Mug Shots Online Could Leave County Liable

     (CN) - A Pennsylvania county must face claims it published expunged arrest records online so that mug-shot websites could ruin the reputations of innocent arrestees, a federal judge ruled.
     When Bensalem, Pa. police, arrested Daryoush Taha, booked him and transferred him to the Bucks County Correctional Facility in 1998, the jail allegedly generated a related file that included Taha's photograph.
     Though Taha claims he "strongly believed himself to be innocent of all charges," he completed an Accelerated Rehabilitative Disposition in 2000 to expunge his case and "avoid the damage to his reputation and career prospects that would arise from having a criminal record."
     Seven years later, however, the county created a public website containing the booking photographs and arrest records of arrestees, including those "who had been arrested years before and had their charges either expunged or dismissed," Taha said.
     In turn, websites like mugshots.com, mugshotsonline.com and bustedmugshots.com allegedly snatched and published Taha's record and photo for "public consumption" without his consent as early as 2011.
     Taha, who said he had been convicted of no crime in the 13 years since his arrest, hopes to represent a class against the county, jail and websites, alleging the Internet publication of his mug shot and record caused him reputational, emotional and financial harm.
     The complaint asserts violations of Pennsylvania's Criminal History Record Information Act (CHRIA) against the county, as well as violations of a state law banning the unauthorized use of a name or likeness and invasion-of-privacy "false light" against the websites.
     In a motion to dismiss, the county defendants argued that governmental immunity bars Taha's claim for damages under Section 9121 the CHRIA, and that he has not shown a sufficient risk of future harm to seek injunctive relief under Section 1983.
     U.S. District Judge L. Felipe Restrepo denied the motion Feb. 21.
     "Given the nature of the harm that violations of the CHRIA may cause to one 'aggrieved,' injunctive relief is, at best, partial," Restrepo wrote. "Once false or inappropriate criminal history information has been released, the reputational damage is done. The bell cannot be unrung. The Pennsylvania legislature sought, in enacting the CHRIA, to protect individual privacy and dignity. Its manifest intent was to encourage compliance, and provide relief for violations, through a damages remedy. At least in the case of those provisions that can only be violated by government actors, the damages remedy constitutes a waiver of governmental immunity. I will accordingly deny the county defendants' motion to dismiss Count I."
     A defendant furthermore "cannot automatically moot a case simply by ending its unlawful conduct once sued," but must show that "it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur," the ruling states.
     "In Already LLC v. Nike Inc., the Supreme Court found Nike's 'unconditional and irrevocable' covenant to refrain from the challenged activity to meet this high threshold," Restrepo wrote. "The county and [Bucks County Correctional Facility] BCCF have not made any comparable showing. I will therefore deny the motion to dismiss Count II."