undocumented immigrants and deporting them without a public hearing—another case in which I was privileged to help represent the Detroit Free Press--the Sixth Circuit rightly observed that “selective information is misinformation.”
For all of these reasons, the court’s decision in this case is, in my view, not only wrong, but dangerous. To be sure, there are much bigger issues than access to mugshots that are driving the erosion of trust between law enforcement and the public. Because of how bad that relationship is right now, though, we ought to be especially cautious to avoid doing things that unnecessarily throw fuel on the fire. The safety of both officers and citizens, as well as the legitimacy of our law enforcement institutions, are at stake.