By Ruston Sanders
I was arrested and my charges were dismissed because I was innocent. Why is my mugshot still online and what can I do about it?
A person’s photograph or “mugshot” is customarily taken when he or she is arrested. Most county and municipal law enforcement agencies post mugshots on their websites as a “public record.”
The news websites or commercial sites seeking to exploit your arrest for commercial gain under the rubric of free speech scour Florida law enforcement websites to upload and post humiliating mugshots then offer to remove the mugshots for an extortionate fee. If you pay to remove a mugshot, the image often shows up on a different website and more money is demanded to remove it.
Historically, First Amendment rights outweigh the rights of an accused. Journalists decide what records or photos are newsworthy. Based on a rationale that long predates the Internet, the publication of criminal arrest records is constitutionally protected speech.
Today, the initial publication by law enforcement of mugshots of people who have not been convicted of a crime is under review. On July 1, 2018, a new Florida law will prohibit websites from charging people for removing mugshots and require the sites to remove them upon request. If the website refuses, courts may impose a civil penalty of $1,000 per day and award reasonable attorney fees.
Existing Florida laws allow for arrest records to be sealed or expunged. A sealed record is placed under highly restricted access. An expunged record is removed from record systems or files and destroyed in a process often called expunction.
Unfortunately, these laws do not control the publication of mugshots uploaded from law enforcement websites following an arrest. They do not prevent a mugshot from remaining online forever, even if the person was found not guilty or the charges were dropped. There is no ready mechanism to delete the image from the Internet. And there is no requirement for law enforcement or publishers of arrest records to broadcast that you were innocent.
The “presumption of innocence,” is one of the most sacred principles in the American criminal justice system. A person is innocent until proven guilty. The founding fathers of our nation adopted the philosophy of the English Jurist William Blackstone, who said in 1765: “It is better that ten guilty persons escape than that one innocent suffer.”
Consult an attorney to learn more about sealing arrest records and the expunction process. Hold exploiting websites accountable under the new law next year. Encourage local law enforcement and news outlets to re-examine the newsworthiness and initial online release of mugshot photos for minor offenses.
Ruston Sanders is a Santa Rosa Beach-based attorney.
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