This news out of Tucson:
Tucson, AZ (KOLD) - Late breaking news surrounding the case of Tucson shooting suspect Jared Loughner. KOLD News 13 has just learned that federal prosecutors are moving to have two counts against him dismissed.
Those two counts relate to the murders of Gabe Zimmerman and Judge John Roll. There's no indication of why prosecutors are trying to have those charges dismissed, but court documents make it clear the charges would be dismissed without prejudice. Without prejudice means those charges could be re-filed at a later time.
KOLD News 13 just spoke off the phone with Pima County Barbara Lawall for her reaction. She believes "The U.S. Attorney will most likely replace these charges with a second indictment that will be broader and more inclusive."
Three other federal counts against Loughner remain, including the attempted assassination of Congresswoman Gabrielle Giffords and the attempted murder of two other government employees Pam Simon and Ron Barber.
All told, six people were killed and 19 injured and charges are still pending in those cases.
KOLD News 13 is digging into this latest development and why prosecutors are making this move. We will bring you the latest as we learn more.
©2011 KOLD. All rights reserved.
Here's the latest motion from Loughner's lawyers:
United States District Court, D. Arizona.
UNITED STATES OF AMERICA, Plaintiff,
v.
Jared Lee LOUGHNER, Defendant.
No. 11CR00187-LAB.
February 10, 2011.
Emergency Motion to Bar Release of Post-Arrest Photographic Images of Defendant
Judy Clarke, Clarke and Rice, APC, 1010 2nd Avenue, Suite 1800, San Diego, CA 92101, (619) 308-8484.
Mark Fleming, Law Office of Mark Fleming, 1350 Columbia Street, #600, San Diego, CA 92101, (619) 794-0220.
Reuben Camper Cahn, Federal Defenders of San Diego, Inc., 225 Broadway, Suite 900, San Diego, CA 92101, (619) 234-8467, Attorneys for Defendant Jared Lee Loughner.
MOTION
Defendant, Jared Lee Loughner, by and through his counsel, hereby moves the Court for an order barring the United States Marshals Service (“U.S. Marshals”) from releasing post-arrest photographic images (mug shots) of the defendant to the public. This motion is made pursuant to the Privacy Act, 5 U.S.C. § 552a, the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, and any and all relevant federal statutory provisions, criminal rules, and the United States Constitution. The motion is based on the below Statement of Facts, Legal Analysis, attached Exhibit A, and any and all materials that may come to this Court's attention at the time of the hearing on the motion.
STATEMENT OF FACTS
This motion was necessitated by the United States Marshals Service's intent to release to the public a post-arrest photographic image (“mug shot”) of Mr. Loughner. Defense counsel was advised of the intended release on February 7, 2011. We are not aware of the source of the request but only that the request was apparently made through FOIA.
Release of the mug shot appears to be in violation of U.S. Marshals policy, which “generally prohibits public release of prisoner mug shots [under the Privacy Act] ... except in the Sixth Circuit.” A copy of the policy was provided to defense counsel and is attached hereto as Exhibit A.
The decision to release the mug shot to the public was apparently based on the majority opinion in a split (2-1) decision of the Sixth Circuit in Detroit Free Press. Inc. v. Department of Justice. 73 F.3d 93 (6th Cir. 1996). Detroit Free Press, however, is not the rule in the Ninth Circuit. No other circuit court, to defense counsel's knowledge, has adopted the rule of Detroit Free Press. Its holding has been rejected by federal courts in other circuits as conflicting with controlling Supreme Court precedent in United States Dep't of Justice v. Reporters Comm. for Freedom of the Press. 489 U.S. 749 (1989).
There appears to be no basis for invoking any of the exceptions to the U.S. Marshals policy.
LEGAL ANALYSIS
Public disclosure of the booking photo violates the Privacy Act and policy of the U.S. Marshals Service. The booking photo is not subject to disclosure under FOIA. Release of the photograph conflicts with the parties' interests in avoiding the case being tried in the media rather than in court.
A. The Privacy Act
The Privacy Act places a strict limitation on the public release of government information on private individuals. Its rule is mandatory: “No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains, unless disclosure of the record would be ... required under section 552 of this title.” 5 U.S.C. § 552a(b)(2). The rule applies here. The U. S. Marshals Service is a government agency; Mr. Loughner's booking photograph falls squarely within the statutory definition of “record.” See 5 U.S.C. § 552a(a)(4) (“the term ‘record’ means any item ... about an individual that is maintained by an agency ... and that contains his name ... or other identifying particular assigned to the individual, such as a ... photograph”).
