Automatic Disclosure of “Mugshots,” A Blatant Due Process Violation

 

Introduction

 

“We have come to live in a society based on insults, on lies and on things that just aren’t true. It creates an environment where deranged people feel empowered.”[1] Corruption, injustice and utter disregard for some of the most basic human rights is continually infringed upon by federal, state and local law enforcement. Law enforcement fosters disrespect for themselves through this practice. I just pray that this stops before there is another Brian Banks.[2]  Or, on the other hand, the system produces another O.J. Simpson result.[3]

“Publishing mugshots before suspects have been tried undermines a sacred tenet of American jurisprudence.”[4] The automatic disclosure of mugshots is a U.S. Constitutional Due Process Clause violation and therefore unconstitutional. Booking photos are more commonly known as “mugshots.” They are the photograph taken during the intake process of arrestees by law enforcement. Upon arrest, most state governments immediately release mugshots on the internet. The U.S. federal government no longer releases mugshots of arrestees unless, there are extenuating circumstances (i.e. fugitive from justice) because they are “the vulnerable and embarrassing moments immediately after [an individual is] accused, taken into custody, and deprived of most liberties and fit squarely within this realm of embarrassing and humiliating information.”[5]

1. The Background of “Mugshots”
   1. Legitimate purposes:

Whenever the government seeks to impose its power or interfere in the lives of citizens, it

must do so within the bounds of the U.S. Constitution, and that requires laws be “rationally related to legitimate government interests.”[6] Objectively, it is a legitimate government interest for the authorities to take a mugshot during the intake process of an arrestee. The sole purpose of which must be for release if an accused absconds or is generally a fugitive from justice. There is no other legitimate state purpose in the pre-hearing release of mugshots, none. To the contrary, in a charge anyone for anything without even basic probable cause atmosphere, the prehearing release of mugshots only serves an abhorrent agenda or equally as worse the local incompetent law enforcement officer.

If there is a conviction and the nature of the charge warrants notice to the public, then it would be a legitimate state interest to release a mugshot after the conviction, but not before![7] However, this still does not objectively sanction the pre-hearing release of mugshots. Notice to the public must also serve a legitimate state purpose in that the notice should be for the purpose of preventing recidivism.

1. Illegitimate purposes:

The illegitimate purposes related to the pre-hearing release of mugshots is insurmountable

and undeniable. Today, there are people working within our government that would utilize their  entrusted power to harass their political opponents for no other reason than opinions. Not the law, and do so in the most unethical, unprofessional and generally underhanded ways.[8] What is immensely important with that assertion is that there really is no legitimate state purpose in the pre-hearing release of mugshots because the motives of authorities in our nation is not always legitimate, and has amounted to nothing short of an abuse of power on numerous occasions.[9]

Police arrested 3,621,299 people in 2020 according to the Federal Bureau of Investigation.[10] Unfortunately, the FBI does not track through the Uniform Crime Report the number of citizens that have been arrested, but not convicted. Because, that would be a true demonstrator of the economic impact of these unconstitutional pre-hearing disclosures. This seems convenient as a self-serving law enforcement funding inducer, of turning a blind eye to the inaccuracies of law enforcement conduct. The more credibility that is provided to law enforcement, the more non-allocated funding law enforcement will agencies receive. Where funding allocation towards accuracy in their official conduct should prevail, instead they spend on militarizing and firearm wielding robots.[11]

1. Damages:

The definition of “what damages are?” related to mugshots can be straightforward and at the same time, elusive.[12] The real question of damages must be a question placed to a jury.[13] The Supreme Court of the United States has examined damages in multiple defamation suits and, as part of that analysis utilizes all of the facts and circumstances surrounding a case. For example, the application of a “malice standard.”[14] If an official state actor, like a law enforcement officer, is acting without diligence or worse under unapplicable political motivation or gross incompetence there is malice.

In any event, the pre-hearing release of mugshots really amounts to an extreme defamation by state governments. The monetary economic damages of which are astronomical. Most employers do a background check of some sort on new employees. Or, at least a quick internet search. If a mugshot of a potential employee pops up regardless of innocence, they are less likely to get hired. That fact is undeniable. For that sole purpose, there serves little legitimate argument that there is no “government taking” when there is a pre-hearing release of a mugshot. A “government taking,” is what triggers the right to Constitutional Due Process.[15]

Affecting someone’s employment prospects is certainly a matter the Supreme Court of the United States has recognized as a Constitutional Right.[16] Because, it is not the governments place to take from citizens without a hearing. Government taking without an opportunity to be heard, is a general usurpation of the Declaration of Independence, the Due Process Clause of the Fourteenth Amendment and the Universal Declaration of Human Rights.

