A Free Press-led battle over the public's right to see mug shots of criminal defendants is back before a federal appeals court today, only this time the media company has loads of backup — roughly 60 news organizations have joined in the fight.
At issue is a policy by the U.S. Department of Justice, which has refused to release mug shots of criminal defendants on privacy grounds, even though courts have repeatedly ruled that the public has a right to see those photos. The latest such ruling came in August, when a three-judge panel of the U.S. 6th Circuit Court of Appeals ruled in favor of the Free Press, but still urged the full court to take up the issue.
So today, a panel of all 15 judges in the 6th Circuit is hearing arguments from both sides in a case that pits the public's right to know against a defendant's right to privacy. Backing the Free Press are 59 news organizations and various associations, which filed briefs in the case in support of the public's right to see mug shots.
"The Free Press ... has been fighting for openness and transparency on this issue for over 20 years," said Free Press attorney Herschel Fink, who noted this is an issue with federal authorities, not state.
"Mug shots have been released by state jurisdictions, including Michigan, for over 100 years. And criminal defendants have no reasonable expectation of privacy in who they are as individuals accused of crimes by the federal government," Fink said. "People have a right to know who the government is prosecuting, and for what. Booking photos tell the 'who' story in a way that a (defendant's) name alone can't. They literally put a face on the government's prosecution, all the better for the public to see what the government is up to."
The DOJ disagrees and has argued repeatedly that criminal defendants have a privacy interest in preventing the release of their booking photos under the federal Freedom of Information Act. The DOJ argues those privacy rights are protected during the entire criminal justice process — from when the person is arrested and charged to conviction or acquittal.
In August, the 6th Circuit ruled in favor of releasing mug shots, but still conceded that defendants are entitled to privacy rights, noting that the federal Freedom of Information Act includes a provision for excluding the release of material collected for law enforcement purposes if that release "could reasonably be expected to constitute an unwarranted invasion of personal privacy."
"Booking photographs," the judges wrote, "convey the sort of potentially embarrassing or harmful information protected by the exemption: they capture how an individual appeared at a particularly humiliating moment immediately after being taken into federal custody."
Moreover, they wrote, booking photographs are available on the Internet long after a case ends.
The controversy involves the booking photos of former Detroit Mayor Kwame Kilpatrick; his father, Bernard Kilpatrick, and his longtime contracting friend Bobby Ferguson, as well as the photos of Detroit-area police officers who were indicted on federal charges.
The Free Press filed a Freedom of Information Act request in 2012 for the defendants' mug shots with the U.S. Marshal's Office while all three men were standing trial on numerous public corruption charges. But the U.S. Marshal's Office denied the request. So the Free Press, which has won four lawsuits over the issue, sued again.
The Free Press is challenging a booking-photograph disclosure policy by the U.S. Marshals Service. The policy states that once a prisoner has been arrested, “the general rule is that no release should be made because booking photographs of that prisoner to the media would not serve law enforcement purposes.”
Washington, D.C., appellate attorney Bob Loeb, of the law firm Orrick, Herrington & Sutcliffe, is arguing the case on behalf of the Free Press.
The Free Press has sued over the same issue three times before. In 1996, the U.S. 6th Circuit Court of Appeals ruled that mug shots should be made public. After the Justice Department again stopped providing mug shots in 2005, the Free Press sued again — and the government changed its mind, agreeing to honor mug shot requests. But then in 2012, the DOJ changed its mind again, triggering another suit.