B. The Freedom of Information Act
Although the Freedom of Information Act sets forth a general rule of public disclosure, it is subject to express limitations. By its own terms, FOIA “does not apply to matters that are ... records and information compiled for law enforcement purposes ... to the extent that the production of such law enforcement records or information ... could reasonably be expected to constitute an invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C).
The “invasion of personal privacy” exception applies here. The mug shot (1) was created for law enforcement purposes; (2) reasonably triggers individual privacy concerns; and (3) its release does not advance any public interest advanced by FOIA.
1. The mug shot was “compiled for law enforcement purposes”
First, there is no doubt that the booking photo clearly qualifies as “records and information compiled for law enforcement purposes.” See, e.g., Detroit Free Press, 73 F.3d at 96 (holding that “[t]he threshold requirement for exemption from disclosure of information under § 552(b)(7) is ... met by the mug shots created by the United States Marshals Service in its law enforcement capacity.”).
2. Release of the mug shot could “reasonably be expected to constitute an invasion of privacy”
Second, public release of the booking photo, or mug shot, could “reasonably be expected to constitute an invasion of public privacy.” 5 U.S.C. § 552(b)(7)(C). As at least three federal judges have recognized, mug shots are much more revealing--and potentially invasive of one's privacy-- than an ordinary photograph. See Detroit Free Press, 73 F.3d at 99-100 (Norris, J., dissenting); The Times Picayune Publishing Corp. v. U.S. Dep't of Justice, 37 F. Supp. 2d 472, 477 (E.D. La. 1999); Karantsalis v. United States Dep't of Justice, No. 09-CV-22910, 2009 WL 6058930, at *4 (S.D. Fla. 2009) (unpublished).
Specifically, mug shots are powerfully associated with criminality. As Judge Berrigan of the Eastern District of Louisiana has put it:
... [A] mug shot is more than just another photograph of a person. Mug shots in general are notorious for their visual association of the person with criminal activity. Whether because of the unpleasant circumstances of the event or because of the equipment used, mug shots generally disclose unflattering facial expressions. They include front and profiles shots, a backdrop with lines showing height, and, arguably most humiliating of all, a sign under the accused's face with a unique Marshals Service criminal identification number.
Times Picayune, 37 F. Supp. 2d at 477; see also Detroit Free Press, 73 F.3d at 99 (Norris, J., dissenting) (“mug shots are widely viewed by members of the public as signifying that the person in the photo has committed a crime”); Karantsalis, 2009 WL 6058930, at *4 (“A booking photograph is a vivid symbol of criminal accusation, which, when released to the public, intimates, and is often equated with, guilt.”). Indeed, the emotional impact generated by mug shots exceeds the mere fact of guilt. It can have a “stigmatizing effect” that may “last well beyond the actual criminal proceedings”:
As in the cliche, a picture is worth a thousand words. For that reason, a mug shot's stigmatizing effect can last well beyond the actual criminal proceedings. Furthermore, just because somebody has conceded guilty does not negate that person's interest in nondisclosure of the mug shot. A mug shot preserves, in its unique and visually powerful way, the subject individual's brush with the law for posterity. It would be reasonable for a criminal defendant, even one who has already been convicted and sentenced, to object to the public disclosure of his or her mug shot.
Times Picayune, 37 F. Supp. 2d at 477 (holding that press was not entitled to mug shot even after defendant pleaded guilty).
Furthermore, and apart from the implications of criminality, the nature of information captured by mug shots are inherently private. Specifically, mug shots reveal what individuals look like at their most humiliated moments-- information which is, by nature, highly private. As Judge Norris has explained:
[A] mug shot conveys much more than the appearance of the pictured individual. Unlike a photograph taken under normal circumstances, it relates a number of facts about a person, including his expression at a humiliating moment and the fact that he has been booked on criminal charges.
Detroit Free Press, 73 F.3d at 99 (Norris, J., dissenting); see also Karantsalis, 2009 WL 6058930, at *4. (“Further, a booking photograph captures the subject in the vulnerable and embarrassing moments immediately after being accused, taken into custody, and deprived of most liberties.”).