1. Freedom of Information Act (FOIA)

Legislatures rest their analysis on the reasoning of government transparency as to why a prehearing release of mugshots is warranted. However, this is a false analysis, because mugshots are minimally related to the government conduct at the center of FOIA’s reasoning. FOIA was enacted to shed light on government conduct not to harass the natural born United States Citizen.

1. Background of FOIA:

The Freedom of Information Act was enacted so that concerned citizens could monitor government conduct. Previous to FOIA government agencies had a tendency not to disclose requested information to the public.[17] The Freedom of Information Act was meant to change that. Upon the enactment of FOIA, state legislatures followed suit and some had already enacted their own form of FOIA. Unfortunately, that has resulted in a disjointed conflagration of interpretations by Federal Courts regarding FOIA and a whole separate analysis for State Courts.

FOIA has an exemption to disclosure that mentions privacy. This exemption directly, references that which would “…constitute an unwarranted invasion of personal privacy.”^[18] Since the establishment of this exemption to FOIA disclosure, only one of the four Supreme Court of the United States cases have favored disclosure over non-disclosure.^[19] The Court in the unfavorable non-disclosure case of Department of the Air Force v. Rose, the Court relied on the legislative history for statutory interpretation.^[20]

1. Privacy Analysis and FOIA:

The Court in World Publ’g Co. v. United States DOJ asserted that there is a test in order to determine if there is an unwarranted invasion of personal privacy in favor of non-disclosure.  “A court must (1) determine if the information was gathered for a law enforcement purpose; (2) determine whether there is a personal privacy interest at stake; and if there is (3) balance the privacy interest against the public interest in disclosure.”[21]

The first prong of this test is satisfied, for there is little dispute that mugshots are taken for a legitimate law enforcement purpose. For example, if an accused attempts to abscond, generally become a fugitive from justice or escape from custody. For those reasons a mugshot should be taken to later release to the public if the authorities need to look for someone. Therefore, it is reasonable that law enforcement take mugshots.

For the second prong of the test, the Court found that "the fact that an event is not wholly private does not mean that an individual has no interest in limiting disclosure or dissemination of the information."  A “booking photo is intended for use only by a specific and small group of people—further reason for a court to protect an individual's privacy interest in that photo.”[22] Just because there is a legitimate government interest rationally related to mugshots, does not mean the government should be disclosing these mugshots publicly to just anyone for any reason automatically.

An analogy to this assertion is that in all jurisdictions a civil litigant or person of subject in litigation has a right that their social security number not be disclosed publicly, why should a mugshot be any different absent purpose and circumstance?[23] If you have a right to privacy in your social security number, a number on a piece of paper, then in what realm does logicality proffer that you have no right to privacy in a photo taken in one of the most vulnerable moments? Through very basic reason, we see that there is a foundational privacy interest.

The third and final prong of the test dictated is the balance of the first two. The Court opines that release of a mugshot:

“is not fostered by disclosure of information about private citizens that is accumulated in various governmental files but that reveals little or nothing about an agency's own conduct. In this case—and presumably in the typical case in which one private citizen is seeking information about another—the requester does not intend to discover anything about the conduct of the agency that has possession of the requested records.”[24]

In most of the cases surrounding this matter, it is the media that is the proponent of automatic disclosure. Congress did not intend for those that run the national media’s schadenfreude departments to be served by FOIA, to sully the good names of people whom may themselves be the victim of some setup, predatory act, lack of law enforcement diligence or general lie.[25] Not everyone who has had their mugshot taken has been the subject of proper cause, objective law enforcement action or general fairness and reason. Some have been the subject of a predatory act of the accuser.[26]

In sum, we see by careful examination of the case law surrounding privacy and the Freedom of Information Act, that controlling Courts recognize a legitimate privacy interest in mugshots and in favor of non-disclosure. Courts have had this issue presented to them numerous times throughout the history of FOIA and more often than not they find in favor of the individual’s privacy interest. The issue is no longer at the federal level but at the state level.

• United States Constitution

Due process is a basic requirement under the Fourteenth Amendment of the U.S. Constitution.[27] It is well founded that your name, image and likeness (a photo of you) is your property and especially if a person or entity attempts to use it for commercial purposes or if the government seeks to deprive you of your property.[28] This is true both domestically, internationally and biblically.[29] However, for the purposes of this section we will focus on the U.S. Constitution and the rights the Founders and Veterans risked everything for.

1. Background of Due Process:

The Due Process Clause of the United States Constitution provides foundational protection against arbitrary decisions by legislatures, law enforcement and institutional injustice.[30] Due process is a basic requirement under the U.S. Constitution that “a person may not constitutionally be deprived of “life, liberty or property” by governmental action without notice and a meaningful opportunity to be heard.”[31] The following case is controlling law to determine if the Due Process Clause of the U.S. Constitution applies to a government taking.

