Additional mug shots of Jared Lee Loughner, the Arizona man accused of killing six people and injuring 13 others — including U.S. Rep. Gabrielle Giffords — in January, were released Tuesday after a federal judge refused to enjoin their release.
The U.S. Marshals Service released the mug shots after U.S. District Court Judge Larry Burns refused to seal the photographs after a hearing Friday. Loughner's legal team and U.S. government lawyers argued that the photographs should be exempt under Exemption 7(c) of the federal Freedom of Information Act. They claimed that Loughner's personal privacy rights would be violated if the photographs were released. Both sides also questioned whether Loughner would be able to receive a fair trial if the mug shots were made public.
Loughner's legal team filed an emergency motion on Feb. 10 to keep the mug shots from being released after being notified by the Marshals Service that it intended to release them in response to several FOIA requests.
After a stay was issued by the federal district court, the government filed a motion on Feb. 14 in support of Loughner's Feb. 10 motion. The two sides agreed that the photos would violate Loughner's personal privacy rights under FOIA. The Marshals Service was only compelled to release the photographs because the U.S. Court of Appeals in Cincinnati (6th Cir.) held in 1996 in Detroit Free Press v. Dep't of Justice that mug shots must be released, the motion claimed. Since that ruling, the Marshals Service has been releasing mug shots to requesters that reside within the Sixth Circuit's jurisdiction.
The government's motion asserted that Detroit Free Press was "wrongly decided" and asked the district court to act to prevent the Marshals Service from releasing the mug shots, which it was currently "bound by circuit law to release."
Burns found that the district court did not have the authority to order the release or to order the mug shots sealed because it "has no authority to overrule binding 6th Circuit precedent interpreting FOIA." Burns questioned Loughner's privacy interests in releasing the mug shots, which he said were "tamer" than the Pima County mug shots already released. Burns also questioned whether release of the mug shots jeopardized Loughner's right to a fair trial. The court's refusal to seal the records forced the Marshals Service to respond to the information requests, ultimately leading to their release Tuesday.
Politico reporter Josh Gerstein received the mug shots late Tuesday after the paper's contact in Ohio received the response to their request. Politico had made the request through the Ohio contact because it is in the Sixth Circuit. There will definitely be more fights in the future, but Burn's added statements were an "unexpected victory," Gerstein said.
"There were no media entities fighting before [Judge Burns]," Gerstein said, "and yet he decided on his own to do the opposite of what both the prosecution and the defense were asking for. That's pretty impressive."
Indeed, Gerstein insists that the released photographs prove further that there is great public interest in seeing the photographs because they clearly show Loughner with facial injuries.
"There is value in seeing what condition a person is in when they are arrested," Gerstein said.
Gerstein said he believes that only in extraordinary circumstances of grave privacy concerns should mug shots be withheld from disclosure. Gerstein, like Burns, was not persuaded by concerns over Loughner receiving a fair trial. "Jurors are smarter than people give them credit for."
Once mug shots are released to requesters in the Sixth Circuit, the Marshals Service generally releases the photographs to all requesters, Gerstein said.
The Marshals Service could not be reached for comment.