Is Shaming Alleged Shoplifters Illegal?

On behalf of The Marks Law Firm, L.L.C. posted in Criminal Law on Friday, April 12, 2013

The St. Louis Post-Dispatch reported on Thursday that the O’Fallon Police Department has begun a policy of posting on its website the mug shots of all individuals arrested for shoplifting. Each person shares the tag, “Recent Shoplifting Suspects,” and includes the individual’s full name and the place of arrest.

The police department began the policy hoping to deter shoplifting, which it notes causes significant economic harm to the community, though it does not know whether it has been on the rise.

We have a long tradition in our nation that a person is innocent until proven guilty. The O’Fallon Police Department, no matter how noble its intention, seems to have turned this presumption on its head. The individuals arrested are not wanted fugitives, so no public safety concern would justify the need to post the mug shots of the suspects. None of the individuals have actually been convicted of a crime, so the posting would not be part of a court-ordered punishment. While the matter of an arrest is a public record, does that automatically mean the police have a right to publicize certain arrests with tag lines on its website?

The First Amendment gives the public and the press access to certain police records, including arrest reports. So, if a local politician or celebrity had recently been arrested for domestic assault or driving under the influence, the First Amendment would require the police to disclose some of the details of those charges, the only limits usually those necessary to safeguard the integrity of an ongoing investigation or to protect the privacy of victims or witnesses. So, when Lindsey Lohan has a run-in with the law, we see her mug shot because the First Amendment requires its release. But public figures must take the good with the bad in terms of publicity. Why should private individuals face a shaming for something they may not have done, and certainly something the State has not yet proven in court beyond a reasonable doubt?

It seems the police department may be treading on dangerous ground. While the police cannot hide from the press or the public the arrest of any adult (juveniles have more protections of privacy), we usually do not see the police taking the bold initiative of posting arrest records selectively on government websites. Perhaps we do not feel the outrage because the charge seems minor. In that case, imagine every person arrested for a sex offense had an arrest posted in the same manner with the tag, “Sex Offender Suspect” – if you had been wrongly charged, would you want the damage to your reputation? Remember – internet posts live forever in the Google servers, so a future search even after the charges would be dropped could still pull up the mug shot and the tag, easily accessible to any future employer or would-be spouse.

Precisely because arrests are not convictions, individuals who subsequently are found not guilty may easily have their arrest records expunged. But if the police begin posting arrests in this manner, expungement will be a meaningless act – an employer will still discover the arrest and the damage to the person continues. Further, Missouri law (Section 610.120 RSMo) requires arrest records and criminal histories of individuals remain confidential with few exceptions. So, it seems this form of permanent publication could run afoul of Missouri law.

Government policies that violate our constitutional rights can result in civil liability for municipal governments, police departments and individual officers, if they acted in a manner that was deliberately indifferent to those rights. As you might imagine, that is a very high standard to meet. Would the awareness that posting the arrests of suspects not yet convicted, posts that live on forever in the Internet and could tarnish the reputation of the innocent for years to come qualify as deliberately indifferent? We do not know the answer to that question at the moment, but it certainly seems to highlight the questionable value of singling out individuals for shame or infamy or ridicule in this manner when they remain presumed innocent. And even in the case of persons who later plead guilty or are found guilty by a judge or jury, the criminal justice system already has a system of punishments for every offense – and none of them include public shaming and actively distributing the fact that a person has been convicted of a certain offense. Criminal justice involves paying a penalty for a wrong, but also having the opportunity to return to society with a chance to rebuild a life without the cloud of a virtual neon sign screaming “felon” following a person around forever. That is why many find sex offender registries too harsh, as they penalize too many people for too long way in excess of any real danger they pose to society. Indeed, the Supreme Court has found sex offender registries constitutional only because of the public safety rationale.

Hopefully, the O’Fallon Police Department will reconsider the consequences of their policy and modify it in a manner more respectful of the rights of the innocent and more in line with the proper role of law enforcement in the criminal justice process.

If you have been arrested and had your mug shot posted online, contact us – we can help.

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