In Mathews v. Eldridge, the court prescribes a test as to whether a matter is a Due Process violation.[32] The factors that are described by the court for due process are essential to our understanding of what due process protects. Due Process protects against erroneous deprivations by the government. The Court described the following test:

“…due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”[33]

1. Analysis of Due Process to Mugshots:

When applying the Mathews test we look at each factor. With the first factor, it becomes clear that the private interest affected by law enforcement charging and arresting an individual; and then releasing a mugshot without a hearing is an erroneous and capricious deprivation. The systemic inherent effect on the future trajectory of a person who has had their mugshot released is obvious, and certainly so in the internet age. In other words, there is a clear taking by the government when they post these photos on the internet. For anytime something is posted on the internet, it is there in perpetuity. It is there for any future employer, associate, third party or those that would seek to defame but for the sole purpose of their own salaciousness. The first prong of the Due Process Clause test is violated, unequivocally.

Next, we turn to the Courts second factor in Mathews, which is far simpler to address. This factor, when evaluating mugshot releases, is clearly violated and requires little discussion because there is no hearing or procedure whatsoever. Currently, there is no hearing before the government releases a mugshot to the public. Unless a citizen is arrested by the Federal Government, their mugshot is released.[34] The legislature is supposed to be bound by the United States Constitution and has utterly denied and ignored this. They have achieved this by disregarding the right to cross-examine evidence in an open public court.[35]

Finally, we address the Courts last prong of the Mathews test as to whether a matter violates Due Process. The Government has no legitimate interest in the pretrial, pre-hearing release of mugshots. To the contrary, this has economic implications on those that are falsely accused and matters that are generally unfounded. Unless a person is convicted or a fugitive from justice there serves no legitimate state interest in the release of mugshots. And, let’s say hypothetically for some unclear reason that the government interest were served by releasing these mugshots. The burden of including a hearing on the matter is de minimis and could easily be addressed at the first hearing related to matters. Our judicial system in general is a slow engine, there serves no legitimate purpose in the selective outrage of expeditiously releasing mugshots as opposed to waiting for a proper hearing. In any event, the burden would not be great for courts but that’s only if you get to that prong of the test, which we do not because of the former.

1. Analysis Competing Opinions:

The United States Supreme Court has addressed the issue of mugshot disclosure and Due Process in Paul v. Davis in 1976. In a Split decision the Court asserted that a person does not have a Due Process interest in that “The words "liberty" and "property" as used in the Fourteenth Amendment do not in terms single out reputation as a candidate for special protection over and above other interests that may be protected by state law.” [36] But, we must bear in mind that Justice Rehnquist wrote this opinion well over forty seven years ago in 1976, decades before the public use of the internet and therefore the employment effects of these acts not fully recognized as herein today. To the contrary, in 1976 TV’s were large cub boxes, most got their news from a piece of paper and phones were tied to wires.

The employment discussion is important, because today you will be looked over for employment based solely on things like internet besmirchments.[37] And, in Justice Rehnquist’s opinion he specifically cited employment as a reasonable Due Process applicable right in that the “drastic effect of the "stigma" which may result from defamation by the government in a variety of contexts, this line of cases does not establish the proposition that reputation alone, apart from some more tangible interests such as employment.” Today the internet is used to harass on a level not cognizable in 1976, nefarious groups can incessantly molest others through its maleficent use, and the authorities do little to curb this.[38] In 1976, it just was not the case as today.

Within Paul v. Davis, the Court specifically references cases in relation to privacy law like Roe v. Wade and other cases that the authority has since changed. The Court opines about privacy law and this is also a vital consideration because the evolution of privacy law since 1976 has been substantial.[39] The Supreme Court of the United States, over the decades has increasingly recognized privacy interest since it issued the Davis opinion.

Furthermore, three Justice’s Brennan, Marshall and White dissented in Paul v. Davis. The distinguished dissenting justices with Brennan writing, opined that “The Court accomplishes this result(depriving citizens of a right to a hearing) by excluding a person's interest in his good name and reputation from all constitutional protection, regardless of the character of or necessity for the government's actions. The result, which is demonstrably inconsistent with our prior case law and unduly restrictive in its construction of our precious Bill of Rights, is one in which I cannot concur..”[40] As with a lot of matters in the law, from time to time it becomes necessary to reexamine issues that have been presented in the past.[41] Otherwise old and generally antiquated opinions would remain in effect indefinitely.

