The Ninth Circuit, in Houston v. Maricopa,[1] concluded that an arrestee plausibly pleaded a substantive due process claim against a county based on pretrial punishment when the county posted the arrestee’s photo on its publicly accessible website, along with certain identifying personal information.
Background
The Maricopa County (Arizona) Sheriff’s Office posts photographs of arrestees on its website, accompanied by identifying information, for several days after an arrest. These identified photographs are often gathered by other internet sites and thus remain available after they are removed from the County website, even if the arrestee is never prosecuted or convicted.
In January 2022, Phoenix police arrested Brian Houston and charged him with assault. During Maricopa County’s jail booking process, Houston’s photo was taken and posted, alongside many others, on the County’s publicly accessible “Mugshot Lookup” website. Next to the mugshot photo were Houston’s full name, birthdate, and an entry under “Crime Type” describing the category of his alleged offense. Pushing a “More Details” button would have revealed Houston’s sex, height, weight, hair color, eye color, and the specific charges on which he was arrested. The post remained online for approximately three days, pursuant to the Sheriff’s Office’s regular practice. Houston was never prosecuted on the charges noted on the post, which were later dropped.
In May 2022, Houston filed a putative class action under 42 U.S.C. section 1983 and Arizona law against Maricopa County and Sheriff Paul Penzone (collectively, the “County”). Houston’s complaint alleged inter alia that the County’s conduct violated due process under the Fourteenth Amendment. Houston alleged that the County’s “Mugshot Lookup” post caused him “emotional distress and public humiliation,” “permanently damaged” his “business and personal reputation,” and “placed [him] at risk of identity theft, fraud and extortion.” He asserts that at least one third-party website “scraped” his mugshot and personal information, and that the County was aware such practices occurred. Houston describes Maricopa County as a “scraping” hotspot, such that “the notorious Mugshots.com website[] purports to publish the booking photos and arrest information of close to one million Arizona residents—the vast majority (834,000) from Maricopa County alone.”
The District Court granted the County’s motion to dismiss the operative complaint and denied Houston’s motion for class certification as moot. Houston appealed, seeking review of the dismissals of his substantive due process and other claims.
Discussion
Houston on appeal asserted, among other things, a substantive due process claim. The Ninth Circuit Court of Appeals initially explained that the Due Process Clause protects pretrial detainees from punishment before adjudication of guilt. See Bell v. Wolfish, 441 U.S. 520, 535 (1979). To constitute punishment, a government action must (i) harm a detainee and (ii) be intended to punish him. See Demery v. Arpaio, 378 F.3d 1020, 1029 (9th Cir. 2004). The government need not expressly state its aim to punish; instead, courts assess punitive purpose by considering whether the challenged conduct operates as punishment or “whether it is but an incident of some other legitimate governmental purpose.” Bell, 441 U.S. at 538.[2]
Harm
The Ninth Circuit considered the first Bell prong. The Court observed that in its previous decision in Demery, pretrial detainees challenged Maricopa County’s installation and use of jail webcams on substantive due process grounds. Using in-jail cameras, the County publicly livestreamed footage of the jail’s holding cells, bunkbeds, pre-intake areas, and intake areas. Detainees were filmed throughout their detention, including while being booked, photographed, fingerprinted, and subjected to pat-down searches. In affirming a preliminary injunction, Demery held that Bell’s harm prong was satisfied because “[e]xposure to millions of complete strangers . . . as one is booked, fingerprinted, and generally processed as an arrestee . . . constitutes a level of humiliation that almost anyone would regard as profoundly undesirable.” Id. at 1029-30. Such online exposure “significantly exceed[ed] . . . the inherent discomforts of confinement.” Id. at 1030.
