U.S. Marshals Service explains mug shot release

Christine Beckett | Freedom of Information | Feature | February 24, 2011

The U.S. Marshals Service on Tuesday released mug shot photographs of the man accused of killing six and injuring 13 others in the January Arizona shooting that claimed the life of a federal judge and severely injured U.S. Rep. Gabrielle Giffords. While the government claimed in litigation that it did not want the photographs released, the U.S. Marshals Service said it was impartial on the issue and was strictly adhering to the law.

The general policy at the U.S. Marshals Service is not to release mug shots, according to David Gonzales, U.S. Marshal for the District of Arizona. In most of the country, the agency's stance is that mug shots are exempt from FOIA under Exempton 7(c)'s protections against the invasion of personal privacy. However, they release mug shots to some requesters due to "a little wrinkle in the Sixth Circuit," Gonzalez said.

In 1996, the U.S. Court of Appeals in Cincinnati (6th Cir.) held in Detroit Free Press v. Dep't of Justice that mug shots must be released. Since that ruling, the Marshals Service has been releasing mug shots to requesters that reside within the Sixth Circuit's jurisdiction.

Gonzales insisted that the Marshals Service has no position on the issue of releasing mug shots. "Personally, we don't care if they're released," he said. The decision on whether to release the photographs is a matter or policy and law.

"We are generally forbidden to release [mug shots]," he said. "We must abide by the law."

Requests for access to Jared Lee Loughner's mug shots from Sixth Circuit residents led to motions from the prosecution and the defense asking a federal judge to seal the photographs. District Court Judge Larry Burns refused to enjoin the release of the mug shots, finding he did not have the authority to overrule the decision of an appellate court.

The litigation in this case was instigated by the Marshals Service's decision to warn Loughner's lawyers that the mug shots were going to be released. Gonzales said he chose to warn Loughner and the presiding judge not because he did not want to release the photographs, but because the decision was contrary to general practice in Arizona, which is under the jurisdiction of the U.S. Court of Appeals in San Francisco (9th Cir.).

Gonzales also contradicted Politico reporter Josh Gerstein, who said he believed the Marshals Service released the photos to all requesters once the photographs were given to Sixth Circuit requesters. This is not the case, Gonzales said. The mug shots were only given to requesters who reside within the jurisdiction of the Sixth Circuit and will continue to be given only to those requesters, no matter how widely distributed and well-known the photographs become, he said.

Many news organizations that obtained the mug shot on Tuesday, like CNN and Politico, filed FOIA requests through contacts in the Sixth Circuit, Gonzales said.

The Sixth Circuit is the only appellate level court to rule on the issue of mug shots, though the U.S. Court of Appeals in Atlanta (11th Cir.) will hear oral arguments in a mug shot case, Karantsalis v. Department of Justice, next week.