Posting photos of arrested people on government websites constitutes an illegal pretrial disciplinary measure, the 9th Circuit Court of Appeals ruled Sept. 5.

In a unanimous ruling, a three-judge panel green-lighted Brian Houston’s lawsuit against Maricopa County over his sheriff’s department’s routine posting of photos of people held at the jail online. Judge Marsha Berzon, writing for the panel, rejected the agency’s argument that the posting served a legitimate public purpose.

However, this ruling does not affect Houston’s ability to seek compensation.

He filed a lawsuit on behalf of others who have been in the same situation. And now, with a formal court opinion, they can file their claims, too.

There was no immediate response from the sheriff’s office.

Houston was arrested by Phoenix police in January 2022 and charged with assault, according to court records. As part of the booking process, his mugshot was taken and posted, along with many others, on a county website that is publicly accessible.

Next to his mugshot were his full name, date of birth and a detail of the “type of crime.”

However, the website also has a “more details” button where you can find information about his gender, height, weight, hair and eye color, as well as the specific charges on which he was arrested.

In accordance with agency policy, the post remained online for about three days. Houston was never charged with the charges related to the post, which were later dropped.

This, however, did not end the matter.

Houston said third-party websites are “scraping” such information and publishing it on their sites.

He cited the website mugshots.com as the reason, which according to its own data has mugshots of about 909,000 Arizonans, the vast majority of whom are from Maricopa County.

All of this, Houston said, caused him mental anguish and public humiliation, and permanently damaged his business and personal reputation.

Berzon said it is clear that government actions that harm people arrested before they are tried can violate their right to a fair trial if they are “impermissibly punitive.”

In this case, she said, the county presented only one noncriminal reason for releasing Houston’s photo and personal information: transparency. But the court was not convinced.

“That word is not a talisman that dispels the specter of government punishment,” Berzon said, calling it “a pretty vague concept.” She added that more is needed to prove a legitimate government interest, which the judge said the county has failed to do so far.

Consider, she said, that the information is being released in a form in which it is available worldwide. So how, Berzon asked, does this promote public safety in Maricopa County.

“Nowhere do county officials explain how posting online specific, highly personal information about individual arrestees — including Houston’s image, date of birth, full name, details of appearance, and charges — serves any transparency interest,” she wrote.

The justices were not impressed by the county’s argument that putting the information online helps educate Maricopa County residents about how government — or the legal system — works.

If there was a real educational component, she said, the information wouldn’t have been deleted after three days. And then, Berzon said, there’s the decision to publish personal information unrelated to the crime, such as date of birth, height, eye and hair color.

“The County nowhere attempts to demonstrate, much less fails to demonstrate, why such a detailed description of Houston’s body and her personal identity rationally serves the government’s transparency,” the judge said.

And there is something else.

Berzon said what the county is not publishing also shows there is no transparency.

“Houston’s published arrest records omitted a number of important details, including the names of the officers who arrested Houston, the location of his arrest, the arresting agency (in this case, the Phoenix Police Department, not the county), the jail where Houston was held and whether charges were ultimately filed,” the judge said.

“The county provides no justification for excluding from Houston’s record information about government actions that might shed light on the county’s criminal legal system while at the same time including significant personal information about Houston that is completely irrelevant to this purpose,” Berzon said.