9th Circuit says mug shots posted online are 'pretrial punishment' in Maricopa County case

The posting of mug shots of people arrested on government websites amounts to illegal pretrial punishment, the 9th Circuit Court of Appeals ruled Thursday.

In a unanimous ruling, the three-judge panel gave the go-ahead for Brian Houston to sue Maricopa County over the practice of its sheriff's department of routinely putting pictures of anyone processed through its jail on the internet. Judge Marsha Berzon, writing for the panel, rejected arguments by the agency that the posting serve a legitimate public purpose.

Thursday's ruling, however, does not just affect Houston's ability to seek compensation.

He filed suit on behalf of others who have found themselves in this situation. And now, with a formal court opinion, they, too, can file their own claims.

There was no immediate response from the sheriff's department.

According to court records, Houston was arrested by Phoenix police in January 2022 and charged with assault. As part of the booking process, his photo was taken and posted, along with many others, on the county's publicly accessible website.

Next to his photo were his full name, date of birth and a listing of the "crime type.''

But the site also has a "more details'' button revealing his sex, height, weight, hair color, eye color and the specific charges on which he was arrested.

Pursuant to agency policy, the post remained online for about three days. Houston was never prosecuted on the charges not on the post, which were late dropped.

That, however, didn't end the issue.

Houston said that third-party websites "scrape'' such information and post it on their own sites.

He specifically cited mug shots.com which, according to its own records, has mug shots of about 909,000 Arizonans, the vast majority from Maricopa County.

All that, Houston said, caused him emotional distress and public humiliation, permanently damaged his business and personal reputation.

Berzon said it is clear that governmental actions that harm people who have been arrested, before they are ever tried, can violate their due process rights if it is "impermissibly punitive.''

In this case, she said, the county put forward only one nonpunitive reason for posting Houston's mug shot and personal information: transparency. But the court was not persuaded.

"That word is not a talisman that dispels the specter of government punishment,'' Berzon said, calling it "quite a vague concept.'' And, she said, something more is needed to prove a legitimate governmental interest, something the judge said that the county has so far failed to do.

And the judges were unimpressed by the county's argument that putting this information online helps educate Maricopa County residents about how the government -- or the legal system -- operates.

If there were an actual educational component, she said, the information would not be taken down after three days. And then, Berzon said, there is the decision to post personal information unrelated to the crime, like date of birth, height, eye color and hair color.