1. The Supremacy Clause

The U.S. Constitution, because it is the supreme law of the land has in its inherent ability and applicably the authority to invalidate state law. Because, “the court is “bound” by the statute; the legislature is “bound” by the constitution.”[42] The Court can invalidate state statutes when they are found to violate the United States Constitution.[43] This is known as judicial review. Judicial review is a tool used by courts and is a part of the basic notion of checks and balances in the government.[44] Because, when we think about our rights as U.S. citizens, we should not be thinking about one branch of government over the other. The Founders intended for each branch of government, the legislature, the executive, and the judiciary to protect our rights as U.S. Citizens.

Nothing is safe while legislature is in session and the U.S. Supreme Court understood this over two hundred years ago when it issued its opinion in Marbury v. Madison. In Marbury, the Court first established that it had the power to overturn an act of legislation when it violated the U.S. Constitution.[45]

1. Federal Law Enforcement Standard:

After significant opposition from the media, Federal law enforcement no longer

automatically release mugshots of arrestees. Today, if you are arrested by federal law enforcement your mugshot will not be released automatically.[46] This is also true in two states, but not most.[47]

1. Th Internet Mugshot Industry
   1. Background Criminal Liability:

Companies like Arrests.org post photos of arrested citizens on the internet and then utilize ad revenue generated by these postings “click bate” to make money. Also, they charge persons money that would like the mugshots removed.[48] This is a form of extortion, but law enforcement has failed to prosecute this except for a few circumstances.^[49]

1. Background Civil Liability:

Often, in order to instill real change civil liability must be pursued by interested parties. Because, if you do not sue tortfeasors and falsehood perpetuators, everyone else will believe that what they are doing is what is correct. Or, generally not hurting anyone and the conduct will continue. Wrongdoers must not be permitted to profit from their own wrongdoing.

1. Analysis Defamation:

Defamation is a false statement written or spoken about another person.[50] There have been successful defamation suits against the mugshot industries publishing’s.[51] Defamation can either be libel or slander. The dissemination of Mugshots is libelous. And, certainly if an accused has been done so falsely, for as the Supreme Court has opined “Imputing criminal behavior to an individual is generally considered defamatory per se.”[52] If an individual is later exonerated for the reasons a mugshot was taken then the civil defamation liability is clear and absolute.

2. Analysis ‘Name, Image, Likeness’/Misappropriation:

In the United States, most States and the Federal Government have laws against using another person’s photo without their permission in a trade or business. Often this is referred to as Misappropriation. In Virginia, this is § 8.01-40 or the unauthorized use of name or picture of any person, this statute also serves as criminal culpability.[53] Punitive damages are awardable under this section. The law is fairly straight forward in this area. If you do not have permission to use another person’s photo, your breaking the law and at a minimum committing a tort. At a maximum you are committing a misdemeanor. Criminal acts are prima facie torts and damages are most certainly recoverable against the culpable.

3. Analysis Intentional Infliction of Emotional Distress:

The online mugshot industry is tortiously and continuously committing intentional infliction of emotional distress. The elements for Intentional Infliction of Emotional Distress are “(1) the wrongdoer's conduct is intentional or reckless; (2) the conduct is outrageous and intolerable; (3) the wrongful conduct and the emotional distress are causally connected; and (4) the resulting distress is severe.”[54]

Applying these elements to the internet mugshot industry is no stretch. They corner their conduct on the notion that if an accused feels enough pain they will pay to have their mugshot removed from the website. That is their business model. This is nothing short of criminal extortion and prima facie Intentional Infliction of Emotional Distress.

4. Analysis Pursuing judgements in foreign based entities:

The internet mugshot industry has been sued more times than we can reference in this paper. For that reason, they have sought to conceal their ill-gotten gains through foreign registered entities. Currently, Arrests.org an internet mugshot company, befuddles their plunder in Saint Kitts & Nevis. Saint Kitts & Nevis is one of these shelter islands in the Caribbean. People seeking to hide their money register companies there, because if they did not, they would be sued into bankruptcy. If you want to know if a company is legitimate, look at where they keep their money. The Federal Communications Commission and the Federal Bureau of Investigation should do more to stem the impact of foreign based entities smearing citizens on American soil. This is equivalent to breaking the law and getting paid to do it.

1. International Law[55]

 

“Human rights are rights inherent to all human beings, regardless of race, sex, nationality, ethnicity, language, religion, or any other status. Human rights include the right to life and liberty, freedom from slavery and torture, freedom of opinion and expression, the right to work and education, and many more.  Everyone is entitled to these rights, without discrimination.”^[56] We must not only apply human rights internationally, they mean as much locally, with our neighbors, the people across town and throughout the nation.

