On July 23, 2021, AB 1475 was signed into law. AB 1475 was authored by Assemblyman Evan Low, D-Campbell, who had noticed an alarming trend of police and sheriff’s departments posting mugshots online in order to “shame” suspects, with no real public safety purpose behind the postings.[1] The purpose of AB 1475 is to limit putative harms to individual reputations and social perceptions due to law enforcement posting booking photos to social media, and also to provide a mechanism for nonviolent arrestees to initiate the removal of those photos from social media.
AB 1475 forbids any police departments or sheriff’s offices in the state of California from posting booking photos of suspects of nonviolent crimes on social media platforms, unless a limited circumstance applies, such as when the suspect is considered a fugitive or poses an imminent threat.[2] Prior to this new law, it had been common practice for law enforcement agencies and news media to regularly publish mugshots. However, with the growing reach and long-term effects of social media and digital images, critics have argued that the posting of booking photos online engenders negative consequences such as the diminished presumption of innocence until proven guilty, lost employment opportunities, public scrutiny, and perpetuation of stereotypes. Photos of suspects remain on the internet for years, even when the suspect is no longer at large or considered an ongoing threat to public safety.
Under AB 1475, law enforcement may share booking photos of an individual arrested on suspicion of committing a crime[3] on social media only under the following circumstances:
- For violent crimes (i.e., murder, voluntary manslaughter, rape, lewd or lascivious acts, robbery, arson, assault with intent to commit a specified felony, carjacking, etc.);[4]
- For nonviolent crimes[5], if any of the following circumstances exist:
- The suspect is a fugitive or an imminent threat to public safety and releasing or disseminating the suspect’s image will assist in locating or apprehending the suspect or reducing or eliminating the threat;
- A judge orders the release or dissemination in furtherance of legitimate law enforcement interest; or
- There is an “exigent circumstance” that necessitates the dissemination of the suspect’s image (broad exemption).
Requesting Removal of Past Photos of Suspects Under AB 1475
AB 1475 allows nonviolent arrestees or their representatives to initiate a request to remove past photo(s) that have been published on social media, and as a result, local law enforcement agencies will be required to remove the photo if the affected person is found not guilty, has had their records sealed or has had their conviction dismissed, pardoned, expunged or issued a certificate of rehabilitation. The police department or sheriff’s office must remove the booking photo from the social media page within 14 days upon request. However, it is important to note that law enforcement agencies are under no duty to take down old booking photos that do not comply with the law unless a request is made by the affected person or their representative.
How Local Governments & News Agencies are Working to Comply with AB 1475
Several police departments, sheriff’s departments, and other government agencies are working to update their policies in order to comply with AB 1475. For example, the Santa Clara County District Attorney’s Office already has a policy that complies with AB 1475. “Our general policy is to only release mugs if there is a public safety reason to do it or we believe there are additional victims to find,” said Sean Webby, spokesman for the District Attorney’s Office.[6]
San Francisco Police Chief Bill Scott instituted a department directive against the release of booking photos in most circumstances because their publication creates an “illusory correlation for viewers that fosters racial bias and vastly overstates the propensity of black and brown men to engage in criminal behavior.”[7]
Several news agencies have also instituted policies to not publicize the names and booking photos of suspects who have been arrested but not formally charged by District Attorney’s office, unless there is a major violent crime or an arrest following police or FBI investigations. The Associated Press recently adopted a policy to “no longer name suspects in minor crime stories,” noting that there is rarely any follow-up coverage on the outcome of these type of cases, particularly whether charges were ultimately reduced or dropped.[8]
California Public Records Act Will Not Be Affected by AB 1475
The public right to request booking photos remains unaffected by AB 1475. The Public Safety Committee analysis on AB 1475 concluded that “this bill does not disturb the public right to request and access mug shots, nor does it limit a police agencies’ ability to disclose such documents to the public under the Public Records Act [PRA].” Rather, this new law specifically prohibits, under certain circumstances, the posting of booking photos on social media platforms as a recognized single medium for disclosure.
If you have any questions regarding AB 1475, or how to adopt policies in compliance with this new law, please contact your OMLO attorney.
OMLO will continue to monitor these developments carefully. This article is for informational purposes only and only provides an overview of specific developments. It is not intended to be, and should not be construed as, legal advice for any particular fact situation. For actual legal advice and specifics pertaining to your governmental entity, please contact your OMLO attorney for assistance.
[1] https://www.mv-voice.com/news/2021/07/27/new-california-law-prohibits-law-enforcement-from-posting-mugshots-on-social-media
[2] https://www.sacbee.com/news/politics-government/capitol-alert/article253001368.html
[3] 2021 California Assembly Bill No. 1475, California 2021-2022 Regular Session.
[4] Pen. Code Sec. 667.5(c).
[5] AB 1475 Sec. 2(c)(1).
[6] https://www.mv-voice.com/news/2021/07/27/new-california-law-prohibits-law-enforcement-from-posting-mugshots-on-social-media
[7] AB 1475 Sec. 1(h).
[8] https://www.mv-voice.com/news/2021/07/27/new-california-law-prohibits-law-enforcement-from-posting-mugshots-on-social-media