The posting of mug shots of people arrested on government websites amounts to illegal pretrial punishment, ruled the U.S. Court of Appeals for the 9th Circuit. A three-judge panel gave the go-ahead for Brian Houston to sue Maricopa County,, Ariz., over its sheriff’s department's routinely putting pictures of anyone processed through its jail on the internet. Judge Marsha Berzon rejected the agency's arguments that the posting serves a legitimate public purpose. 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 website. Next to his mug shot were his full name, date of birth, and a listing of the “crime type.”
The site has a “more details” button that shows his sex, height, weight, hair color, eye color, and the specific charges on which he was arrested. The post remained online for about three days. Houston was never prosecuted and the charges were dropped. Houston said that third-party websites “scrape” such information and post it on their sites. He cited mugshots.com which has posted the mug shots of 909,000 Arizonans, the vast majority from Maricopa County in the Phoenix area. Houston said the posting, caused him emotional distress and public humiliation and 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.” She said the county offered only one nonpunitive reason for posting Houston’s mug shot and personal information: transparency, which Berzon called "quite a vague concept.”