Ninth Circuit: Posting Jail Mugshots on Arizona County’s Website Violates Substantive Due Process
Like many jurisdictions, Arizona’s Maricopa County maintained a website where mugshots were posted of those arrested and booked into the county jail. The photos were accompanied by personal identifying information, including names and birthdates. But after a ruling by the United States Court of Appeals for the Ninth Circuit, the County was forced to take down the mugshots on September 16, 2024.
Brian Houston’s mugshot was posted after he was arrested for assault in 2022—a charge that was later dropped. He then filed a lawsuit that alleged substantive and procedural due process violations from the “public exposure and humiliation” of having his mugshot and identifying information publicized. Houston argued that he was arrested, not convicted, and therefore presumed innocent. Therefore, posting his mugshot amounted to punishment, which is prohibited for those not convicted of a crime by the Fourteenth Amendment.
The County responded that posting the mugshots promoted “transparency in the criminal legal system,” and the federal court for the District of Arizona found that justification sufficient to dismiss the case in 2024 for failure to state a claim. Houston appealed, and the Ninth Circuit reversed in part on September 5, 2024.
The Court of Appeals first addressed the substantive due process claim, noting that pretrial detainees may not be subject to punishment per Bell v. Wolfish, 441 U.S. 520 (1979). At the pleading stage, Houston had sufficiently alleged he was harmed by having his mugshot posted in the form of public exposure and humiliation, which “almost anyone would regard as profoundly undesirable,” the Court agreed, citing Demery v. Arpaio, 378 F.3d 1020 (9th Cir. 2004).
Furthermore, Houston argued his mugshot was accompanied by his name, birthdate and other identifying information. That resulted in permanent damage to both his business and personal reputation. The Court of Appeals agreed that the County’s practice of posting arrestee mugshots constituted punishment. Shredding the County’s primary defense, the Court said “transparency” was “not a talisman that dispels the specter of government punishment.” Here, the Court found no indication that the county posted the mugshots “in the context of furthering public safety,” or that its mugshot policy was rationally related to such an interest.
“Nowhere does the County explain how posting specific, highly personal information about individual arrestees online—including Houston’s image, birthdate, full name, appearance details, and charges—furthers any transparency interest,” the Ninth Circuit wrote. Nor did the mugshots include other relevant information such as the names of the arresting officers, the location of the arrest, the arresting agency, etc. All of that would also provide “transparency” with respect to the county’s criminal legal system.
Finding no rational relationship between the County’s mugshot policy and its stated justification for that policy, the Court said it might infer that the County was in fact “motivated by punitive intent.” Accordingly, dismissal of Houston’s substantive due process claim was reversed and the case remanded.
With respect to his procedural due process claim, however, the Court of Appeals held that Houston had not shown a state-created liberty interest in keeping his birthdate private. Using the two-prong test laid out in Marsh v. Cnty. of San Diego, 680 F.3d 1148 (9th Cir. 2012), the Court of Appeals found that Houston failed to meet the second prong, “which requires mandatory language directing a certain outcome if specified substantive conditions are met.” In short, he had not demonstrated that publicly posting his personal information “implicated a cognizable ‘liberty or property interest’ grounded in state law”; therefore, dismissal of his procedural due process claim was affirmed. See: Houston v. Maricopa Cty., 116 F.4th 935 (9th Cir. 2024).
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