6th Circuit says internet is cruel to criminal defendants

In a Freedom of Information Act ruling that restricts public access to mug shots of people arrested by federal authorities, the United States Court of Appeals for the Sixth Circuit managed to overturn its own precedent from just 20 years ago while setting a new precedent that has a dangerous potential to allow the government to act in greater secrecy.

In a 9-7 decision, the 6th Circuit, which sits in Cincinnati, upheld a Department of Justice policy to keep mug shots private, finding that criminal defendants “enjoy a non-trivial privacy interest in their booking photos.” The ruling was written by Judge Deborah Cook, a former Ohio Supreme Court justice from Akron who was nominated to the appeals court in 2001 by President George W. Bush. A strong dissent was written by Judge Danny Boggs, an appointee of President Ronald Reagan who has served on the court since 1986.

The Detroit Free Press – joined by scores of open government advocacy organizations – has been fighting for routine access to mug shots of people indicted and arrested for federal crimes for a quarter of a century. They thought they had won in 1996 when the Sixth Circuit held that the federal FOI Act required the release of booking photos of criminal defendant who had appeared in court. The court found that criminal defendants lacked any privacy interest in the photos.

That might be viewed as a common sense ruling falling under the general concept that the inmates should not be in charge of the jail.

But the U.S. Department of Justice never gave the Sixth Circuit’s ruling the respect it deserved. It wasn’t so concerned about giving inmates control over what was released as it was protecting its control of who saw what and when.

Over a period of two decades, the department violated the Sixth Circuit’s ruling with impunity, requiring not only the Free Press but other newspapers, including the Akron Beacon Journal, to shoulder the extraordinary expense of federal district court suits to uphold its validity. The Department of Justice simply waited the press out, and with the changing composition of the court, the DOJ finally got what it wanted.

Two other circuit courts issued opinions at variance with the Sixth Circuit, and, in 2012, the U.S. Marshal Service announced that it would follow those court decisions, even in the Sixth Circuit, which covers Ohio, Michigan, Kentucky and Tennessee. The Department of Justice decided that the Sixth Circuit was irrelevant, and, amazingly, Judge Cook and eight colleagues have now rewarded that intransigence.

The justice department argued that the people it arrests and charge have a right to privacy that is more important that the First Amendment right of the press to keep the public fully informed.

But, of course, DOJ itself does not recognize this supposed sacred right to privacy. It is free to release mug shots whenever it chooses. Such discretion by prosecutors is deemed to be more important than the alleged right to privacy conferred on criminal defendants by the court. The need for government transparency? Well, that’s not a DOJ priority. More troubling, government transparency is no longer a priority for a majority of judges on the Sixth Circuit Court of Appeals.

The reasoning behind the court’s latest ruling borders on the bizarre. The emergence of the Internet since 1996 has made access to public information too public. And some entrepreneurs have turned cataloguing booking photos into a business. This bothers the court, but the fact that booking photos are taken when an arrestee is in “a vulnerable and embarrassing moment” is simply too much for the court to bear.

There’s an old saying that bad cases make bad law. So what’s the case in which the Detroit News felt it had to challenge the Department of Justice’s refusal to honor the 1996 Sixth Circuit ruling?

It involves four suburban Detroit police officers arrested in on charges of accepting bribes and conspiring to distribute cocaine.

They accepted money in exchange for not appearing in court to testify against a man they had arrested. Then they graduated to drug running, accepting payment to deliver what they thought was six kilograms of cocaine for an FBI informant. They carried their police guns and badges while protecting the “cocaine” shipments. There was videotape of two of the cops accepting a $10,000 bribe.

They pleaded guilty to various charges and received sentences ranging from 12 to 18 months in prison.

These are the men that the Sixth Circuit Court has chosen to give a privacy right, lest they be subject to “embarrassing and humiliating facts – particularly those connecting an individual to criminality.”

The court would hold the Detroit News to account for the possible embarrassment of these men, when any embarrassment falls squarely on the crooked cops.

When the prosecutions were concluded, Paul M. Abbate, special agent in charge of the FBI Detroit field office, said the case “sends another message that corrupt police officers who accept bribes and use their positions for personal financial gain will be punished.” Yet, the Department of Justice and the Sixth Circuit Court of Appeals feels that releasing the mug shots of these miscreants would be a step too far.

We mentioned that the court’s latest ruling has a dangerous potential for expanding government secrecy.

Here’s why: Nothing that the court said about the easy access of booking photos on the Internet could not be said about textual information on the Internet.

In this case, type “four highland park police officers” in a Google search and the first entry will lead you to a Detroit.com story that reports the 2013 arrest of Anthony Bynum, then 29; Price Montgomery, 38, Shawn Williams, 33, and Craig Clayton, 55, on charges of accepting bribes and conspiring to distribute cocaine.

We do not generally fear slippery slopes. But in this case, by indicting the press and the Internet for facilitating the embarrassment of criminal defendants in the release of their booking photos, the court invites a claim by future defendants who feel entitled to privacy regarding their names, their charges and their sentences – all of which will reside in perpetuity on the reviled Internet.

We look forward to the intellectual gymnastics that the court will have to perform when the next bad case requires it to defend the historical openness of our judicial system. We can only hope that when that day comes, the court gets it right.