In this section we will examine the applicability of international law to the automatic disclosure of mugshots. Specifically, the Universal Declaration of Human rights, right to dignity, due process and equal protection of laws. The Christian worldview is also applicable to the international law analysis, “love your neighbor as yourself.”[57]

1. Universal Declaration of Human Rights

 

“We the Peoples of the United Nations Determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and to promote social progress and better standards of life in larger freedom.”[58] The preamble of the UDHR must apply to all generations, the ones that drafted the UDHR and in perpetuity.

1. Analysis Article 1: Dignity

 

According to Article One of the Universal Declaration of Human Rights, “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”

Article One is unequivocally violated when we examine the unreasonable and illegitimate state purpose of automatic booking photo disclosures. “If there are no constitutional restraints on such oppressive behavior, the safeguards constitutionally accorded an accused in a criminal trial are rendered a sham, and no individual can feel secure that he will not be arbitrarily singled out for similar ex parte punishment by those primarily charged with fair enforcement of the law.”[59]

2. Analysis Article 7: Equal protection of Laws

 

According to Article Seven of the Universal Declaration of Human Rights, “All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.”

Equality in the law means that the law must be applied similarly to all parties. A person with ill intent should not be allowed to make a claim to the authorities that logically on its face makes no sense, and then hide their own identity whilst the person they accuse has their name dragged through the mud publicly with automatic booking photo disclosures. The truth of the matter is, that our law enforcement does not always act with fair enforcement of the law and sometimes acts under their own personal biases with no protection provided to the public. For this very reason, the power to destroy a persons career through automatic booking photo disclosures must stop immediately. This also has racial discrimination implications.

“As the drafting history (of Article 7) indicates, this clause was adopted with the understanding that it protected against propaganda of national, racial and religious hostility and hatred, as well as the understanding that although Article 19 protected freedom of expression, it did not protect expression that incites discrimination.”[60] Race based discrimination is enacted with automatic mugshot releases, it creates a stereotype perpetuated for minorities.[61]

Authorities put mugshots into computers using algorithms and face recognition technology.[62] These actions perpetuate a racist system by recycling old mugshots essentially recycling the past. Thus, because minorities are more likely to be detained and have their booking photo taken, this is a racist practice because the system is racist.

3. Analysis Article 10: Due Process

According to Article Ten of the Universal Declaration of Human Rights, “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.”[63]

This is highly similar if not the exact same right provided by the United States Constitution. The authorities are not to take from citizens unless they have been provided a fair hearing. “Police officials, acting in their official capacities as law enforcers, may on their own initiative and without trial constitutionally condemn innocent individuals as criminals and thereby brand them with one of the most stigmatizing and debilitating labels in our society.”[64] And, this is done in perpetuity thanks to the illegal online mugshot industry.

“The right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society.”[65] This applies under international law.“Observing that due process is an evolutionary concept that takes into account accepted notions of fairness, and recognizing the fundamental principle that all human beings should be free from arbitrary detention.”[66] Or, in this matter, the taking of property in perpetuity.

4. Analysis Article 12: Privacy

According to Article Twelve of the Universal Declaration of Human Rights, “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”

United States Federal Courts have directly addressed this issue, and since the last time the Supreme Court of the United States has addressed this issue, the privacy analysis has changed substantially:

"In the vulnerable and embarrassing moments immediately after an individual is accused, taken into custody, and deprived of most liberties, fit squarely within this realm of embarrassing and humiliating information. More than just vivid symbols of criminal accusation, booking photos convey guilt to the viewer. Indeed, viewers so uniformly associate booking photos with guilt and criminality that we strongly disfavor showing such photos to criminal juries. The Sixth Circuit has condemned the practice of showing 'mug shot' evidence to a jury as effectively eliminating the presumption of innocence and replacing it with an unmistakable badge of criminality. This alone establishes a non-trivial privacy interest in booking photos.”[67]

Then we can easily draw the analytical chain to a multi-day jury using a basic google search to find a mugshot photo of accused persons on the internet. A mugshots mere image projects guilt on to the viewer, this is prejudicial conduct. Even without any evidentiary indication, a viewer is likely to perceive an accused as guilty even though they themselves may be the victim of a crime perpetuated by the local medically diagnosed insane person filing false police reports or law enforcement officers lack of reasonable diligence.

The international community wants states to protect individual privacy. “States are required to provide to every person the right to a judicial remedy for breach of privacy rights.”[68]  Photographs are data, it is biometric data that is yours as a human being.[69] In the U.S. a person can go and have their record expunged after a case has been found not guilty, nolle prosse or dismissed. The expungement process only has the effect of a Court file being destroyed. What it does not do, is get back the release of booking photos. The expungement remedy provided in the United States is defunct and mostly useless. Expungement solely means a Court file being destroyed, this process has limited effect.

