Pennsylvania County Owes $67 Million After Man Finds Arrest Records on Mugshots.com
Elsewhere in the country, lawsuits and legislation seek to protect people from predatory mugshot sites.
Katie Rose Quandt Aug 27, 2019
In 2011, Daryoush Taha’s friend alerted him to something shocking: Taha’s photograph and personal information on the website Mugshots.com.
Taha, then 40, had been arrested 13 years earlier in Bucks County, north of Philadelphia, on charges of disorderly conduct and resisting arrest, and had spent one night in jail. He later sued the police department for what he alleged was a wrongful arrest. Despite maintaining his innocence, he agreed to complete a one-year probation program in exchange for having the arrest expunged from his record.
But, as Taha learned, the local jail where he spent that night in 1998 held on to his supposedly destroyed records. Thirteen years after his arrest, those records were included in the county jail’s new public-facing online “inmate lookup tool,” where they were obtained and republished by Mugshots.com.
Soon after discovering his mugshot, Taha sued Bucks County and the jail in federal court. He alleged that each of the 67,000 booking records on the lookup tool violated Pennsylvania’s 1980 Criminal History Record Information Act (CHRIA), which prohibits non-police criminal justice agencies from sharing criminal records with the public. In May, after the contentious suit stretched on for more than six years, a jury determined the defendants had acted willfully, and awarded $1,000 in punitive damages to each affected individual, for a total fee of $67 million. In July, Judge Wendy Beetlestone entered a judgment in favor of Taha and the plaintiffs.
Taha’s suit ultimately dropped Mugshots.com as a co-defendant because private companies are not governed by CHRIA’s publication rules. But in California, Attorney General Xavier Becerra has brought criminal charges against Mugshots.com’s four owners, accusing them of extortion because they charged people a fee to remove their listings. The preliminary hearing in that case is set to move forward this fall.
On July 29, Bucks County filed a notice of appeal against the Taha decision, after previously announcing in a statement that “we vigorously dispute that Taha or the class members he represents are entitled to any punitive damages at all.”
But advocates and experts say such exposure hurts people’s job prospects and personal lives. “Once false or inappropriate criminal history information has been released, the reputational damage is done,” the former judge on the case wrote in a 2014 memorandum denying the county’s motion to dismiss. “The bell cannot be unrung.”
Studies have repeatedly shown that criminal records create significant barriers to employment, housing, and building a successful life.
About 1 in 3 working-age Americans have a record of some sort, including non-conviction arrests. “If they were a kid underage drinking at 18, 19, that shows up. Come on, that’s not fair,” said Maurice Jones, an operations manager at an electronics recycling nonprofit in Philadelphia that provides transitional employment for people recently out of prison. “And we know how the quote-unquote system works. If you’ve got a couple bucks, you make that go away. But that won’t happen somewhere that people don’t have a couple bucks to eat that night.”
Claudia De Palma is an attorney with the Fair Employment Opportunities Project, a project of the Public Interest Law Center that works to combat the high unemployment of people with criminal records in Pennsylvania. “You don’t have to have been convicted of anything to have a record,” she said. “And as you can imagine, especially in overpoliced communities, it’s very common to get arrested and then released.”
De Palma said her organization aims to reinforce CHRIA through litigation, public education, and helping companies develop best hiring practices. CHRIA prohibits employers from taking non-conviction arrests into account when hiring, along with convictions that are not directly relevant to the job opening. And in Philadelphia, a Ban the Box ordinance places additional anti-bias restrictions on employers.
You don’t have to have been convicted of anything to have a record.
Claudia De Palma
Fair Employment Opportunities Project
But especially outside Philadelphia, “what we find is that clients get ghosted,” said De Palma. “Clients often call me and say, ‘Everything was going great until I gave them my record and then they disappeared.’ But that employer is never going to say, ‘Oh, it was because of your background.’”
Depending on the state, certain criminal records can even systematically disqualify people from professional licenses, blocking off entire fields, such as finance, law, roofing, cosmetology and barbering, and insurance sales. When he returned from prison, before managing the recycling nonprofit, Jones had other plans. “I was going to get my associates degree in nursing, and then I was going to get an RN to BSN. I thought that was my path.” But after completing courses at a community college, he found out his conviction banned him from the field.
Arrest records and booking photos have been part of the public record in the United States for more than a century. Many people—including members of the media—believe the right to obtain and publish criminal records helps ensure a transparent, open government. But the policies governing these records were often set long before the advent of the internet.
“It used to mean that, in person, you’d have to go to the jail or go to the courthouse to pull the paper file,” said Sarah Lageson, an assistant professor at the Rutgers University-Newark School of Criminal Justice, who contributed expert testimony at the Taha trial. “And in that way, there was this idea of practical obscurity. You had to go for a single file. You couldn’t just get a bulk download like you can today.”
