The posting of mug shots of people arrested on government websites amounts to illegal pretrial punishment, the 9th Circuit Court of Appeals ruled Sept. 5.

In a unanimous ruling, the three-judge panel gave the go-ahead for Brian Houston to sue Maricopa County over its sheriff’s department routinely putting pictures of anyone processed through its jail on the internet. Judge Marsha Berzon, writing for the panel, rejected arguments by the agency that the posting serves a legitimate public purpose.

The ruling, however, does not just affect Houston’s ability to seek compensation.

He filed suit on behalf of others who have found themselves in this situation. And now, with a formal court opinion, they, too, can file their claims.

There was no immediate response from the sheriff’s department.

According to court records, Houston was arrested by Phoenix police in January 2022 and charged with assault. As part of the booking process, his photo was taken and posted, along with many others, on the county’s publicly accessible website.

Next to his mug shot photo were his full name, date of birth, and a listing of the “crime type.”

But the site also has a “more details” button revealing his sex, height, weight, hair color, eye color, and the specific charges on which he was arrested.

Pursuant to agency policy, the post remained online for about three days. Houston was never prosecuted on the charges on the post, which were later dropped.

That, however, didn’t end the issue.

Houston said that third-party websites “scrape” such information and post it on their sites.

He specifically cited mugshots.com which, according to its own records, has the mug shots of about 909,000 Arizonans, the vast majority from Maricopa County.

All that, Houston said, caused him emotional distress and public humiliation and permanently damaged his business and personal reputation.

Berzon said it is clear that governmental actions that harm people who have been arrested, before they are ever tried, can violate their due process rights if it is “impermissibly punitive.”

In this case, she said, the county put forward only one nonpunitive reason for posting Houston’s mug shot and personal information: transparency. But the court was not persuaded.

“That word is not a talisman that dispels the specter of government punishment,” Berzon said, calling it “quite a vague concept.” And, she said, something more is needed to prove a legitimate governmental interest, something the judge said that the county has so far failed to do.

Consider, she said, that the information is posted in a form where it is available across the world. How, then, Berzon asked, does that promote public safety in Maricopa County.

“Nowhere does the county explain how posting specific, highly personal information about individual arrestees online – including here, Houston’s image, birthdate, full name, appearance details and charges – furthers any transparency interest,” she wrote.

And the judges were unimpressed by the county’s argument that putting this information online helps educate Maricopa County residents about how the government – or the legal system – operates.

If there were an actual educational component, she said, the information would not be taken down after three days. And then, Berzon said, there is the decision to post personal information unrelated to the crime, like date of birth, height, eye color and hair color.

“The county nowhere purports to show, much less succeeds in showing, why this level of granular detail about Houston’s body and personal identity rationally furthers an interest in government transparency,” the judge said.

And there’s something else.

Berzon said what the county does not post also shows this isn’t about transparency.

“Houston’s published arrest record left out a range of pertinent details, including the names of the officers who arrested Houston, the location of his arrest, the arresting agency (in this case, the Phoenix Police Department, not county officials), the jail in which Houston was held, and whether charges were ultimately pursued,” the judge said.

“The county provides no rationale for excluding from Houston’s post information about government conduct that would have provided insight into the county’s criminal legal system while including significant personal information about Houston wholly irrelevant to that goal,” Berzon said.