Conclusion

Your name, image, likeness is your property. When we apply the Christian Biblical Worldview perspective to property interest, "You shall not covet your neighbor's… nor anything that is your neighbor's," it becomes clear that the Law of Nature and of Natures God, through scripture fully intended for humans not to infringe on that which is another humans.^[70] To take something that is another humans without a full, fair and final hearing on a matter is not only contrary to the United States Constitution but also a direct affront to God’s law.

The scripture addresses infringement of dignity, “strength and dignity are her clothing, and she laughs at the time to come.”^[71] “So God created man in his own image, in the image of God he created him; male and female he created them.”^[72] God did not intend for humankind to degrade each other, and certainly not without proper cause. Let’s be clear, proper cause is not defined by  fleeting fickle current political opinion, or social media hysterical nonsense. Today’s practice of decimating a person that has not even been allowed a real opportunity to defend the accusations against them by releasing mugshots is against the Christian Biblical worldview.

So after examining the scripture related to dignity and property, God intended for humans to respect one another. The mugshot industry is contrary to that and thus contrary to God’s Law. Because, if God created humans in his image then he meant for his image through humans to be respected. Not only the property rights but also the more nuanced dignity rights. The injustice surrounding this practice is blatant. The law is not being used properly by releasing mugshots pre-hearing. This also breaks the social contract that we all have with each other and our government “the notion of agreement as the foundation of “just” or “legitimate” principles for governing society is the basis of the “social contract” tradition…” those in power are in breach of this contract.^[73] Thus, accordingly this is not good law.

The United States Constitution was signed on September 17^th, 1787. Since that day Jurisprudence has seen most of its protections muddled by Courts and Legislatures. We will continue our decent into tyranny controlled by those with malintent where the Constitutions basic principles mean nothing. Due Process of law is a basic principle that must not be diluted any longer. A small but at the same time significant secession from the powers that be incessant and generally cruel befuddlement of releasing their harassing photos is but little price to pay to make sure they are doing the right thing before they do it.

 

 

[1] Brett Samuels, Colin Powell: “We’ve come to live in a society based on insults, on lie,” The Hill, October, 31, 2018 at https://thehill.com/blogs/blog-briefing-room/414124-colin-powell-weve-come-to-live-in-a-society-based-on-insults-on-lies/

[2] Jason Kandel, Woman Who Falsely Accused Brian Banks of Rape Ordered to Pay $2.6M, June 15, 2013 at  https://www.nbclosangeles.com/news/local/woman-falsely-accused-brian-banks-rape-ordered-to-pay-26m/1971672/

[3] Ellie Cambridge, Joanne Kavanagh and Jennifer Roback, “Free Man” Where is O.J. Simpson now?, December 14, 2021 at https://www.the-sun.com/news/1586691/oj-simpson-who-where/

[4] Johnny McDevitt, Mugshot tabloids: defamation as the price for profitable 'schadenfreude'; Magazines access mugshots from police departments and print them for locals to see - but when they get it wrong, there are often little to no consequences. The Guardian. (September 4, 2016)

[5] Detroit Free Press, Inc. v. United States DOJ, 829 F.3d 482

[6] Washington v. Glucksberg, 521 U.S. 702, 728 (1997)

[7] Christina Locke and Bill F. Chamberlin, Safe from Sex Offenders? Legislating Internet Publication of Sex Offender Registries, The Urban Lawyer 39, no. 1 1–18 (Winter 2007).

[8] Tom Dart, Texas Governor Rick Perry has mugshot taken after indictment, The Guardian, (August 19, 2014) at https://www.theguardian.com/world/2014/aug/20/texas-governor-rick-perry-mugshot-indictment-rosemary-lehmberg; Heather Hamilton, WATCH: Ted Cruz Praises Twitter Files, says ‘Big Tech is losing their minds,’ Washington Examiner (February 14, 2023) at https://gazette.com/news/us-world/watch-ted-cruz-praises-twitter-files-says-big-tech-is-losing-their-minds/article_bf9b6c09-8185-55fe-96b5-18fe4ded06a2.html; David Malloy, Zuckerberg tells Rogan FBI warning prompted Biden laptop story censorship, BBC News (August 26, 2022) at https://www.bbc.com/news/world-us-canada-62688532

[9] Id.

[10] FBI National Press Office, FBI Releases 2020 Incident-based (NIBRS) Data, Federal Bureau of Investigation (December 6, 2021) at https://www.fbi.gov/news/press-releases/fbi-releases-2020-incident-based-data

[11] Chris Boyette and Zoe Sottile, San Francisco supervisors vote to allow police to use robots to kill, CNN (November 30, 2022) at https://www.cnn.com/2022/11/30/us/san-francisco-police-remote-control-robots/index.html

[12] George C. Christie, Injury to Reputation and the Constitution: Confusion Amid Conflicting Approaches, Michigan L. Rev. Vol. 75 No. 1 pp. 43-67 (November 1976).