De Palma echoed her concerns, noting that today, third-party companies obtain online police blotters, mugshots, and court records, which they compile into error-ridden background checks that they sell to employers and landlords. “It’s just become a really big industry. … And these companies aren’t regulated at all, really,” she said. “So clients will have an employer run a background check, and there will be information on there that’s not them, if they have a common name. It will include information that’s been expunged or sealed, because it’s stale. It will sometimes not indicate whether the charge was dropped or not.”
And as was the case for Taha, online records are also obtained by predatory websites that collect and republish them for general consumption. In his original complaint, Taha alleged that Mugshots.com charged $400 to remove a record—a business model that added up to $2.4 million in removal fees over three years, according to the arrest warrant filed by California AG Becerra last year.
“He wants to get off of that site, but refuses to pay. And I understand his position, because it’s extortion,” said Alan Denenberg, one of Taha’s attorneys. He said the website’s owners have ignored all court filings, including a 2016 injunction from Judge Beetlestone ordering them to unpublish Taha’s records. Mugshots.com did not respond to a request for comment.
Even as the websites come under more scrutiny, their republishing activities are legal if they rely on ad revenue, not removal fees.
The arrest papers that California’s attorney general filed against Mugshot.com’s owners last year contained several personal accounts of people victimized by the website. One woman said her deceased husband’s arrest record remained on the site years after his death, appearing as the top internet search result for their son of the same name. Two people said they were unable to find work after applying to 100 jobs. Another man had spent more than $4,000 to remove his records from several websites.
Since 2013, at least 16 states have passed laws banning or regulating mugshot website takedown fees. Mugshots.com added disclaimers to its website, claiming to be a news organization and stating that it does not accept payment for mugshot removal. But even as the websites come under more scrutiny, their republishing activities are legal if they rely on ad revenue, not removal fees.
Denenberg described the sites as “digital whack-a-mole. You paid one site to take it down, and it popped up on another.”
In addition to laws regulating mugshot takedown fees, many states are implementing measures to limit the negative effects of a criminal record. The Collateral Consequences Resource Center recently reported that in April, May, and June of this year, an “eye-popping” 75 laws were enacted in 26 states.
Sixty percent of the new laws address record sealing or expungement. A March paper by University of Michigan Law School professors found that people who obtained expungement went on to have extremely low rates of recidivism and saw their wages increase by an average of 25 percent over the following two years. However, just 6.5 percent of those eligible went through the steps to attain expungement within five years.
Once it’s out there, it’s out there.
Rutgers University-Newark School of Criminal Justice
Last year, Pennsylvania passed groundbreaking “clean slate” legislation that went into effect in June, which will automatically seal certain records after a set amount of time. Five other states have implemented similar measures, prompting the resource center to call it “the wave of the future.”
But Taha’s case highlights how difficult this can be in the internet age.
Expungement means “you can look a judge in the eye and go, ‘Yeah, I’ve never been arrested,’ even if you had been,” said Lageson. “And that’s fine in a sort of abstract world, but a person who’s looking for a job—they’re stuck in this place where they get to exercise their right under the expungement statute. … And then the employer Googles, and their mugshot comes up on the internet. So they look like a liar and a criminal, which is sort of a double whammy for people.”
Lageson supports additional measures that would limit the information from entering the public record in the first place. “This is the right time to think about regulating access to criminal records in the government sector,” she said. “Because once it’s out there, it’s out there.”
She pointed to a 2016 federal court decision that blocked media and others from obtaining booking photos from federal court cases, overturning a 20-year-old legal precedent. “A disclosed booking photo casts a long, damaging shadow over the depicted individual,” Judge Deborah Cook wrote in the majority opinion, noting that when the precedent was set in 1996, “booking photos appeared on television or in the newspaper and then, for all practical purposes, disappeared. Today, an idle internet search reveals the same booking photo that once would have required a trip to the local library’s microfiche collection.”
New York State made a similar change in March as part of its budget deal, banning police from publicly releasing a mugshot unless it serves a “specific law-enforcement purpose.” Governor Andrew Cuomo’s initial proposal to ban public release of all booking information was heavily criticized: The New York Civil Liberties Union said it would “unduly restrict proper access to public records which are critical to police oversight,” and an Albany Times Union editorial argued, “we don’t have secret trials in a free society, or secret arrests.”
Lageson pushed back on the idea that mugshots mean transparency in the criminal legal system, noting that many European countries shield records from the public in the name of privacy and rehabilitation. She said the fear of a “closed government” that operates in secret “really kind of chills the conversation” around reforming how mugshots and arrest records are published. But even today, with public records plastered across the internet, she observed, “we don’t have good access to the justice system. This fantasy that mugshots tell us anything about how police are operating, I just don’t buy the argument.”
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