On Wednesday the Wall Street Journal’s Law Blog wrote about an emerging circuit split over the issue of whether the “Feds May Withhold Prisoner Mugshots.” In a decision issued the same day, the Tenth Circuit joined the Eleventh Circuit in finding that detainees have a right to privacy in their booking photos. World Publishing Co. v. Dep’t of Justice, No. 11-5063 (10th Cir. Feb. 22, 2010) (finding that the privacy interest in the photos outweighs the public’s interest in disclosure); Karantsalis v. U.S. Dep’t of Justice, 635 F.3d 497, 499 (11th Cir. 2011) (per curiam) (denying a reporter’s request for the mugshot of a man who had pleaded guilty to securities fraud for the same reason).
The Sixth Circuit, on the other hand, has taken the opposite position, holding “that disclosure of a booking photo ‘in an ongoing criminal proceeding . . . does not implicate privacy rights.'” Detroit Free Press, Inc. v. Dep’t of Justice, 73 F.3d 93, 97 (6th Cir. 1996).
Why would anyone other than, perhaps, celebrity gossip columnists want to see someone else’s mugshot? The World Publishing Company offered the Tenth Circuit no fewer than nine public interests at stake:
(1) determining the arrest of the correct detainee
(2) detecting favorable or unfavorable or abusive treatment
(3) detecting fair versus disparate treatment
(4) racial, sexual, or ethnic profiling in arrests
(5) the outward appearance of the detainee; whether they may be competent or incompetent or impaired
(6) a comparison in a detainee’s appearance at arrest and at the time of trial
(7) allowing witnesses to come forward and assist in other arrests and solving crimes
(8) capturing a fugitive
(9) to show whether the indictee took the charges seriously
It’s worth noting that just last month the Supreme Court passed up a chance to resolve this circuit split by denying cert in Karantsalis. 2012 WL 171139 (U.S. Jan. 23, 2012). As for the Tenth Circuit’s decision to protect the privacy of mugshots, the Journal believes that “it’s anyone’s guess whether the Supreme Court would take the case” if Tulsa World decides to appeal.
As an added bonus, here is a sampling of some of the more memorable mugshots made public over the years, for your viewing pleasure:
Actor Nick Nolte.
Microsoft founder and philanthropist Bill Gates.
Legendary crooner Frank Sinatra.
[*Hat tip to Lee Beck over at http://www.fedregsadvisor.com/].