[13] Id. at 53

[14] Id. at 59

[15] Mathews v. Eldridge, 424 U.S. 319, 334 (1976).

[16] Paul v. Davis, 424 U.S. 693 (1976)

[17] Kathryn Shephard, Mug Shot Disclosure Under FOIA: Does Privacy or Public Interest Prevail?, Northwestern Univ. L. R. Vol. 108, No. 1, 350 (2014).

[18] Id.

[19] Kathryn Shephard, Mug Shot Disclosure Under FOIA: Does Privacy or Public Interest Prevail?, Northwestern Univ. L. R. Vol. 108, No. 1, 353 (2014).

[20] Id.

[21] World Publ’g Co. v. United States DOJ, 672 F.3d 827, 2012.

[22] Id. at 828.

[23] CUS-SEP/OCT 01, pp. 48-50 and JCUS-SEP 03, pp. 15-16; Fed. R. App. P. 25(a), Fed. R. Bankr. P. 9037, Fed. R. Civ. P. 5.2, and Fed. R. Crim. P. 49.1.

[24] Supra, note 21 at 830.

[25] Belinda Palmada, Man’s life destroyed after woman falsely accused him of rape, News.com.au, (January 18, 2023) at https://www.news.com.au/world/europe/mans-life-destroyed-after-woman-falsely-accused-him-of-rape/news-story/9d5cd767fc69ab526c97d5cfd26cadc0

[26] Rachel Mahoney, Jury Finds Lynchburg Man Not Guilty Thursday, The News & Advance, (December 19, 2019); The Associated Press, After more than 70 years, 4 Black men wrongly accused of rape have been exonerated, NPR (November 22, 2021) at https://www.npr.org/2021/11/22/1058169726/groveland-four-exonerated; Cindy E. Rodriguez, Woman Who Falsely Accused Duke Lacrosse Players of Rape Charged With Stabbing Boyfriend, ABC News, (April 4, 2011) at https://abcnews.go.com/US/woman-accused-duke-lacrosse-team-members-rape-charged/story?id=13295161; Eugene J. Kanin, False Rape Allegations, Polygrah Vol. 30 Issue 3 163-171 (2001).

[27] Amendment 14, USCS Const. Amend. 14 (1868).

[28] Borger, John P., et al., RECENT DEVELOPMENTS IN MEDIA, PRIVACY, AND DEFAMATION LAW, Tort Trial & Insurance Practice Law Journal, vol. 39, no. 2 (2004)

[29] Loreto Corredoira, The Right of One’s Own Image in the Recent Cases of Sexual Harassment in Film Industry: Applying the European Theory of Concentric Circles to Celebrities (In Particular, Women), Journal of Information Policy, vol. 8, 384 (2018); Genesis 1:27 (King James)(“So God created man in his own image, in the image of God he created him; male and female he created them.”).

[30] Leonard G. Ratner, The Function of the Due Process Clause, University of Pennsylvania Law Review 116, no. 6 1048–1117 (1968).

[31] Kuckes, Niki. Civil Due Process, Criminal Due Process, pp.1-61Yale Law & Policy Review, vol. 25, no. 1, (Fall, 2006).

[32] Mathews v. Eldridge, 424 U.S. 319, 334 (1976).

[33] Id.

[34] Detroit Free Press, Inc. v. United States DOJ, 829 F.3d 478

[35] Amendment 6, USCS Const. Amend. 6 (1791).

[36] Paul v. Davis, 424 U.S. 693 (1976).

[37] David Cotriss, Keep It Clean: Social Media Screenings Gain in Popularity, Business News Daily (January 23, 2023) at https://www.businessnewsdaily.com/2377-social-media-hiring.html

[38] Alan Dershowitz, Guilt by Accusation: The Challenge of Proving Innocence in the Age of #MeToo, (Skyhorse Publishing, 2019); Karlyn Borysenko, The Dark Side of #MeToo: What Happens When Men Are Falsely Accused, Forbes (February 12, 2020) at https://www.forbes.com/sites/karlynborysenko/2020/02/12/the-dark-side-of-metoo-what-happens-when-men-are-falsely-accused/?sh=358cc6b0864d; Bianca Lallitto, 15 Shocking Cases of Cyberbullying That Led To Suicide, The Clever (August 15, 2017) at https://www.theclever.com/15-shocking-cases-of-cyberbullying-that-led-to-suicide/

[39] Borger, John P., et al., RECENT DEVELOPMENTS IN MEDIA, PRIVACY, AND DEFAMATION LAW” Tort Trial & Insurance Practice Law Journal, vol. 39, no. 2 (2004)

[40] Paul v. Davis, 424 U.S. 693 (1976)

[41] Roe v. Wade, 410 U.S. 113 (1973); Dobbs v. Jackson Women’s Health Organization,

945 F. 3d 265

[42] Harold J. Berman, Faith and Order, The Reconciliation of Law and Religion, p.12 (John Witte, Jr. 1993).

