A U.S. District Court judge in Arizona issued a stay Friday to prevent the immediate disclosure of additional mug shots of Jared Lee Loughner, who is accused of killing six people and injuring 14 others, including U.S. Rep. Gabrielle Giffords, in a January mass shooting in Tucson. A hearing will be held Feb. 18 to determine whether or not the photos should be released in response to a request under the federal Freedom of Information Act.
Loughner's legal team filed an emergency motion Thursday to keep the mug shots from being released. They claimed the materials were exempt from disclosure under the federal Privacy Act and FOIA Exemption 7(c), which protects individuals from unwarranted invasions of personal privacy. The motion was precipitated "by the United States Marshals Service's intent to release to the public a post-arrest photographic image . . . of Mr. Loughner," according to the motion.
In addition, Loughner's counsel argued that there is no legitimate public interest in the release of the photos. "The purpose of FOIA is to shed light on the federal government's performance of its duties," the motion said, adding that there is nothing about the federal government's duties that the mug shots would shed light on.
Josh Gerstein, a reporter at Politico, said he made a request for the mug shots, but is not sure if it is his request that precipitated the filing because the Marshals Service has not responded to the request. He said the release of mug shots has a public purpose, not least of which is to shed light on the treatment of prisoners, even if there is no evidence of mistreatment in this situation.
The federal courts' restrictions on cameras are another reason the photos should be released, Gerstein said. "Images of someone in federal custody are so rare," he said. He also questioned why the federal courts will not allow access because most state and local courts release mug shots.
"Why not give [the photographs] to the public?" he asked. "Sketch artists are okay, but not photographs or video?"
Loughner's defense attorneys claimed that the privacy exemption to FOIA clearly applies and if the mug shots are released, they would be forced to try the case "in the media rather than in court." The motion maintains that Loughner has not lost his privacy interest regarding the mug shots even though the Pima County Sheriff's Department released a mug shot of Loughner in January. The motion said that "the emotional impact generated by mug shots exceeds the mere fact of guilt," and releasing them could stigmatize Loughner.
"Mug shots reveal what individuals look like at their most humiliated moments — information which is, by nature, highly private," it said.
Only one federal appellate court — the U.S. Court of Appeals in Cincinnati (6th Cir.) in Detroit Free Press, Inc. v. Department of Justice — found that the release of mug shots of indicted individuals does not constitute an invasion of person privacy under FOIA Exemption 7(c). The U.S. Supreme Court has never ruled on the issue. Disclosure of mug shots under FOIA is also at issue in a pending case before the U.S. Court of Appeals in Atlanta (11th Cir.), Karantsalis v. Department of Justice, where the lower court upheld the Marshals' decision to withhold mug shots that had been requested by a journalist.
The U.S. government has until Feb. 14 to file an opposition to the motion to bar release of the photos. The identity of who requested the mug shots has not been released.