Here, Houston alleged (and the appellate court took as true in its review of the District Court’s dismissal) that the County’s actions had caused and would continue to cause Houston to suffer harm and public humiliation. The Ninth Circuit stated that as in Demery, the County’s post on its “Mugshot Lookup” exposed Houston’s image and the fact of his arrest to the “millions of…strangers” able to access the Sherriff’s public website online, triggering discomfort that “almost anyone would regard as profoundly undesirable.” Id. at 1029-30. The Court observed that unlike the livestreamed footage in Demery, the distributed image of Houston identified him personally by name and birthdate, making his “Mugshot Lookup” record immediately searchable. This exposure-based harm, the Court concluded, fell well within—and in one respect exceeded—the humiliation and discomfort recognized as actionable harm in Demery. The Ninth Circuit observed that courts have long recognized the harm in publicly circulating photographs of arrestees before trial, citing cases[3] that indicated to the Court here a historical concern that without a particular justification for publishing an individual’s mugshot, a general practice of doing so upon arrest “constitutes an unnecessary and unwarranted attack upon [a person’s] character and reputation.” McGovern v. Van Riper, 137 N.J. Eq. 24, 46, 43 A.2d 514 (Ch. 1945).
The Ninth Circuit also remarked that the “humiliation-based harm from the County’s ‘Mugshot Lookup’ post is compounded by the specific reputational harms Houston alleged.” Houston stated that the County “permanently damaged” his business and personal reputation by posting his mugshot and personal information. Demery recognized that broadcasting personal images of pretrial detainees online “increase[s] exponentially the number of people observing detainees, and also alter[s] drastically the classes of people who can watch the detainees.” 378 F.3d at 1030. The Court here expressed that the same issues existed with the mugshots and personal information posted on the County’s public “Mugshot Lookup” page. An “exponential[] . . . number” of viewers worldwide could access the site, including Houston’s “friends, loved ones, co-workers and employers” and others who both influence and are influenced by his reputation. Id. at 1029-30. The Ninth Circuit concluded that under the circuit’s case law, Houston’s allegations of harms by the County had satisfied Bell’s first prong at the pleading stage.
Whether Government Action Intended to Punish Detainee
The second Bell prong required the Court to determine whether the County’s “Mugshot Lookup” posts were intended to punish pretrial detainees. See Bell, 441 U.S. at 538. The Ninth Circuit explained that do so, it must decide whether punitive intent could be inferred from the lack of rational relation to a legitimate nonpunitive government interest. See id. at 538-39.
Continuing its assessment of the second prong, the Ninth Circuit observed that the County had provided only one nonpunitive reason for posting Houston’s mugshot and personal information online. To justify its mugshot posting practice, the County asserted that its posts promoted “transparency” in the criminal legal system. The Court evaluated what information was at issue, to whom such information was being revealed, and the purpose such disclosure served.
The Court of Appeals found that the complaint plausibly asserted that the information the County posted about Houston was detailed and highly personal, yet globally accessible, as the information posted was accessible to anyone with an internet connection. The Court explained that to defeat an inference of punitive intent, the County must articulate some specific concept of transparency that justifies public disclosure of this information to this audience. However, the Court determined that the County had not convincingly done so at this stage of the case.
The Court explained that the cases the County cited invoked transparency in the context of public safety, an interest the County did not mention in its arguments about transparency. Smith v. Doe concerned a challenge to a sex-offender registration statute that made public information about convicted sex offenders.[4] Smith emphasized that the “[m]ost significant factor” supporting exposure of the information at issue in the case before the Court was “public safety, which is advanced by alerting the public to the risk of sex offenders in their communit[y].”[5] Both Smith and Doe v. Garland[6]arose in postconviction postures, where the notion that transparency is public-safety-promoting is bolstered by the fact of a previous conviction. Here, in contrast, Houston was arrested but not prosecuted; he had not been convicted when the County published its post and he never was. Paul v. Davis invoked transparency as a pertinent government interest in the context of the government’s public circulation of information about arrestees.[7] In Paul, police distributed flyers to local businesses with Davis’s name and photo after his arrest but before trial, identifying him as an “activeshoplifter[].” As in the County’s other cited cases, transparency in Paul was closely linked to public-safety concerns: the challenged distribution of Davis’s personal information was limited to businesses with a specific interest in that information—to avoid being robbed or to report a robbery.
The Ninth Circuit observed that the County did not assert that its posting of Houston’s arrest record online promoted public safety in Maricopa County. Nor did the County offer examples where transparency alone—absent a connection to public safety—had been accepted as a legitimate nonpunitive interest for Bell purposes, much less in a pretrial context. The Court found that this lack of support for the County’s purported transparency goal undermined the County’s contention that “Mugshot Lookup” posts did not punish pretrial detainees.