[43] Marbury v. Madison, 5 U.S. 137 (1803)

[44] Abner S. Greene, Checks and Balances in an Era of Presidential Lawmaking, The University of Chicago Law Review, vol. 61, no. 1, 123–96  (1994).

[45] Marbury v. Madison, 5 U.S. 137 (1803)

[46] Karantsalis v. United States DOJ, 635 F.3d 497, 2011; World Publ’g Co. v. United States DOJ, 672 F.3d 825, 2012; Times Picayune Publ'g. Corp. v. United States DOJ, 37 F. Supp. 2d 472, 477 (E.D. La. 1999).

[47] Hank Berrien, Oregon Prevents Release of Most Mugshots to Media, The Dailywire, (January 4, 2022)

[48] David Kravets, Mug-Shot Industry Will Dig Up Your Past Charge You to Bury It Again, Wired (August 2, 2011)

[49] Schmidt, Samantha, Owners of Mugshots.com accused of extortion: They attempted ‘to profit off of someone else’s humiliation, Washington Post (May 18, 2018) at https://www.chicagotribune.com/business/ct-biz-mugshot-website-owners-extortion-20180518-story.html

[50] § 8.01-45. Action for insulting words., Va. Code Ann. § 8.01-45 (Current through Chapter 22 of the 2022 Special Session I).

[51] Johnny McDevitt, Mugshot tabloids: defamation as the price for profitable 'schadenfreude'; Magazines access mugshots from police departments and print them for locals to see - but when they get it wrong, there are often little to no consequences. The Guardian. (September 4, 2016)

[52] Paul v. Davis, 424 U.S. 693, 697 (1976)

[53] Town & Country Properties v. Riggins, 249 Va. 387

[54] McDermott v. Reynolds, 260 Va. 98 at 101

[55] Christopher White, Automatic Booking Photo Disclosures: Dissociative Indifference to the Human Rights to Dignity, Due Process and Equality Under the Law, 6-13 (International Human Rights Law, Working Paper, May12, 2023)(The following section was predominately taken from a previous paper on the same subject but specifically international law).

[56] United Nations, Peace, Dignity and Equality on a Healthy Planet, (accessed March 9, 2023) at https://www.un.org/en/global-issues/human-rights.

[57] Mark 12:13-21 King James)

[58] Universal Declaration of Human Rights, Preamble, June 26, 1945, Stat. 1031 United Nations General Assembly.

[59] Paul v. Davis 424,  U.S. 693, 714 (1976)

[60]Stephanie Farrior Molding The Matrix: The Historical and Theoretical Foundations of International Law Concerning Hate Speech, 14 Berkeley J. Int'l L. 1, 14-15 (1996)

[61] Nicole R. Fleetwood, Racist Police Practices like mug shots normalize the criminalization of Black Americans, NBC, (August 6, 2020) at https://www.nbcnews.com/think/opinion/racist-police-practices-mug-shots-normalize-criminalization-black-americans-ncna1235694

[62] Kade Crockford, How is Face Recognition Surveillance Technology Racist? ACLU (June 16, 2020) at https://www.aclu.org/news/privacy-technology/how-is-face-recognition-surveillance-technology-racist

[63] Universal Declaration of Human Rights, December 10, 1948 ,United Nations General Assembly Resolution 217 A.

[64] Paul v. Davis, 424 U.S. 693, (1976) 714

[65] Anti-Fascist Committee v. McGrath, 341 U.S. 123 (1950), 168

[66] Gordon A. Christenson, Using Human Rights Law to Inform Due Process and Equal Protection Analyses, 51 U. Cin. L. Rev. 3 (1983)

[67] Detroit Free Press, Inc. v. United States DOJ, 829 F.3d 478, 482 (6th Cir. 2016)

[68] Council Directive 95/46, 1995 O.J. (L281) 31. at http://europa.eu.int/comm/dg15/en

[69] Glenn J. Voelz, The Rise of IWar: Identity, Information, and the Individualization of Modern Warfar,. Strategic Studies Institute, US Army War College, 119 (2015).

[70] Exodus 20:17 (King James).

[71] Proverbs 31:25 (King James).

[72] Genesis 1:27 (King James).

[73]  Brian H. Bix, Jurisprudence, Theory and Context, 114 (8th ed. 2019).

 

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