Trump Administration to Supreme Court: Keep Mug Shots Private to Avoid ‘Embarrassing’ Suspects

Brief from Department of Justice is curiously sympathetic to criminal defendants

The federal government routinely holds press conferences to announce the arrest and filing of criminal charges against bank robbers, terrorists, and corrupt cops. Federal criminal trials are held in public courtrooms.

Yet the Trump Administration is telling the Supreme Court that federal mug shots should be kept secret to protect the privacy of those who are arrested because they experience a “difficult” moment as the police camera flashes.

“Mug shots are snapped in the vulnerable and embarrassing moments immediately after an individual is accused, taken into custody, and deprived of most liberties,” the Department of Justice argued in a legal brief filed last week urging the Supreme Court not to intervene in the upcoming case Detroit Free Press v. Department of Justice.

Last year, he U.S. Circuit Court of Appeals for the Sixth Circuit ruled that criminal defendants have a right to privacy regarding the release of their mug shots and therefore the press has no automatic right to federal mug shots under the Freedom of Information Act, or FOIA. Mug shots “cast a long, damaging shadow over the depicted individual,” the court found.

Herschel Fink, a lawyer for the Detroit Free Press, said he’s puzzled that the same federal government that publicizes arrests and carries out executions wants to protect the privacy and feelings of defendants embarrassed by their mug shots.

“It’s bizarre,” Fink told TheWrap.

In its filing, the Department of Justice argued that the mug shot should remain secret because it reveals a “uniquely powerful and lasting image of what can be one of the most difficult episodes in an individual’s life.”

Booking photographs also should stay private because mug-shot websites “collect and display booking photos from decades-old arrests,” which can hurt people who have been arrested when they try to look for a job or other “personal prospects,” the government argued.

The Detroit Free Press filed its own legal petition urging the Supreme Court to intervene and overturn the Sixth Circuit decision.

Booking photographs should be made public because they can reveal whether a suspect has been beaten by police or whether authorities are arresting disproportionate numbers of racial minorities, the Detroit Free Press argued.

Victims may come forward if they see the suspect’s photograph and recognize the person as their attacker, the newspaper said.

Fink also points to the long history of public criminal trials in the United States.

“A criminal prosecution is a quintessential public event and the public has a right to be there and witness it,” Fink said. A booking photograph is part of the criminal trial and it “is public, period,” he said.

“The fact that you have been indicted and charged with a serious federal felony — that’s going to live forever,” Fink said.

The Trump Administration’s argument echoes the “right to be forgotten” law in the European Union. Under that law, Google is required to de-index accurate news reports in Europe about court cases and other news if a person complains to Google that the news story is no longer “relevant” and invades their privacy.

“This country has never followed a right to be forgotten, nor should it,” Fink said.

“The ubiquity of the internet and the fact that this stuff may live forever is nothing new – newspaper morgues have been open and clip files have been public for a century or more and this is not a reason to create a new right of privacy because mug shots may appear later or be obtainable” on the internet, Fink said.

Unlike the federal government, most state and local agencies release booking photographs to the press under state open-records laws.

Mug shots of celebrities and historical figures like Rosa Parks and Martin Luther King are the subject of books, websites and art.

Fink said he has been fighting on behalf of the newspaper over public access to federal mug shots since 1993. The administrations of Presidents Bill Clinton, George W. Bush, Barack Obama, and now Trump, all pushed for federal mug shots to be kept from the public, the lawyer said.

“Once in power, all administrations are secretive,” Fink said.

In this most recent case, the Detroit Free Press is seeking the booking photographs of four Highland Park, Michigan, police officers who were indicted on federal felony corruption charges in 2013.

The FBI issued a press release identifying the names, occupations, and ages of the four men when they were arrested. A trial was conducted in open court and the officers were convicted or pleaded guilty and sentenced to prison. Yet their booking photographs remain secret.