These authorities convincingly refute the contrary conclusion reached by the 2-judge majority in Detroit Free Press. There, the majority held that no privacy interest was at stake because “the indictees [whose mug shots were at issue] had already been identified by name by the federal government and their visages had already been revealed during prior judicial appearances,” 73 F.3d at 97--in other words, that there was little harm to privacy because the information was already public. But what the Detroit Free Press majority did not mention, however, was that the Supreme Court has rejected precisely such a rationale. See Reporters Committee. 489 U.S. at 762-63 (holding that disclosure of FBI rap sheet, even though all the information it contained was already publicly available, fell within FOIA's subsection 7(C) exemption); cf Detroit Free Press. 73 F.3d at 99 (Norris, J., dissenting) (“the [Supreme] Court rejected a very similar argument in Reporters Committee). In Reporters Committee, news media plaintiffs made exactly the arguments that the Sixth Circuit majority revived in Detroit Free Press, that no privacy interest remained because information had “been previously disclosed to the public.” Reporters Committee. 489 U. S. at 762. The Supreme Court rejected that position as a “cramped notion of personal privacy,” explaining that privacy must be understood in context. Id at 763-64 (“information may be classified as ‘private’ if it is ‘intended for or restricted to the use of a particular person or group or class of persons: not freely available to the public’ ”).
Reporters Committee is controlling authority here; it concerned the same FOIA exemption provision--subsection 7(C). Mug shots fall squarely within the Supreme Court's definition of privacy in that case because they are taken for a strictly limited purpose:
[M]ug shots contain information that is intended for the use of a particular group or class of persons. They are taken for law enforcement purposes, and they are not routinely made available to the public. This is precisely the Webster's definition of privacy adopted by the United States Supreme Court in Reporters Committee, “not freely available to the public.”
Times Picayune. 37 F. Supp. 2d at 477-78 (quoting Reporters Committee. 489 U.S. at 764); see also Karantsalis, 2009 WL 6058930, at *4 (“booking photographs taken by the Marshals Service are generally not available for public dissemination; an attribute which suggests the information implicates a personal privacy interest”). In sum, the booking photo falls within the personal privacy exemption of § 552(b)(7)(C).
3. Release of the photo does not advance any legitimate FOIA interest
Finally, there exists no legitimate public interest under FOIA in disclosure of the booking photograph. The purpose of FOIA is to shed light on the federal government's performance of its duties. Thus, FOIA's basic policy “focuses on the citizens' right to be informed about what their government is up to.” Reporters Committee. 489 U.S. at 773 (quotation marks omitted). Core information targeted by FOIA is “[o]fficial information that sheds light on an agency's performance of its statutory duties.” Id. Information about private individuals, however, typically falls outside FOIA's boundaries. As the Supreme Court has held:
[FOIA's] purpose, however, 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.
Id. Here, just as in Reporters Committee, disclosure of the booking photograph “would not shed any light on the conduct of any Government agency or official.” Id; Times Picayune, 37 F. Supp. 2d at 479 (“Disclosing information about private citizens that happens to be in government files does not foster that purpose if it reveals little or nothing about the agency's own conduct.”).
There exists no relevant FOIA interest here. Such an interest must be measured by the actual public interests at stake; “a FOIA requester does not create a legitimate public interest in disclosure through mere speculation about potential public interests that possibly could be served.” Times Picayune. 37 F. Supp. 2d at 479-80 (citing United States Dep't of State v. Ray. 502 U.S. 164, 179 (1991)). Thus it is no answer to claim that disclosure of the photograph could shed light on abusive practices of the U.S. Marshals where, as here, there is no such evidence in the record. See id.; see also Detroit Free Press. 73 F.3d at 99-100 (Norris, J., dissenting) (citing United States Dep't of State v. Ray. 502 U.S. 164, 179(1991)).
In sum, release of the booking photograph would invade privacy interests while serving no legitimate public interest recognized by FOIA. As the Supreme Court has stated:
[T]he FOIA's central purpose is to ensure that the Government's activities be opened to the sharp eye of public scrutiny, not that information about private citizens that happens to be in the warehouse of the Government be so disclosed.
Reporters Committee, 489 U.S. at 774-75 (emphases in original). In view of this sharp distinction between public and private information, the Supreme Court has remarked that “it should come as no surprise that in none of our cases construing the FOIA have we found it appropriate to order a Government agency to honor a FOIA request for information about a private citizen.” Id at 775. This Court should not become one of the few federal courts to hold it appropriate for “a Government agency to honor a FOIA request for information about a private citizen.” Such a ruling would violate the Privacy Act, the U.S. Marshals' policy, and conflict with the Supreme Court's decision in Reporters Committee.
CONCLUSION
Defendant requests that this Court enter an order prohibiting the U.S. Marshals Service from releasing to the public Mr. Loughner's post-arrest booking photo.
DATED: February 10, 2011
Respectfully submitted,
/s/ Reuben Camper Cahn
Judy Clarke
Clarke & Rice, APC
Mark Fleming
Law Office of Mark Fleming
Reuben Camper Cahn
Federal Defenders of San Diego, Inc.
Attorneys for Defendant Jared Lee Loughner
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