Getting arrested is bad enough, especially if you haven’t done anything. But to know that your mugshot is freely available online or might be broadcast on the nightly news is even worse. What if someone misuses their access to your mugshot to ruin your reputation or your chance for a job? How did we get here, and is there any such thing as “mugshot malpractice?”
If it’s your mugshot that’s out there, naturally you’re concerned; but it’s important to know why mug shots are public records in the first place. It all goes back to America’s founding as an answer to the kind of totalitarian government systems that had been the norm for human societies before 1776.
For most of human history, tyrants and other power abusers were happy to make people simply disappear. Tyrant kings and political parties picked up their enemies in secret at night, and even local law enforcement was largely free to do whatever they felt like. In America, making all kinds of records public was designed to change all that.
The primary reason you can so easily look up Kane county mugshots today is to protect people in Kane county, and every county, from abuse of power. Public records exist to keep the government honest, ensure lawful arrests (as much as possible), and give every arrested person a fair shake at getting a fair trial.
Of course, mugshots didn’t exist when public record laws were first enacted, so why are they included in public records now? Once mugshots became a routine part of making an arrest, there were three reasons authorities ultimately decided to make them public record:
- To protect the arrested person from ever being “disappeared.”
- To allow law enforcement to release mugshots to the public when hunting for a dangerous fugitive.
- To shame criminals, in the hopes that they would give up their life of crime.
Of course, things have changed a lot in the last 240 years. Our founders couldn’t have foreseen a world where people could sit in bed in their pajamas and access every public record from a personal computer.
And the real problem comes when people misuse their access to public records for extortion or to infringe on the rights of others. That’s when it might become possible to sue, and malpractice lawyers are the legal professionals in the best position to lead the way.
Photo by Rosemary Ketchum from Pexels
Law enforcement has access to all mugshots, but the way they use those mugshots has to be legal. When the police show mugshots to a victim, there are key rules that must be followed. When those rules are violated, people can be falsely accused or even falsely convicted.
Because mugshots are public records, they can be put on the internet. Legitimate background check websites include them along with other elements of a background check, and there’s nothing illegal or unethical about this. But some sites, like the former Mugshots.com, have less innocent motives, like extortion, fraud, and identify theft.
It’s not unheard of for malicious individuals to use a mugshot to ruin another person’s reputation or destroy their livelihood. Whether it’s an ex-spouse or the owner of a competing business down the street, abuse is real and can have long-reaching effects.
A defamation lawsuit is the only current defense against someone using a mugshot to ruin your reputation. The key to winning such a lawsuit is being able to claim a false statement; for example, that the person in the mugshot is a criminal when they actually acquitted. You must also prove the false statement has done real harm.
Mugshots are public records, but right now there isn’t one clear answer for balancing the need for transparency with the demand for privacy. Lawmakers and lawyers are working towards a solution. One day soon, we could see our first “mugshot malpractice”