Rational Relation
The Court observed that Houston’s mugshot and personal information were posted on “the broad spectrum of the internet,” with global public access, and he was subject to “broad public exposure.” Id. at 1032 & n.6. The Court found that no reasonable connection existed between “displaying images of [Houston] to internet users from around the world,” accompanied by personally identifying details, and educating Maricopa County residents about how the government generally, or the criminal legal system in particular, operates. Id. at 1032. Moreover, even as raw data, the posts did not provide useful information for understanding criminal enforcement activity in Maricopa County.
Moreover, when evaluated based on government transparency, the Court found the County’s “Mugshot Lookup” post for Houston to be both overinclusive and underinclusive. Houston’s post included a significant amount of personal information (weight, birthdate, height, eye color, and hair color) the Court deemed unconnected to any theory of government transparency. The County did not demonstrate why this level of granular detail about Houston’s body and personal identity rationally furthered an interest in government transparency.
Thus, even if transparency was a legitimate government interest, the Ninth Circuit stated that no rational relationship existed between that goal and the County’s “gratuitous inclusion” of at least some of Houston’s personal information in its public “Mugshot Lookup” post. The Court concluded that absent a rational relation between the post and the County’s interest, as articulated at this stage of the case, an inference that the post was motivated by punitive intent was plausible and so precludes dismissal. The second prong of the Bell test was therefore satisfied. The Ninth Circuit thus concluded that Houston adequately pleaded a substantive due process claim based on pretrial punishment under Bell and Demery. Accordingly, the Ninth Circuit Court of Appeals reversed the District Court’s dismissal of Houston’s claim that the County violated his right to substantive due process and remanded for further proceedings.
HOW THIS AFFECTS YOUR AGENCY
With this perhaps impactful decision, the Ninth Circuit found that Maricopa County’s policy of posting photographs as well as certain personal information of arrestees was not constitutionally permissible based on the facts alleged. Of specific note, the Court stated that a bare allegation of publication for “transparency” purposes was insufficient at the pleading stage. The Court noted that prior decisions, which upheld the legitimacy of posting arrestee information were tied to public safety concerns, such as preventing additional criminal activity by the person or to apprehend a person fleeing from justice. Agencies that post similar information and photos on public websites may wish to consider changes to their practices so as to conform to the guidance set forth in this decision. Consultation with your retained legal counsel may be prudent in examining agency policy and practices on this issue.
As always, if you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446–1400 or via email at (jrt@jones-mayer.com).
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[1] 2024 U.S. App. LEXIS 22564 (9th Cir. Sep. 5, 2024).
[2] The opinion notes that an additional consideration is whether the government action “appears excessive” in relation to its stated purpose. Bell, 441 U.S. at 538 (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963)). Because on appeal, Houston argued only that no legitimate nonpunitive government interest existed, the Ninth Circuit did not address the excessive action consideration.
[3] See United States v. Kelly, 55 F.2d 67, 70, Treas. Dec. 45429 (2d Cir. 1932) (noting instructions “not to make public photographs” of pretrial detainees to “prevent the misuse of the records”); State ex rel. Mavity v. Tyndall, 224 Ind. 364, 381-82, 66 N.E.2d 755 (1946) (recognizing that exhibiting a pretrial detainee’s picture in a rogues’ gallery could be “so serious a violation of [his] right of privacy as to justify judicial protection”); Itzkovitch v. Whitaker, 115 La. 479, 481, 39 So. 499 (1905) (“There can be no public good subserved by taking the photograph of an honest man for [public display].”); McGovern v. Van Riper, 137 N.J. Eq. 24, 45, 43 A.2d 514 (Ch. 1945) (“[A] person is defamed by the taking and widespread dissemination of his . . . photographs for criminal identification purposes before conviction.”).
[4] 538 U.S. 84, 89 (2003).
[5] Id. at 99, 102-03 (alterations in original) (first quoting United States v. Ursery, 518 U.S. 267, 290 (1996), and then quoting Doe I v. Otte, 259 F.3d 979, 991 (9th Cir. 2001)).
[6] 17 F.4th 941 (9th Cir. 2021). In Doe, also cited by the County,the plaintiff challenged an FBI press release that included his name, employment history, charge, and guilty plea. Id.,at 944.
[7] See 424 U.S. 693, 695-96 (1976).